It’s been three months since Democrats took control of the House. What that’s meant for legislative priorities in Congress and the balance of power in Washington.
Since the 2000 election, the U.S has witnessed a partisan war over voting rules. Election lawsuits have more than doubled. Every day we hear about challenges to voter ID and early voting laws. Campaigns deploy “armies of lawyers” and social media provokes partisan dissent when elections are expected to be close. And that’s not to mention actual defects in the voting process. Even after major reforms over the past decade, our elections are still plagued with problems. Lists of eligible voters are inaccurate, procedures vary from county to county and election officials are often called partisan. Diane and author Richard Hasen discuss fixing the way we run our elections.
- Richard Hasen Chancellor's Professor of Law and Political Science, University of California, Irvine School of Law
Read An Excerpt
Excerpted from “The Voting Wars: From Florida 2000 to the Next Election Meltdown” by Richard Hasen. Copyright 2012 by Richard Hasen. Reprinted here by permission of Yale University Press. All rights reserved.
MS. DIANE REHMThanks for joining us. I'm Diane Rehm. Since the 2000 presidential election litigation over voting rules has skyrocketed and each election cycle brings out accusations of voter fraud and voter suppression. In a new book, one election law expert warns that unless we take steps now, the chances of another Florida are all too real.
MS. DIANE REHMThe book is titled "Voting Wars" and Richard Hasen joins me in the studio. Throughout the hour, I'll look forward to hearing from you. Call us on 800-433-8850. Send us your email to firstname.lastname@example.org. Join us on Facebook or Twitter. Good morning to you, sir.
PROFESSOR RICHARD HASENGood morning.
REHMYou tell a story at the beginning of the book about the 2011 race in Wisconsin and you say that that really provides a snapshot of what we could be facing. Talk about what happened there.
HASENYes, well, this was a contested race for the State Supreme Court in the State of Wisconsin. Wisconsin was already embroiled in partisan controversy because of Governor Walker's program for trying to crush the public sector unions. And everyone knew that the State Supreme Court was going to decide about the legality of that program to go after these public sector unions.
HASENThe Court was closely divided between Democrats and Republicans so this was the key race and it was a very close race. And throughout the night, as the election returns came in, they came in in dribs and drabs and the margin kept going back with the lead going between the Democrat and the Republican.
HASENIn the middle of the night, it looked like the Democrat was ahead by about 200 votes and you had many conservatives, such as John Fund, formerly of the Wall Street Journal claiming that there were bizarre anomalies in the vote counting and claiming that there was a potential for voter fraud in Madison, which is a Democratic area of the state and in Milwaukee with its unions and urban population.
HASENSo it looked like in the morning, the Democrat was ready to win, but then a little bit later in the day, you had a local election official named Kathy Nicholas of Waukasha County and she holds a press conference and she explains that she had kept all of the election returns from her county on her personal laptop and she simply forgot to include the entire city of Brookfield. About 15,000 votes, she forgot to count.
REHMHow could that have been?
HASENWell, this is part of the problem, is that not only are elections partisan, but they are run on a local level and there are varying degrees of competence and resources available. So she announces these votes with those totals. The Republican is ahead by 7,000 votes and Democrats now call for an investigation.
HASENThe election official Kathy Nicholas used to work for the Republicans in the State Legislature so Democrats are concerned that there's foul play yet she's vouched for by a woman named Ramona Kitzinger who is her Democratic counterpart and supposed to make sure she's doing a good job and she said everything looked fine.
HASENThe next day, through the Democratic Party, she issues a statement saying, I'm 80 years old. I don't know anything about computers. I think what she did was right, but I'm just not sure. I'm very, very confused.
HASENAnd so if the presidential election comes down to something like this, we'd be facing a situation at least as bad as what we faced in Florida in 2000 when the presidential election came down to the counting of those hanging chads and those other disputed ballots down there.
REHMAnd what you say in the book is that everybody's attitude began shifting after that 2000 election?
HASENI think what Florida taught people is that in a close election, the rules really matter and if you can manipulate the rules at the margins, whether it has to do with who registers to vote or how votes are counted or whether you require identification, that these could make a difference. And because we are such a partisan society now and because more elections are fought very closely and go into overtime, we have a greater potential for there to be shifting in vote outcomes because of the manipulation of these rules.
REHMYou talk about the actual defects in the voting process. Describe what you mean.
