Factually! with Adam Conover - The Plot to End Voting Rights with Rick Hasen

Episode Date: August 2, 2023

We consider democracy a fundamental American value, but the reality is that we haven't been truly democratic for as long as our country has existed. Not only is the right to vote not constitutionally protected, but it also faces constant attacks from anti-democratic campaigns funded by billionaires, aiming to make voting more difficult. This week, Adam is joined by Rick Hasen, a UCLA professor of law, to uncover the genuine threats to elections and explore potential solutions. Find Rick's book at factually.com/booksSUPPORT THE SHOW ON PATREON: https://www.patreon.com/adamconoverSEE ADAM ON TOUR: https://www.adamconover.net/tourdates/SUBSCRIBE to and RATE Factually! on:» Apple Podcasts: https://podcasts.apple.com/us/podcast/factually-with-adam-conover/id1463460577» Spotify: https://open.spotify.com/show/0fK8WJw4ffMc2NWydBlDyJAboutHeadgum: Headgum is an LA & NY-based podcast network creatingpremium podcasts with the funniest, most engaging voices in comedy toachieve one goal: Making our audience and ourselves laugh. Listen to ourshows at https://www.headgum.com.» SUBSCRIBE to Headgum: https://www.youtube.com/c/HeadGum?sub_confirmation=1» FOLLOW us on Twitter: http://twitter.com/headgum» FOLLOW us on Instagram: https://instagram.com/headgum/» FOLLOW us on TikTok: https://www.tiktok.com/@headgumSee Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

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I don't know the way. I don't know what to think. I don't know what to say. Yeah, but that's all right. That's okay. I don't know anything. Hello and welcome to Factually. I'm Adam Conover. Thank you so much for joining me once again as I talk to an incredible expert

about all the amazing things that they know that I don't know and that you might not know. If you're listening on YouTube, go check us out on your favorite podcast player. If you're listening on your favorite podcast player, hey, check us out on YouTube if you want to see this episode in video form. Now, on this show, we're going to be talking about something that's going to sound like a conspiracy theory. It's going to sound like I've been hanging out on the wrong Reddit forums. But this is one of those conspiracies that's actually just true. American democracy is under attack right now. Literally, powerful people in our society are trying to make our country less democratic so they can call the shots.

Which is nuts because, you know, in school we were all taught that, you know, democracy is a fundamental American value. But the truth is, America hasn't been truly democratic for almost its entire history. In the 1960s, the system of social and political exclusion known as Jim Crow, America's very own apartheid system, severely curtailed black voting rights in the South. Black people were a full 20 percent of the Southern population, but the white population called all of the shots. And it took massive and heroic resistance of the civil rights era to bring Jim Crow to an end.

This required legal victories and iconic legislation, the Civil Rights Act, the Voting Rights Act, which together for the first time turned America into something like a democracy for all of its citizens just, you know, 60 short years ago. And I grew up, as many of you did, having been taught this story of grand American triumph, the lunch counter sit-ins, MLK, the March on Washington. We expanded democracy for everyone. And because of this story's power, I couldn't imagine an end to this sort of moral and political progress. Well, guess what? In recent decades, there has been a concerted, billionaire-funded campaign to roll the progress of American democracy back. This anti-democracy campaign has funded activism,

litigation, and legislation designed to make voting more difficult for people of color, the young, and the poor, and probably you. It seeded panic over the non-existent problem of voter fraud and used the courts to take a hatchet to the centerpiece of the Voting Rights Act. And this effort has fostered an environment of increased distrust in elections for those on the right, which made it easier for Donald Trump to try and overturn his defeat in 2020. So how far backwards have we slipped? How much of American democracy have we lost? What impact has this movement had? And how can we fight back? Well, to answer that question, we have an amazing guest for you today.

But before we get to that, I want to remind you that if you want to support this show and help keep it free for everyone listening, I hope that you will support us on Patreon. Just head to patreon.com slash Adam Conover. Just five bucks a month gets you every episode of this podcast ad free, plus a lot of extra goodies. And if you like stand up comedy, please come see me on tour this year. If you're in Buffalo, Baltimore, St. Louis, or Providence, Rhode Island, or elsewhere across the country, head to adamconover.net for tickets and tour dates. I'd love to see you there. I do a meet and greet after every show,

and I love meeting all you folks who listen to the podcast. Now, let's get to today's guest because we have a banger today. His name is Rick Hasson, and he is a professor of law at UCLA and one of the foremost experts on election law in America. He's the author of many books, including Election Meltdown, and his newest book is called A Real Right to Vote. Please welcome Rick Hasson. Rick, thank you so much for being on the show. It's great to be with you. So, look, we have this legend we're told about America as children, that America is the most democratic country on earth, and that it's

gotten more democratic over time. As someone who studies this, what is your view on that? Is America more or less democratic than it was, say, just a couple decades ago? You know, things go up and down. They go in cycles. Certainly, more people are eligible to vote today formally than ever in American history. Right? It took the 15th Amendment and then the Voting Rights Act to enfranchise black Americans.

It took the 19th Amendment to enfranchise women. So in that way, things are much better. There are no poll taxes, property tests for voting. Those things are gone. But it's not a kind of linear progression. Right after the Civil War, blacks were voting in large numbers and sending their preferred candidates to Congress and electing them to bodies.

And then you had in the South a retrenchment. And it was decades. The Jim Crow era. Right. It was decades until, you know, had some federal troops to register voters. Well, and in fact, a lot of the country for a hundred years after that point,

we had black elected officials in this country. And then the Jim Crow era began. And then for a hundred years, America was a functional apartheid state where you had a, in many places, a black majority and a white minority who were the only ones who were functionally able to vote. And that persisted until the 60s. Unless I'm wrong. I don't mean to tell you, the election expert, this. So it differed in different parts of the country,

but things were worse in the South. But there were some places in the North where they weren't so great either. Very much so. And today, it's much easier to vote than it was before 1960. But maybe in some places it was easier 20 years ago to register and vote than it is now. It really depends on what you're talking about. In research that I was doing for my upcoming book, A Real Right to Vote, I looked at how Native American voters are treated in the Dakotas and in other places. And in some ways, that looks like the Jim Crow South. You know, a number of these eligible voters live on reservations, which don't have residential

street addresses. And when the state passes a law that says you need a residential street address if you want to vote, that can functionally serve to disenfranchise people. Many, many, many people in America don't have residential street addresses if they live in a vehicle, if they are unhoused in some other way, or if they have a strange address. I mean, I just live on a... My address is, for some reason, doesn't come up in a lot of databases, and I'm constantly in a situation where someone's like, I can't find your address in I mean, I just live on it. My address is, for some reason, doesn't come up in a lot of databases. And I'm constantly in a situation where someone's like, I can't find your address in the system, so we can't help you. I'm like, no, it's a real, like this happens to people,

right? And when those barriers are in place, it actually stops people from voting. Yeah. So I think we need to step back for a minute and talk about how the United States, if not unique, is extremely rare among modern democracies in that it's really decentralized, right? So we conduct something like 10,000 different elections when we hold a presidential election. Meaning because the elections are run by a state or local body. They're generally run by the county level. It's a mix of rules from the US Constitution and from federal statutes and state law and then on the county level. So it's decentralized.

We also run elections with, in some places, partisan election officials. Someone runs for Secretary of State in California here as a Democrat or Republican. Right. That's weird. Yeah. And the state or the government, I should say, doesn't have a responsibility to automatically register all voters. Even here in California where we have so-called automatic voter registration, that's just if you go to the DMV. It's not as though you have state workers

going from place to place making sure everybody's registered. Lots of places also, lots of other countries, they have a national voter ID. Voter ID is radioactive here because the way that states have put those requirements in place are sometimes discriminatory. So in a place like Texas, a concealed weapons permit can count as a valid ID, but a student ID cannot. But in a country where everyone who's eligible to vote is registered as soon as they're eligible and they have that voter registration number for their whole lives, it's more seamless. They're not what I've called the voting wars, the fights over these election rules. And if

someone is otherwise eligible to vote, they don't have to jump through hurdles to be able to do it. Well, so when we talk about these hurdles, you mentioned, you know, the Jim Crow era, the poll taxes, right? Or the tests that people, people would be forced to take literacy tests to see if they could vote in some places. And part of, again, what I was taught in school was that was racist. It was discriminatory. It was anti-democratic and we got rid of it. And Hey, everything's fixed, right. We solved all the problems of American racism with the civil rights in the civil rights movement in the 60s. Now there are states putting in new restrictions of varying types based on the state, whether it's an I.D. rule or, you know, you see things happening, like, say, in Florida, where the voters voted to give former felons the right to vote. And then the state ends up stripping a lot of that right away and making them like pay these fees. They have to

pay like the court fees or whatever before they can vote. When you look at those restrictions, do they resemble those Jim Crow restrictions to you? Do you look at that and say, hold on a second, a barrier to voting is a barrier to voting. So I think it depends on what you're talking about. So some things like during COVID, we saw a big expansion of voting by mail, which made a lot of sense because people weren't comfortable going in person. And also because it was hard to get workers to work at polls in person. And so now there's been a pulling back in some places on vote by mail. I don't think that pullback is justified by, say, a concern about fraud the way that Trump and others. But that's kind of a policy choice that

we leave to states. But then there are other things that do look like Jim Crow. I like your example about the felon disenfranchisement laws. It's pretty interesting that both Democrats and Republican voters in Florida overwhelmingly supported the re-enfranchisement of felons after they completed their sentences. And then the legislature came in and said, wait a minute, you've got to pay your fines and fees. That's what it means to have completed your sentence. The problem in Florida is that there is no central repository of information about whether you've paid your

fines and fees. So if you're a former felon and you're deciding, should I register to vote? And you don't know 20 years ago when you were charged in another Florida county, if you owe $100, are you going to bother to register when you could be committing another felony? And how do you even find that information? Like if you owe the money and if you're worried that, hold on a second, because in some of these places, they actually make it a crime to try to vote when you're not able to. There are cases in which people have been charged for attempting to vote just because they were confused.

That's going to cause all those people to just stay miles away from the voting system, which again, that sounds not dissimilar to Jim Crow to have there be barriers where, hey, if you want to vote, you need to pay some money. You might go to jail. There might be retribution against you if you try to vote. That results in entire swaths of people saying the election system isn't for me. Right. And I think that the purpose is that we know that in Florida, black felons, felons in Florida are more likely to be black and black voters are more likely to vote for Democrats. And so the thinking is, I think this is either discrimination against blacks or discrimination against Democrats. Whether it has that effect is a different question. But what the intent is, I think the intent is to give an advantage in a state where you're worried about close elections.

Last year, Governor DeSantis held a press conference where he said, you know, we're going after the scoff laws. And who did he go after? In that law that Florida passed, that voter initiative that restored felon rights and said you didn't have to go through this process where the governor and a board has to restore your rights. It was an exception for people who committed sex-related crimes and committed murder. And so there were some people who committed sex-related crimes many years ago, some of them, and they were sent a voter registration form by the local board in some cases. They went to register to vote.

And then they were arrested, like in raids. Meanwhile, we know of at least four voters in the villages. The villages is this retirement community, very big community in Florida. Very, a lot of Trump supporters there. Very affluent folks that's expensive we know at least four voters who were um convicted of uh or pled pled guilty to double voting voting in both florida and another state a lot of snowbirds in florida right so you might like live in new york during the summer but in the winter you go down to Florida, you might be registered in both places. Some people voted in both places.

DeSantis has not gone after them. Yeah. They're white Republican Trump supporters. But also, either of those examples is 99% chance that someone making an honest mistake. is 99% chance that someone making an honest mistake, you know, like, like even, even like, even there's some number of snowbirds, right. Doing this, this is not my biggest concern about the election system that somebody is like flying back and forth, et cetera. There's going to be like, we don't need to be arresting people for, for making voting errors. Do we? Well, so yeah, I agree that we do not need to arrest people for

making voting errors. And so, for example, if someone honestly thought they were eligible to vote because Florida announces felons are re-infringed. And they got a form in the mail. Right. I think that is something that should not be prosecuted. But if you know that it's illegal to vote in two states and you vote by mail in one state and you vote in person in the other, that's a crime. Now, that doesn't mean you go to jail for 20 years, but it's a crime and it should be prosecuted. I think we do have to take real election crime seriously. I'm worried about, for example, the attempt to overturn the 2020 election. So there are election crimes we need to take seriously, but honest mistakes, another thing that Florida is doing, they passed a law that said that if you are, they're trying to make it harder to register voters to vote, right?