HASENWell, first, I should point out something that's better than in 2000. We've gotten rid of those hanging chads. We've gotten rid of the worst voting machines. So one thing Congress did was that it came up with a big pot of money to phase out voting machines. And then we had Florida being one of the first states to dump, unsurprisingly, dump their hanging chads.
HASENThey replaced them with electronic voting machines and as I describe in the book, there was a controversy over an electronic voting machine result race in a Congressional election in 2006 so they junked those machines. But we seem to be moving mostly towards using number two pencils, fill in the bubble, kind of like how you would take the SAT. That seems to be a pretty good technology so that is one piece of good news.
HASENBut in lots of other ways things have gotten worse. The amount of litigation, how many cases go to court, has more than doubled. We haven't moved away from partisan administration of elections. We haven't moved away from local administration of elections. This causes all kinds of controversies.
HASENWe have controversies now brewing in Florida, Ohio, Colorado, and Pennsylvania, many of the battleground states. There are fights over early voting, over voter registration, over absentee balloting, over provisional balloting and it's just a mess which has, I think, inflamed people's passions.
HASENAnd people are worried. One of the things that surveys show is that people's confidence in the process depends a lot on who wins the election. If my guy won, the election was fair and square. If the other guy won, there must have been fraud or voter suppression.
REHMAnd you actually expect another Florida soon?
HASENI hope not. If by another Florida you mean the election going into overtime, the chances of that happening are pretty small because it would have to be a very close election and it would have to be in a state whose, if we're talking about for the presidential election, whose electoral college votes matter to the outcome. So that's a pretty rare scenario.
REHMBut just go back to what you described in Wisconsin and this woman said she had 15,000 votes on her computer. Make sense of that for me, if you can.
HASENWell, you know, it's a myth that we have a single presidential election. We actually have 13,000 separate elections. We have elections done by county or at the local level and the rules for how the votes are counted, how they're tabulated, are different. And in this particular country, even though this election official was told by the state board that she shouldn't be keeping these returns on her laptop, she did so anyway.
HASENSo there are going to be problems in November, there's no question about it. But if the margin is large enough it's not going to affect the outcome. So if you look at what happened in Wisconsin, there was an investigation. And it turned out that there was no evidence of foul play, just incompetence.
HASENOne of the things I talk about in my book is something that Professor Heather Gerkin taught me, which is called Hanlon's Razor. It says, don't attribute to malice that which can be explained by incompetence and that much of what looks like it might be motivated by an attempt to give a partisan advantage is actually someone who doesn't know what they're doing.
HASENAnd I think that's what explains the Wisconsin situation more than a deliberate attempt to steal an election.
REHMWe're talking about a new book, it's titled "The Voting Wars: From Florida 2000 to the Next Election Meltdown." Richard Hasen is Chancellor's Professor of Law and Political Science at the University of California at Irvine. We do invite your calls 800-433-8850. Though you say that the hanging chads are gone, what about the technology itself? To what extent can we put our full trust in that technology?
HASENWell, the technology is part of the issue, but the other part is who is counting the votes and do they know how to use the technology? And so if you take electronic voting machines, one of the biggest problems we have with those is that poll workers don't necessarily know how to set up the voting machines.
REHMAnd are not being trained to do so properly?
HASENThat's right. The improper training or inadequate resources and machines get left unplugged. Things happen. This is why I'm a big believer in paper and pencil. It leaves you with a trail. You can check it out and see how someone voted.
HASENBut you know, even with those kinds of technologies, in a very close election, it creates problems so one of the stories I tell in the book is the Colman/Franken dispute. This was the contested Minnesota race and you had all kinds of votes where you had a board that had to determine whether a particular ballot, where someone, for example, bubbled in the name of Al Franken, but then wrote in the name Lizard People, whether that ballot should count for Franken or not.
HASENAnd Minnesota actually did a very good job in their recount and litigation. They had members from three different parties there in Minnesota. They agreed on almost all of the votes. It went to the State Supreme Court and they seemed to do a good job. One of my colleagues has called it the Lake Woebegone recount.
HASENIt was above average. It took nine months, kind of like a long episode...
HASEN…yes. And so if the presidency hung in the balance, we couldn't give the kind of process that Minnesota gave to the Franken/Coleman race.
REHMSo you've got all kinds of litigation involved. You've got people who are going to spend thousands of dollars not only on training people at the polls, but then in rooting out what could be fraud?
HASENYes, well, I would say the most important debate now in this area is the extent to which there is voter fraud and whether that voter fraud justifies the creation of all kinds of new voting rules, like voter ID and purging the voting rolls.