Again, these hurdles that almost no other country, democratic country puts in front of voters. They made it a crime if you're a non-citizen to go out and handle a voter registration form or to give certain information to voters. So if you're a green card holder, you're allowed to engage in certain political activity. You're allowed to make contributions to candidates. You're allowed in, I think, every other state to go out and help register voters, even if you can't vote yourself. Florida has made that a crime. And a federal district court judge just last week said that's unconstitutional yeah now he's a pretty liberal democratic appointed judge he's been overturned before by the 11th circuit uh when

uh you know he found other florida laws were discriminatory so i don't know if it's going to stick but again you know what what crime are we really the crime crime of voting? Is that what is so terrible? And the very strange thing is that, you know, these laws that DeSantis' group is putting in place to restrict voting by former felons, this is, this was originally an initiative that the voters voted through in massive numbers, Republicans and Democrats and independents all voted and said, yes, we want to reenfranchise our fellow citizens after they have served their time. This is part of reentering society. This is what it means to be an American.

You get a vote no matter what, you know, no matter who you are. And they they voted for that in enormous numbers. And then the legislature and the governor go and say, no, that's too much democracy for us. No, no. We think that's those are scoff laws. We want to make sure that I mean, it seems so un-American to me to do that. And it's not just because it's it's, you know, DeSantis and those folks in Florida. It's un-American to try to restrict voting like that anywhere. I mean, where did this what happened to, to voting as a fundamental American value?

Well, first of all, the Constitution does not protect anyone's right to vote. That's what my upcoming book is about, A Real Right to Vote. What does the Constitution say about voting? First thing it says is, who can vote for a member of Congress? Whoever the state says can vote for the state representatives, they get to vote for Congress. It doesn't say any particular person gets the right to vote. Then what's the next thing it says? It says no discrimination in voting on the basis of race. So if you're going to hold an election, you can't say whites only. Next thing it says is 19th Amendment, can't discriminate on the basis of gender.

There's no affirmative right to vote. You, you know, you look at the Canadian Constitution, the German Constitution, you look at other advanced democracies that we would compare ourselves to, and their constitutions contain a right to vote. And I bet if you asked Americans, even if you asked like, you know, civics kids in, you know, 10th grade or whatever, and said, list the rights that are to you in the Constitution, they would say, oh, free speech, freedom of religion. And I bet more than half of them would say the right to vote because it's inculcated in us as a right that we have.

And yet it is not. That is bizarre. So, but even in the 14th Amendment, which was the amendment passed just before the 15th Amendment that said no discrimination in voting on the basis of race. In the 14th Amendment, it included a penalty for certain states that didn't give representation to African-Americans, but it had an exception for felons. So there's been a longstanding tradition in this country of felon disenfranchisement. The way that that's changed has been state by state.

And many states have taken the view when you are incarcerated, you lose your right to vote like you lose your freedom of movement, right? Ordinarily, we have freedom to go where we want. When you're in prison, you don't because you've committed a crime. But once you've completed have moved towards the reenfranchisement of felons. But that's not in the Constitution. Lawsuits that have tried to get either the Constitution or the Voting Rights Act interpreted to require the reenfranchisement of felons have failed. So it's going to be a political movement.

Yeah. It's going to- And it has to be state by state. Or you can have a US constitutional amendment, but that's hard to do. I think we might have a little trouble getting an amendment through any time soon. But I actually argue in this book that we need to think of the 19th. I spent a lot of time studying the 19th Amendment. That's the one that enfranchised women in the 1920s.

The movement started in the 1780s. And it really took off at the time after the Civil War. There was a woman named Virginia Minor. She was a Missouri resident, white woman, citizen. She went to the Supreme Court. She said, hey, we just passed the 14th Amendment. The 14th Amendment says that I'm entitled to all the privileges or immunities of citizenship. I should be allowed to vote.

They're not letting me vote because I'm a woman. And the U.S. Supreme Court said, yes, you're a citizen. You have the privileges or immunities of citizenship, but voting is not one of those. That's really up to the state. Wow. So we have this long history of leaving that question. That was in 1780? That was in 1877.

In 1877. 1780 is when the movement towards women's infrasurization started. This was 100 years into the movement. Right. They were saying that. Holy shit. So in the 1870s and forward, women and men started organizing state by state. And they started changing state constitutions to give women the right to vote.

started organizing state by state and they started changing state constitutions to give women the right to vote. So by the time you got to the 1920, when Congress considers this, many of the members of Congress had come from states that had enfranchised women. And so the lesson to be learned from all of this is that movements to expand voting rights can be organized around constitutional amendments, but it takes time. So it might not be my generation or your generation. It might take two more generations. But that movement itself pays dividends. And it does work, as we saw in Florida, that when you put it to the voters, and there's

been a lot of progress in states using the sort of state ballot systems because voters generally love democracy. If you say, hey, should there be more democracy? Most Americans raise their hands and say yes, because they have that American value. But when it comes to the reason that our election system is so local, that it's not enshrined in our Constitution in a way that guarantees it to people, it's state by state. enshrined in our constitution in a way that guarantees it to people. It's state by state. So much power is devolved upon the state. And that means you have people in different states voting for the same national offices, but using radically different rules that are run by different people all over the country. Why do we have a system like this? And is there any argument for it? We've talked about a lot of the downsides already, but is there any benefit to having a locally run election system? Well, the reason for it, I think, is the age of our constitution.

You know, lots of democracies have newer constitutions. You know, France, Germany gets a new one after World War II. Same with Japan, right? We've always done it that way. And then it's hard to change it because there's a vested interest in. So you may remember after 2000, the disputed election, Bush versus Gore came down to Florida's votes and the US Supreme Court ends up deciding to stop a recount and Bush narrowly wins the election. Congress passed a law two years later called the Help America Vote Act. And one of the things it did was it created an

agency called the United States Election Assistance Commission. I'm sure you've never heard of it. Well, very few people have. It has very little power. All it does is it was able to give out money to fix the voting machines. Remember the hanging chads, the bad voting machines? Oh, the voting machines are broken. Get 50 bucks from the election commission in here. Hire a guy. So all they do is put out data and suggest best practices. They have no power of anything.