REHMAnd we'll talk more about voter fraud when we come back. Richard Hasen is the author of the new book titled "The Voting Wars."
REHMIf you've just joined us, my guest this hour is Richard Hasen. He's Chancellor's Professor of Law and Political Science at the University of California at Irvine. His brand new book is titled "The Voting Wars: From Florida 2000 to the Next Election Meltdown." Just before the break, we were talking about allegations made by a great many people of voter fraud. How much evidence is there that we have had people going to the polls who don't belong there?
HASENWell, I think we need to be very careful here and talk about the type of fraud that we're talking about.
HASENThere's different kind of fraud. There's fraud committed by election officials, and I'll give you a recent example of that. Out where I live in California a small city named Cudahy absentee ballots would come into the Cudahy City Council, or the city offices. They would steam them open, see if they were votes for incumbents. If they were votes for incumbents, they resealed them. If they were votes for challengers, they threw them away. Okay. So that happens. It doesn't happen a lot, but election officials are the ones who count the ballots. That's the easiest place to have election fraud.
REHMSo who's overseeing the voter officials?
HASENWell, there should be representatives from the parties there when those ballots are opened. And that -- there was -- that obviously was not being done. And this is a problem in smaller localities around the country where there are not people to look over someone's shoulders.
REHMAnd what was the outcome there?
HASENWell, those people are now in jail who did that, but there were some elections that the results could've changed.
HASENAll right. So there's that kind of fraud.
HASENThen there's a fair amount, I wouldn't say a lot, of absentee ballot fraud. The reason there's absentee ballot fraud is simply that if I want to steal an election, I want to be able to verify that the people I would pay to vote in a certain way actually did vote that way so I could collect those absentee ballots. And so we have -- I tell the story in the book of a race for a county commission in Dodge County, Ga. where the two candidates set up tables at opposite ends of the courthouse and actually bit on absentee ballots.
REHMWhat year would that have been?
HASENThat was in '96.
HASENSo we have situations of absentee ballot fraud basically involving the sale of absentee ballots. And then there are other allegations of felons voting, noncitizens voting. In many cases while those votes that are cast by felons or noncitizens are certainly illegal votes in many places, that doesn't necessarily count as voter fraud. Because in some circumstances, the state has asked those people to register to vote and they don't know that they are not allowed to vote.
HASENSo in the contested Rossi Gregoire gubernatorial race in Washington State, there were felons that voted. But the state sent them voter registration material so they thought -- they had completed their sentences. They didn't realize while they were still on probation that they couldn't vote and they voted.
HASENAll right. So now we get to the real controversy, which is...
REHMBut, wait a minute.
REHMBefore you get to that, go back in history to LBJ and whatever he did to win his election in Texas. Go back to JFK, what he did to win West Virginia. Does that count as voter fraud?
HASENWell, I think it would count as election fraud. Voter fraud is a new term. When it's the party officials or the election officials doing it I certainly think that counts. The scope of my book is to try and look how things are over the last generation. I don't think we have LBJ or the allegations of what happened in Chicago in 1960 with John Kennedy. I'm talking about what's happened recently.
HASENAnd so now we get to the question about impersonation voter fraud. So I go to the polls and I pretend I'm my neighbor and I cast a vote. How often does this happen? Well, this happens almost never. There was a comprehensive study of poll -- or a check of all 50 states by an organization called News 21. And they looked at all allegations, prosecutions of election-related crimes since 2000. And they had hundreds of cases of absentee fraud that were prosecuted. There were ten allegations of impersonation fraud.
HASENAnd I went and I looked for my book to find any election in the last generation where there was the potential for impersonation fraud to affect the outcome of the election and I couldn't find a single example. So I've been saying this -- on my election blog, I've been saying this for years, there's no examples. Hans von Spakovsky of the Heritage Foundation put out a report of the Heritage Foundation, said a grand jury report from New York shows that impersonation voter fraud is a serious problem. Look at this 1984 report.
HASENNow put aside the fact that 1984 is not that recent and the report covered 1968 to 1982. I wrote to von Spakovsky who had written to me before to put things on my blog, I'd like to see the report. Silence, didn't hear from him. Put it up on my blog, I'd like to see the report. Does anyone have the report? Silence. I wrote to the president of the Heritage Foundation and said I'd like to see the report. Silence. No one would give me the report. It's a principle of scholarship that you share your data so people can verify it.
HASENEventually, the UC Irvine Law librarians were able to track down someone at the district attorney's office in Brooklyn who found a copy of the report. I posted it on my blog. It's now available to the public. What did it show? No impersonation voter fraud, collusion by election officials. You had party officials in the -- hiding in the ceiling of the Brooklyn Board of Elections waiting for the lights to go out so they could go and change registration cards, but no impersonation voter fraud without the collusion of election officials.
HASENThis is not a problem yet all of the voter ID laws are premised on the idea that we have a rampant voter fraud problem. But the only kind of fraud that a voter ID law can prevent is impersonation fraud. It doesn't stop absentee ballot fraud. If people like von Spakovsky were serious about combating election fraud, the number one thing they should do is eliminate absentee ballots except for those people who really need it, like the people who are ill or in the military and out of town.
REHMAnd von Spakovsky has been a guest on this program in the past. If he chooses to call in this morning we'll be happy to entertain his comments. What do you think then has led the Supreme Court judge in Pennsylvania to rule that these voter ID laws are definitely legitimate?
HASENWell, what the trial court judge said was that for most people producing a photo ID is not a big burden and I think that's true. He also said that the U.S. Supreme Court had said in a 2008 case involving Indiana's voter ID that in order to sustain the constitutionality of one of these laws generally you don't have to prove that impersonation fraud's a real problem. It could be enough that you're trying to use sound election administration practices and bolster public confidence.
HASENNow let's put aside the fact that studies show there's no relationship between voter confidence and the presence or absence of an ID law. But the key thing that he said was that Pennsylvania was going to make serious efforts to get IDs into the hands of people who need them. And for those people who can't get them they should be able to bring their own lawsuits and get an exemption -- constitutionally required exemption as applied to them. I think that's a little bit of a pipe dream.
HASENThe people who lack ID and are going to have trouble getting them are going to be some of the least connected people in society. It's going to be hard even for the public interest lawyers to find them. It's going to be a very fact intensive kind of thing. So I think if this ruling is upheld, and it's going now on appeal to the State Supreme Court, what you're going to see is a massive mobilization effort to try and get IDs into the hands -- the state itself said there were 750,000 people or more who are eligible voters who lack the ID.
HASENNow some of those people are not going to want to vote. Some of those people will have an easy time getting an ID, but some of them won't and we're going to have to wait and see if the state can actually get its act together. I'm skeptical that the state's going to be able to do it. And the question's why. Why do we need this state law if its purpose is to prevent fraud?
HASENNow, Michael Turzai who's the speaker of the House of Representatives in Pennsylvania said that voter ID was going to help deliver the state from Mitt Romney. Now he's explained those comments as because we're eliminating voter fraud but Democrats heard this as because it's going to cause enough of a depression in Democratic turnout that it will skew the election results towards Republicans.
REHMIs there any way to know whether in the last election in Pennsylvania there was rampant voter ID fraud?
HASENWell, we don't -- there's no evidence of that. But further the state conceded in the case. They said, you know, we stipulate so we don't have to litigate about this, that there's no impersonation fraud. And we have no reason to believe that there will be impersonation fraud in our election. Now here's the ironic thing. There is a history in Pennsylvania of absentee ballot fraud. One of the things the judge said was, well absentee ballots are pretty freely available in Pennsylvania. I also don't think that's true but the more we shift people into absentee ballots, the more we increase the potential for election fraud.
REHMAnd why is that?
HASENBecause absentee ballots, as I mentioned earlier, can be bought and sold. You can verify how somebody voted. You can collect those ballots. You know, there are reports of people in nursing homes -- who work in nursing homes who collect all the absentee ballots from the residents and vote those votes. Absentee ballot fraud does happen. It's relatively rare but at least we have cases of it.
REHMAnd what about early voting?
HASENIn terms of early in-person voting and fraud? Well, when early voting takes place at the polling place, it should be just as secure as early voting that takes place on election day. I don't think anyone has claimed that early voting per say creates an avenue for additional fraud. The big fight now, and it's a huge fight in Ohio, is over how accommodating the election officials should be for efforts to expand early voting.
HASENIn Ohio, you had -- you have two Democrats and two Republicans who sit on each county election board. And in the big Democratic counties, they deadlocked over whether or not to have extended early voting hours. And under the state's law the secretary of state who right now is a Republican gets to break the tie. And he voted against extending early voting hours in these large Democratic counties. This caused a big ruckus. The New York Times had a big editorial about it.