And both Democratic and Republican secretaries of state, the chief election officer of state, have called for the agency to be disbanded because it's too powerful. Wait, they say because it's too powerful, they say. Even with its toothless role, it's too powerful because it's a turf war thing. So what are the arguments for local control? Well, one argument is accountability. If a Democrat or Republican runs in California for secretary of State, we now expect because of the different ideologies, a Democrat might run the election differently than a Republican. So that might be a reason. And if you have it on the local level, if you don't like how the local registrar of voters is running things, you can go complain to your county board as opposed to trying to complain to some federal agency far away. So that's the argument for local control.

Another argument that has been made in favor of local control, you have to look at 2020. Imagine if Trump were having some control over how a federal election was run. He could have tried to subvert the election in a national way. Here, he had to go to the Secretary of State of Georgia. He had to go to the legislators in Wisconsin. Yeah, but he lost a couple of states. If it had been down to one state and it had, there's one of the final episodes of Succession had a scenario like this, right? Where if it comes down to one state and then something goes very wrong at just that one state level, you know, maybe the election goes a little bit differently. It does come down to just Georgia and the people in Georgia are a little bit

friendlier. And that's essentially what happened in Florida, right, that that it was the decision of a of a Florida court body, right, that the Supreme Court declined to overturn. So it was a Florida decision that affected the national election, right? Yes, but not quite. So in Florida, you had a state Supreme Court that was dominated by Democrats that ruled in favor of Al Gore, the Democrats, to keep counting the votes. And then you had the conservatives on the Supreme Court reverse that decision. So I like to say that everybody agrees the problem in Bush versus Gore was an out-of-control court. It's just that Democrats think that's the US Supreme Court and Republicans think it's

the Florida Supreme Court. But again, it's kind of a crazy system. So that episode of Succession gave me hives. I wrote a piece in Slate that it's just like- Oh, how so? I want to hear a little bit more. So usually when I watch TV and they've got an election scenario or a law scenario, I'm rolling my eyes like this is so unrealistic.

But they had come up with a very plausible nightmare scenario. And it turns out a couple of my friends who are election lawyers were consultants for the succession. It was a fire at a voting center, right? Where a bunch of paper ballots were stored. Yeah, these were ballots, mail-in ballots. And then, you know, what do you do? Do you rerun the election?

You know, and there's riots in the streets and it's outcome determinative. You know, the Republican wins if these ballots are not counted. And back in Florida in 2000, you may remember the butterfly ballot. I don't know if you remember this. Look, here's the thing. For me, the 2000 election was the first election that I participated in in any way, even just emotionally. And so the one before that,

Clinton's last election, whatever, I was a little bit too young. But then I was, oh, yeah, we got to care about this, blah, blah, blah, blah, blah. And so for my first experience of an election to be this election with all this controversy and judicially decided outcomes, it was, I think it really shaped my view of democracy as I think it did for a lot of my generation. Yeah. I mean, it was a cathartic moment for the United States and a wake-up call about how poorly run our election system was. Our election systems are actually run much better today in terms of the machinery. Okay.

I was going to say a wake-up call and we went right back to sleep because I didn't think we improved anything. Maybe I'm wrong. So, you know, by 2004, just the next election, we think that a million fewer people had their votes not counted because of poor technology. So lots of people voted in Florida, and their votes didn't count because when they tried to punch out the little piece of paper, the hanging chad, it got stuck. Yeah. So the punch card voting papers, I've got a machine machine and I have my students come and look at it in my office, a Florida 2000 voting machine.

That was state of the art for 1945. And they were running the elections in 2000 using that. So things were especially bad in the Palm Beach County area. There were, I think, 13 candidates running for president. The local election administrator, who was a Democrat, said, you know, I've got a lot of elderly voters. It's going to be really hard for them to read all these names on the ballot. So I'm going to make the font larger, and I'm going to print it on both sides of the

page. This is why it's the butterfly ballot, because it's symmetrical. And so you had names on this side and names on this side and arrows pointing to the middle, but it didn't actually line up. The holes didn't line. So you had the so-called Jews for Buchanan vote. You had all of these elderly Jewish people- Yeah. Voting for an anti-Semite. Voting for, well, at least an anti-Israel guy, Pat Buchanan. And some of them voted twice because it looked like one line was next to Gore and one was next to Lieberman and was his running mate.

Yeah. So my former boss, Erwin Chemerinsky, noted constitutional law scholar, went to the Florida courts and said, hey, we need a do-over in Palm Beach County. All these voters messed up. And they said, no, you can't do a do-over. Yeah. And so back to succession. This, by the way, is one of the biggest graphic design fuck-ups in history.

A graphic design. I mean, look, we have some, is one of the biggest graphic design fuck-ups in history. A graphic design, I mean, look, we have some wonderful graphic design, you know, the people I work with, but if they fuck up the typeface,

it doesn't ruin an election. That's right, yes. And that has improved too. There are people who've studied this stuff. Okay, good. So not everything has gotten worse since 2000.

I mean, there are a lot of lessons that were, bad lessons that were learned from 2000, like, oh, if I'm a partisan election official, I can change the rules to help my side win. You know, that's not a good lesson. You know, or litigation is the way to go. So, you know, we had a couple of dozen lawsuits in Florida. I've been studying the amount of litigation.

It's tripled in the period after 2000 compared to the period before. So people are assuming all the time. But there's only so much a court will do to remedy the situation. And in the succession scenario, it's not clear. And Wisconsin law is not clear. And federal law is not clear, what do you do when thousands of ballots have been destroyed in an election? There are only a handful of states that have rules in their election codes for how to deal with emergencies. So imagine earthquake the day of an election in California. Florida actually has some rules because they have hurricanes all the time, but there are lots of states that don't have it. And so getting back to the decentralization, it's one of the weaknesses. Because I've- Because we don't have uniform rules or even any rules in many places.

Yeah. I wrote in my book, Election Meltdown, which came out in 2020 on the day of the Iowa caucuses when they melted down. Remember, they used an app and the app didn't work. That elections are only as strong as their weakest link. Like 95% of people could be doing a fantastic job. But if it's a really close election, the attention turns to that 5%. And then, of course, people see something that's messed up and they think, oh, it's not incompetence. It was intentional because you don't trust anybody.