HASENHe eventually changed his mind and said we're going to have uniform hours throughout the whole state, but no weekend voting. And now Democrats are upset about that because they say for working people, weekend voting is more convenient. And the response from Republicans is that the state, for the first time, is making absentee ballots available to all voters who want them in Ohio. If it's inconvenient for you to vote on a weekday, you can send in your absentee ballot.
REHMRichard Hasen. His new book is titled "The Voting Wars: From Florida 2000 to the Next Election Meltdown." And you're listening to "The Diane Rehm Show." We've got lots of callers. We're going to open the phones now. First to Jacksonville, Fla. and to Ricky. Good morning to you, sir. You're on the air.
RICKYGood morning. How you doing today?
REHMFine, thank you. Go right ahead.
RICKYYou know, it's just amazing -- I mean, your guest covered almost everything I wanted to say, but it's amazing that I guess you could call it the main media or whatever. I'm here in Florida and I heard more today on your show about this voting fraud than I have heard, you know, this year on my local radio -- TV station. I'm wondering...
REHMMaybe you're listening in the wrong places.
RICKYWell, I mean, we have three local news stations and they don't really talk about it. I'm just wanting to know -- wondering why is there after all that people went through to get us the right to vote and even in countries other than the United States, you know, they're fighting for their right to vote. Why do they want us to press the right to vote even though we know everything the guy said about us. There's nobody really breaking any laws and doing any kind of shady stuff.
REHMIt's really interesting, isn't it?
HASENI do think that the -- there are some people, and I think many people within the Republican Party now believe that voter fraud is a rampant problem, when in fact it is not. I also think that Democrats will tend to exaggerate the extent to which voter suppression is a problem. So for example, I have heard -- or I have read many people say that millions of voters will be disenfranchised come November. I think -- I don't think that's true.
HASENThis is not a game about millions of people losing the vote. It's about playing the margins. And if it's a 1 percent decline in turnout that can be enough in a close election. But Democrats have been using claims of voter suppression to get turnout up. And it actually works because people feel like I don't want to be disenfranchised, I'll show them. In the same way that Republicans are using claims of voter fraud to get the vote up by saying, come out and vote and don't let those acorn tainted votes dilute your vote.
HASENAnd so it becomes part of the parson rhetoric and our election system is a political football between the parties. What we really need is to have neutral election administrators running the election whose allegiance is not to the parties but to the people.
REHMBut some people may hear what you're saying, read your book and feel as though you're being more critical of Republicans than you are of Democrats.
HASENYes, I address that in the book. And what I say is that I didn't want to write this book with a false even handedness. It's clear to me that Republicans are more to blame than Democrats for what's happened in the last decade in this voter fraud voter suppression issue. But Democrats share some of the blame and so I'll give you an example now of what's going on in Florida and Colorado about noncitizen voting.
HASENWe know that noncitizen voting happens. Again, it's rare, but it does happen much more than impersonation fraud. The Department of Homeland Security has a list of citizens that's not quite an accurate list,, but Florida and Colorado and other states, now Ohio, all Republican election administrators want to use these lists to cross reference their voter list to try and eliminate noncitizen from the roles.
HASENThe position of Democrats is you shouldn't do this. It's going to disenfranchise legitimate voters because there are errors. And this turns out to be true and I actually think it's a problem to try and remove people from the roles just before the election because there are going to be errors made and people are going to be disenfranchised. And it looks like many more citizens then noncitizens are being removed from the roles. But Democrats should also come out and say when the election's over we do need to find a way to remove noncitizens from the roles. It is a problem.
HASENAnd I think part of what Democrats are concerned about is not just disenfranchisement, but also that if you make it harder for the casual voter to be able to cast a vote that Democratic turnout is going to be lower. Some Democratic voters are less attached to the voting process and so putting up any kind of barrier, a longer registration period, a voter ID law, shortened voting hours, this is going to depress Democratic turnout.
REHMWhat do you think happened in the years before 2000?
HASENIn Florida? Is this the question, who really won Florida? The first chapter of my book tries to tell the story of Florida and I think the answer is that a margin of error greatly exceeded the margin of victory. I think more people wanted to vote for Al Gore than George Bush, but under the rules as they existed there's no way to know who really won Florida.
REHMRichard Hasen. His new book is titled "The Voting Wars."
REHMAnd welcome back. I'm going to go right back to the phones, 800-433-8850, to Danville, Pa. Good morning, Kat. You're on the air.