And there's so many, what you're making me realize is there's so many scenarios where we don't have any rules on the books, like a voting center burning down or like a butterfly ballot where what do you do when there's no rules on the books? You have to go to the courts. What happens when you go to the courts? You've got judges who are appointed by Republicans and Democrats or who have a leaning one way or the other because they're human beings on Earth. And then you've got lawyers making the cases to them and you've got other courts overturning them.

And you're now in the political process. Right. And there's no way to look at that process and say it's a myth that the courts are not political. Of course, they all are. And so there's there's no getting out of that situation in a way that feels unbiased to us because we haven't put together the rules of the road. This is fascinating. We have to take a really quick break. I have a really big picture question for you when we come back. We'll be right back with more Rick Hassan. OK, we're back with Rick Hassan. We're talking about the state of democracy in America and all of the power that local officials have to control elections, to restrict who votes. And it strikes me that there is sort of a fundamental problem here, because in my own political work, both in local politics here in Los Angeles and in the union politics I'm involved in, I've come to realize that if you're running for office, the most important thing is how many people you can get to show up to vote. Right. Like literally how many bodies are going to go to the school or, you know, the community center or how many people are going to go to the mailbox and actually put the thing in.

And so it really matters to you whether it's raining and how excited people are. I'll give you an example of this. A couple of years ago, the L.A. City Council decided they used to have their city council elections, you know, way off of the national calendar. It would be like an off year on a weird Wednesday in the middle of April or something. Right. And they decided turnout's too low. We're going to sync it up with like literally the election for president every four years. And so I knew a candidate who was running for city council and she was like, look, about 10 times as many people are going to vote in this election as voted last time. I have a chance to unseat the last the previous guy because nobody even knows his name because he was running at a very low turnout election. And so and it worked and she won because the the electorate was entirely different on this day. So I understand every politician must be attuned to the demographics

of the electorate and who's going to show up. That's going to control who wins. That gives them an incentive to try to control who shows up to the polls. So if you're Ron DeSantis and the voters pass this resolution saying this amendment amendment saying, guess what former felons get to vote? You're like, it just changed the entire electorate. And that was the electorate that voted me in. So I got to change it back. Seems like a really perverse incentive. What the fuck do we do about it? Is that a problem that's solvable? Well, a few things to say. First, it's not clear that these laws have as much of a partisan effect as people think. There's a new study. It was just written up in the New York

Times, a column by Tom Edsel. People want to look it up. This is a paper by a professor at Stanford named Justin Grimmer and a professor at Tufts named Eitan Hirsch. And they found that, you know, like let's say felons break down 60-40 Democratic. And let's say that if you re-enfranchise them, 10% of them are going to vote because turnout among poor people tends to be lower. Turnout among former felons are re-enfranchised. So 10%, but it's splitting 60-40. So like the partisan effects don't necessarily matter.

Democrats and Republicans both act as though the effects of these laws are massive. And in fact, they're not. Now, that's a double-edged sword. On the one hand, then why are we fighting over this? And I think the answer is because it's the dignity of each voter. If you're disenfranchising women or you're disenfranchising Native Americans, it doesn't matter if it affects the election outcome. Each of us is entitled to equal dignity. There's a deeper value that some folks, myself included, believe that every human who's in this

country deserves a say in it and is a valid person who deserves the rights that I do. And there's other people in this country who think, no, no, no, this is a valid person who deserves the rights that I do. And there's other people in this country who think, no, no, no, this is a country that's made just for a few folks. Folks like me, other people shouldn't have a say. And then maybe that's the deeper value than I want my party to win. The way I conceive of it is that I think there's a divide between liberals and conservatives as to what voting is for. So I think for liberals, for Democrats, but generally for those on the left, voting is about dividing power among political equals.

For those on the right, I'm thinking of a column that Jonah Goldberg, the National Review and LA Times columnist wrote. He said, voting should be harder for everybody. Like, let's not make it so easy. You should have to show that you're committed and you can do it. So voting is about choosing the best answer. And so if you're going to do that, it's like, well, well, so who's qualified to make the

best choice? Well, maybe we want people who own property or maybe we want people who can read English. You know, as recently as 1959, the United States Supreme Court said, literacy tests, they're constitutional. They don't violate the constitution. That ruling has never been overturned. Wow, really? The reason we don't have literacy tests is because it's in a federal statute, part of the Voting Rights Act. Wow, but it's constitutional still.

It's still, at least formally, it's constitutional. So if this part of the Voting Rights Act were overturned or challenged as unconstitutional or repealed, we could have a literacy test, right? So there's a long tradition in this country of the second tradition of voting being about choosing the best answer. Prove you're worth voting. Right. Prove that you're up to it. So that's not – to me, that's not quite as bad as we're putting this law in place because we want to win the election. because we're putting this law in place because we want to win the election.

We have an honest belief that only those people with enough of a stake or enough knowledge should be able to vote. You end up in the same place and these things kind of overlap with each other. I believe that can be an honest belief. I don't believe that everybody who acts that way has that honest belief. I think that sometimes it is about excluding others. But I agree with you that there's a real difference of values there, but please complete your point. Well, so if we could actually convince people that these laws don't have huge partisan effects, that might lower the temperature a little bit. And also maybe you won't have the Florida legislature seeking to disenfranchise these felons when they realize-

Well, except that it seems like there's a difference of opinion now that, you know, some of us believe that if, you know, whether or not you have been formerly incarcerated, you're still a full citizen who we is, has dignity and respect in our eyes. And other people in Florida do not believe that. I think we still might have a difference of opinion. Sure. But remember, think we still might have a difference of opinion on that. Sure. But remember, as you mentioned earlier, a majority of Republicans, a majority of independents,

a majority of Democrats had a 60% vote threshold voted for this amendment to re-enfranchise felons. And around the country, there are a number of Republican states where felons have

had their rights restored upon completing their, which is great. I mean, I think that that's a good thing. But, you know, so sure, there's a lot of disingenuous arguments, but I think there's also a philosophical debate. So when we're talking about that philosophical debate between folks who believe that, you know, the franchise should be extended to everyone as a matter of human dignity

and as a right, and people say, oh, only the really best voters should be allowed. The people we can trust to make a good decision. Do you think we can label one or other of those philosophies as more democratic than the other? Oh, yes. Okay. That is one of the arguments I make for why we need a constitutional amendment guaranteeing a right to vote.

Which is that if you look at the current stated ethos of this country, it is political equality. It's the idea that you don't get to tell me whether I get to vote. I don't get to tell you. We can each have our own opinions. We have a fair election, and the winner gets to have their representatives in office. You can look at the one person, one vote rules, which the U.S. Supreme Court came up with in the 1960s. You know, if we didn't have that, you know, in California, it used to be that rural counties with a few thousand people had as much representation in the state legislature as Los Angeles County.

You know, it was incredible. as Los Angeles County, you know, it was incredible. And the Constitution said nothing explicit about that until the court in this very small period when the court was liberal in the 1960s when Earl Warren, the former governor of California, was the United States president. You have to have one person, one vote. Equal voting power.

And this, I i think is an ethos again if you ask most people i think they would agree with that yeah um uh but but it seems that we have a persistent force in this country uh i don't know if it's a group of people or or a movement or or what that is anti-democratic, despite our stated values and the overwhelming majority of Americans who support those democratic values. It seems that there's always been a strain in American politics of people who say, we don't like democracy. We don't want it. We want less people to be able to vote. We want to be able to call the shots. And there've been so many times in American history where we've allowed them to run the show despite our values. What is that force and where does that come from

in this country? Yeah, so I look at the Trumpist forces today. You look at Trump himself looking at strong leaders like Putin or Kim Jong-un, dictators. I want more power. Oh, these guys are strong. Yeah, these are dictators. There's been this movement. The other day, there was a Trump supporter, I can't remember his name, but very popular

on social media, who was like, bring back Stalin. I mean, Stalin killed millions of people. It was a reign of terror. It was horrific. But there certainly is a renewed anti-small-D democratic strain in this country. And it's not just here. It's around the world. Part of it is that we're polarized. In the United States, government is somewhat paralyzed because of our polarization. You can't get that much done when you have divided government. In other countries, the governments fall because they don't have enough power to do what they want to do.

And we're trying to solve really big problems, right? Problems like climate change and immigration and issues with the economy. And people are dissatisfied. And when they're dissatisfied, they think our democracy is not working. So one answer to that is make our democracy better. More power to the people. Another answer is I need a strong man. I need someone who's going to give me the answers, going to impose power from above.

So it's not just a U.S. problem, but it's definitely a U.S. problem. That democracy, as I said when we first started, it's not been a linear progression. It goes ups and downs. And we're now facing a very dangerous moment in our democracy. It's sort of part of the paradox of democracy, right? Because people talked about when Trump was elected that, you know, some folks just like fascists, like, you know, millions of people are born every day. Some of those people who are born have the sort of personality trait or, you know, maybe

they were raised that way or whatever. By the time they're a voting age, they're just like, wow, I want like a big fucking asshole to tell me and everyone else what to do. Could we stop voting, please? I would like a big boss man in charge and let's all march with our flags and, you know, chant and stuff like that. Some people just that's what they get off on. That's what they enjoy. And when we live in a democratic society where everyone gets a vote, well, those anti-democratic people can win and impose it on the rest of us, right? So, and that's sort of the part of the problem of a democracy to a certain extent, isn't it?

And of course, it's exacerbated by the electoral college, which gives excessive power to smaller states and to swing states. And it's one of the two big institutions in this country that does not use equal voting power. The other one's the Senate. So Wyoming and Hawaii, relatively small populations, get the same representation as California and Texas, Florida, New York.

So it's not a pure democracy. But let me turn around and ask you, suppose that 2024 is Trump versus Biden, and let's say Trump hasn't been convicted of anything yet, and Trump wins. Do you think there's going to be rioting in the streets? And what people think is a fair election. Yeah. There's no proof of messing with the vote totals or any of that stuff. Do you think people are are riding in the streets?

I mean, I would expect, uh, I would expect some marching and I would expect those to be, you know, very, uh, vigorous. I can't say how far they would be between, uh, you know, the women's march and, uh, you know, the, the, the George Floyd demonstrations. Right. I would say somewhere on that continuum in terms of, terms of people expressing how they feel about that result. But I do think that people would accept the result as much as some people might be dismayed about it. Well, so this is the question, because if you look at surveys of, do you think the last election was fair? Best predictor of how people answer that

question? Did my guy win? Yeah. My guy won. It was fair. Yeah. So. And I remember, it's very funny that I remember when, like, I believe it was George Bush beating John Kerry. You had Democrats saying, oh, the voting machines, the voting machines. They were so mad about the voting machines.

And now those same people make fun of Republicans for going after Dominion. And who knows? I don't know how good the voting machines. And now those same people make fun of Republicans for going after Dominion. And who knows? I don't know how good the voting machines were that year, but you saw those same strains. It always happens when you're. Right. And because every election is seen as existential, and because the election system itself is so prone to people fighting about it, people are apt to believe that if their guy lost in a close election, somebody was doing something wrong. Which means we have to have a really well-run election. We have to have transparency. We need to have the rules established in advance. There are all kinds

of things we need to do, but it's hard to get everybody to do that when you have such a decentralized partisan system. And that's another way that America is less democratic than we say it is, because not only has the vote been taken away from so many people, so many people, but we have this very brittle system where we are prone to have an election where something goes wrong. People fight over the system and, you know, a court decides, or there's some technicality or there's the national electoral vote split and half the country is like, I don't consider this election valid. And, you know, I always think about if you're if you're the chancellor of Germany, as it's the chancellor there, right, if you're the if you're the head of Germany, you're a prime minister of some other

country in the world and you're looking at America, you're sort of like, man, that's a that's a fucked up democracy. Like, I don't know what's going to come out of there every four years. Like I could be sitting across the table from God knows who, because something like let's all cross our fingers that the system doesn't break this time. And that's, that doesn't really sound like a democracy. That sounds like, you know, something on the verge of collapse. Well, it could be both a democracy and on the verge of collapse.

Well, it could be both a democracy and on the verge of collapse. I spoke to a lot of nervous dignitaries before the 2020 election and then after the election before while it was being contested who were very nervous because the United States has an outsized role in the world in preserving the peace and preserving democracy. And if the United States is teetering, then the whole world's in danger. So the question is, how do you strengthen that? So that requires finding people of good faith across the political spectrum and finding people in different areas. This is not just a legal problem or a political problem or a media problem or a tech problem. It's all of that. So I actually started something at UCLA called the Safeguarding Democracy Project. And as we do, bring people together. We're going to issue a report in the fall on how do we hold a fairer and safer election in 2024. We did it after 2020, or as the 2020 election was coming, and some of our suggestions were taken up. Like, don't say Trump is in the lead

when there's millions of ballots that are already cast but haven't been counted yet. Say it's too early to call. It's like messaging matters. That was something that the media and social media people from our team were saying. So you've got to think about, because there's so many moving parts,

how do we have a fair and safe election in 2024? But the problem, though, if we, I'm sure you're doing great work, right, studying what the the most democratic way to do these things are. And I've encountered folks studying that before. Actually, when I was in college, one of my very good friends, her senior thesis was it was she was a mathematician and poli sci major. And she wrote a wonderful thesis that she told me about, about which voting system was the most democratic, you know, the way we do it. And what she found was that ranked choice voting was the most democratic, at least in 2004, when she was was working on this project.

And I was like, wow, cool. Good to know that ranked choice voting is so awesome. How the fuck do we put it in place? Like a mathematician can't just go before Congress and be like, I did the math and this is the most democratic thing, because as you point out, a lot of people don't actually want democracy. And there's a difference of philosophy about what democracy means. And when that's the case, like what does it even matter, the research that we do on what

the most effective means of voting are, if we don't even agree whether we want a democracy in this country sure two things one uh these are very practical things what can you do in the next two months like social media companies need to have this strategy like elevate the voices of those who are actually running elections give them verified status so we're looking for actionable things that can help in all these different areas. So not, you know, what should we do 20 years from now and have a national body that's running elections. Not talking about that. It's like, what can be done on the ground now? And we've got some practical suggestions.

The other thing is rank choice voting is a great example. 20 years ago, it was hardly used anywhere. Now they use it in a bunch of places, San Francisco, Oakland. Because we have such a decentralized system, you can have experimentation. So I wrote an article in 1996 saying we should have public financing of elections, but we should do it with vouchers, right? So rather than giving everyone who qualifies to be a candidate $20,000, give every voter $100 in vouchers and then they can give it to who they want. Seattle is doing that now.

They're considering it in other places. So because of local control, you can have some democratic experimentation. Now, I'm not saying ranked choice voting or vouchers are necessarily going to work. And there are people who are critics of these things. But at least it is one of the benefits of a decentralized system. There's a chance to try something else. Yeah. And there are states that are moving in a more democratic direction, like just again, talking about Los Angeles, L.A. County elections during the know, during the pandemic, the you know, the wide expansion of mail in voting, the new voting machines that they use that all that have a paper trail, but are also electronic are fantastic.

And as I was saying earlier, the fact that they synced up the calendar and made it so much more possible for people to vote in local elections, like there's been a huge flourishing of democracy, like right where I live. And it's very inspiring. I'm like, OK, hopefully that'll that'll trickle over to Florida one of these one of these days. But I guess it still feels like we need to answer this question of how democratic we want the country to be and what democracy even means. And it strikes me, actually, that the whole time we've been talking and I've been asking you which system is more

or less democratic. Is this undemocratic or that is undemocratic? Well, what do you feel as someone who researches this? We even mean when we say that, because if it's not in the Constitution, right, if according to our Constitution, we're not even that democratic. What is our benchmark for what democracy even means? Right. So first, I should say that some of the things you pointed to as victories are controversial.

Oh, okay. You move local elections to correspond with presidential elections. How do you get any oxygen? When everyone's paying attention to Biden versus Trump, how do you get someone to vote for the 14th congressional, for the 14th city council seat? Well, I'll say that. I'll say that my experience was that syncing up caused a huge number of more people to be involved in the local election because they were so worked up about the national election, which they felt they had no control over.

But they're like, oh God, I'm so worried about the election. You could say, well, guess what? There's a local candidate who you can go knock doors for, or you can raise money for. And they would say, oh my God, I can help. Okay, great. And it was sort of drafted off of the energy of the, now that was just one year. That was in 2020. It was a very strange year for many reasons, but I did have that experience of seeing the energy transfer. And the voting machines that they're called BMDs, ballot marking devices, ATM screen. Yeah. Ballot comes out, has a little QR code that gets read by the computer.

Yes. There's some computer scientists who think that this is a terrible system and that, and there's actually a lawsuit in Georgia where Georgia has these machines and they're fighting over whether or not these machines create problems in terms of potential hacking. So- Okay. Well, I like that it keeps a paper ballot. That's what I like. Yeah. Paper is absolutely essential. Yes. But the question is whether the, you know, if you're going to count not the votes that are written, printed on there, but the code, whether that creates a problem. On your broader question of democracy, I think the answer

is that this is for us to define ourselves, right? So we defined who was part of the democratic polity in a different way in the 1780s than we do today. I think today that conception of voting as distribution of power among political equals is the dominant one that should be adopted. And that we can have certain basic requirements, residency. So you shouldn't be able to vote for the North Carolina governor. And someone from Texas shouldn't be able to vote for our city council. So residency makes sense. Citizenship is, I think, a good dividing line, at least for national elections.

Adulthood, California know, California's talking about lowering the voting age to 16. Why? You get more Democrats that way. You know, so there are, you know, there are places that want to, there was somebody who wanted to raise the voting age to 25,

one of the presidential candidates. So- Yes, this looks like picking your voters to do that. Right, but I think it's picking your voters when you lower it to 16 as well as when you raise it to 25. There is no neutral. I remember being 17 and being like, this shit affects me.

Sure. Sure. But so my point is- And people also, by the way, who are immigrants also live in the country and the policies affect them as well. And so this is exactly my point, is that this is part of a democratic dialogue. That there is no single answer to who counts as this community. And a lot of it requires a political struggle, right? So in 1877, the courts didn't say women get the right to vote. It took that agitating for the next 50 years and a constitutional amendment. So if we have a

certain conception of democracy, we have to fight for it. Yeah. But do you feel that we are having that conversation? Do you feel that we're moving in the wrong direction? I don't think we're having this conversation enough. Yeah. And I think there's a lot more heat than light. So, you know, Georgia passed this voting law that Democrats said was going to be the end of the world. And it turned out to have relatively minor effects. There are parts of it that I think are quite bad. There are parts of it that are just fine. But you remember there was the Major League Baseball moved the All-Star game.

So now Republicans have gone, they just last week held a press conference in Georgia and said, we're going to try and do nationally what they did in Georgia. And so rather than think about how do we rationally design a system so that all eligible voters but only eligible voters can easily cast a vote that can be meaningfully and fairly counted? I can say in one sentence what we should have. It's these fights. And so elections have become the same kind of political issue as everything else. And it's become an issue where facts matter a lot less than you'd want. But is there a way in a world where the elections are controlled by politicians and politicians have an incentive to pick their voters and a justice system to benefit them?

Is there a way to come up with a system that everybody thinks is fair? I mean, I do think often about someone told me once the most effective way to cut up a cake is to let one person slice the cake and the other person choose which slice. Sure. Because if you're the person slicing, but not choosing, you're like, well, I got to make it fair. Otherwise, they're just going to pick the big one. That's easy for cake.

Is it? It seems like a lot harder for elections. It is. There are 24 states that have some version of direct democracy, like the felony enfranchisement in Florida that we talked about, like California adopting registering commissions, right? So there are things that can be done through the people to get around the self-interest of politicians. But I think it's going to take a political movement. You know, it might mean people out in the streets protesting for democracy. And that's how we got the Voting Rights Act. It wasn't as though politicians were sitting around one day

saying, you know what, it's really not fair what's going on in the South. Let's do something about it. It took popular pressure. Yeah. And what you have in some states, for instance, states that have ended gerrymandering, and some of them, that was the result of political movements coming together, lobbying, getting a proposal passed, a direct democracy amendment passed to end it. And then those organizations stick around to continue advocating and making sure that we don't backslide. And so that movement seems to be vitally important. Is there a way that people can join this movement, do you think? Sure.

So a good example is Michigan. Mm-hmm. This is what I was thinking of. Yeah, Michigan, you had this documentary called Slay the Dragon about the popular organization that formed to pass an amendment to the Michigan Constitution that took away the power of politicians to draw their own district. And this was called Voters Not Politicians was the organization, right? I remember them because I donated 50 bucks or whatever that year. Yeah. And since then, there have been more voter initiatives put on the ballot, And since then, there have been more voter initiatives put on the ballot, especially after what happened in 2020 with Trump trying to mess with the election rules.

So this can be replicated in lots of places. There are other states that are different strategies. So in some states, there's been litigation to go to the state Supreme Court. It's like, OK, the US Constitution doesn't control partisan gerrymandering. But what about the state constitution? Constitution doesn't control partisan gerrymandering, but what about the state constitution? And so there have been a number of states, North Carolina, New York, others that have said the state constitution contains an anti-gerrymandering prohibition. So there are lots of paths to try and do this.

But I think ultimately what we need is to impose a national floor. what we need is to impose a national floor. And the way to do that is by passing a constitutional amendment that says what I said before. If you're an adult resident citizen, non-felon, or someone who's completed their sentence, you should have the right to cast a ballot and have your ballot fairly counted. And then have a bunch of subsidiary rules to make sure that actually works. Because you can't let the courts mess it up. You can't let the states mess up. So even if we don't move to a national system, even if we stay decentralized, we need to impose a floor. It shouldn't be that we had before a recent election in North Dakota that

tribal officials had to work around the clock to print IDs with newly created residential addresses so that people wouldn't be disenfranchised. These laws are not preventing any appreciable amount of fraud. They're being put in place for bad reasons or at best for misguided reasons. And so we have to see the right, you know, you said the right to vote is fundamental. You said that, I agree with you. Where'd you get that? You didn't get it from our constitution. I got it in school.

You know, it was, it was how I was brought up was to believe that. And, and frankly, I got it from watching like the commercials during football games. It's just part of American culture, right? American culture, but not American law. And, but, but I think our hope is that this is, you know, what, what the, what the politicians will say in their most soaring speeches that, you know, when they say America's reality lives up to its ideals, that's what they're talking about. And you do seem like an optimistic guy. You seem to feel that if we actually have this conversation, put some of these rules in place, we can live up to those ideals. Well, I'm a little bit heartened by 2022

because 2020 was a very scary moment. And I think people woke up and they recognize that. And so we're fighting now against election subversion, which we haven't talked about, like trying to turn an election loser into an election winner. But I think that movement towards democracy is continuing to build. And I think young people don't want to put up with what their elders have given them to inherit. And so there's a lot of energy. I see it among my students. And I don't want to say I'm optimistic. What I would say is that I'm hopeful. And I think it's more of a call for activism than a call for resignation. I think at the end of the day, you can't fight the culture.

And when the culture of the people demands democracy, that is at the end of the day what we will be able to get because people can tell when it's being taken away and they call bullshit on it. But it's going to require a lot of work. Yeah. So there's no shortcut. Isn't that the phrase democracy requires constant vigilance. Is that the phrase?

Something like that? Could be. Could be. I don't know. Maybe I combine two phrases. Rick, thank you so much for being here. If people want to get a copy of your book,

you can do so at factuallypod.com slash books. Is there anywhere else that you would like to direct them? Where can they find you on your own social media? Sure. You can find me at the election law blog. That's real wonky stuff. That sounds like my kind of blog. Or you can go to safeguardingdemocracyproject.org

and see the work we're doing to try to assure we have free and fair elections in 2024. Rex, thank you so much for being here. It's been incredible. Great to talk to you. Well, thank you once again to Rick Hassan for coming on the show. If you want to pick up a copy of his book, head once again to fact to you. will read your name on this very podcast. Our most recent $15 a month subscribers are Kim Keplar, Trey Burt, Patrick Ryan, my own Avenger, and Matt Claussen. I thank all of you so much for helping keep this podcast free for everyone who wants to listen to it. I want to thank our producers,

Sam Rodman and Tony Wilson, our wonderful engineer, Rochelle, everyone here at HeadGum for helping make this show possible. If you want to see my tour dates, you can find them at adamconover.net. You can find me on social media at Adam Conover, wherever you get your social media. Thank you so much for listening, and we will see you next time on Factually. That was a HeadGum podcast.