KATGood morning. Thank you for taking my call.
KATI was wondering if your guest could answer a question for me. I've heard that during the National Governors Convention the Republican governors decided to suppress voter turnout by 10 percent and that that was their goal. But I'm not exactly sure where I heard that. And I was wondering if he could tell me if that was true or not.
MR. RICHARD HASENWell, this is news to me. I've not heard that. Certainly both parties are looking for ways to increase turnout among their side. And what's more controversial is about trying to depress the turnout on the other side. That's just a tactic that people are using. And some have claimed that the negativity of the Obama campaign now is aimed at trying to depress the white male turnout, which would most help Mitt Romney.
MR. RICHARD HASENSo this is, I think, a different question than one about voter fraud. Using negative campaign tactics to try and get people to be unmotivated to vote is a time-honored political tactic.
REHMAll right. To Dallas, Texas. Good morning, Gary.
GARYGood morning. I have one comment and one thing to add to what Richard was saying about Ohio. Not only was it a fact that there was a tie-breaker by the Republican, but also originally it all started when there was a decision to break the vote of extending the hours. And the Democrats said to the Republicans in the Republican counties there's no problem. Let's just make it easy for everybody to vote and let's extend the hours. And everything was agreed upon. But when they went to the Democratic counties all the Republicans, without exception, decided no, we're not gonna accept.
GARYAnd that's why the tie-breaker had to go to the Republican. That's one thing. And the other thing that I really called about was how really depressing it is to listen to this, when you said earlier there's basically an election of 13,000 counties. The more I hear about it -- and this is a -- you're talking to a Canadian who moved to Dallas almost 30 years ago. Very, very proud to be living in the States certainly then, less so now. And very, very frustrated and basically ashamed and disgusted about what goes on in this country.
GARYWe are looked at as the laughing stock around the world. Not just with people that I know in Canada, but people I talk to in other parts of the world. They look at us and they say this is the biggest joke going. And I don't think the Americans, when they travel, who they have the stigma attached to them about well, we don't care about the rest of the world. We'll speak English wherever we travel. We don't care because we're bringing our money. That type of attitude is prevalent. And the rest of the world looks at it and says you exacerbate the problem by showing how ludicrous you look in your situations, whether it's the vote right now or the corporations adding as much money as they want to the election with this corporations are people.
REHMAll right. Rick?
HASENA couple of points. First the fight over early voting in Ohio and in Florida is not over. Just this week the head of the Republican party in Franklin County, Ohio, who also is one of the members of the election board -- which should already give you pause that we have partisans on our election board -- said that he would not, quote, contort the vote to help the urban -- read Africa-American -- turnout machine get the vote out. And so now there are questions about whether there's going to be suits under the Voting Rights Act against the decisions regarding early voting.
HASENAnd in Florida, five of whose counties are covered by the Voting Rights Act, a district court this week issued an order requiring additional early voting to be added in those counties. And now there's a question whether they're going to be different early voting hours in one part of Florida, rather than the rest of Florida. And if that creates a constitutional problem, ironically under the Supreme Court's Bush vs. Gore (word?) because people in parts of Florida will have a longer opportunity to vote than in the rest of the state.
HASENOn the other point about how other countries do it, I gave a presentation of this book in the House of Lords to a group of election reformers. And I sure made them feel good about their election system. Our election system does not look good by comparison. Most mature democracies use national elections with non-partisan election administrators. Near the end of my book that's what I call for, but I have no illusions that we're anywhere close to putting that on the table.
REHMWell, until we get there where are the Jimmy Carter observation teams?
HASENWell, it's funny because during the 2004 election outside observers wanted to come to observe into Ohio and observe. And Ken Blackwell, who was a controversial Secretary of State in Ohio wouldn't allow the observers to come in. There are many places in the U.S. that would not allow observers to come in. I don't know if you'd call it xenophobia or an attitude of we're the best and why even bother. We don't have to prove anything to anyone. But I think we need to do more things to increase people's confidence in the fairness of the process. And one of the things to do is to make the process fairer.
REHMHere's an email from Michael who says, "Why, if we have had ATM machines delivering cash with nearly 99.9 percent success rate, can we not have voting ATM-like machines enabled at banks across the country for elections?"
HASENWell, I do address this a little bit in my book. First of all, it turns out the amount of bank fraud is very high, in the billions of dollars. And banks try to keep that quiet as a cost of doing business. So the banking model's not a great one. But if we were going to have people vote at banks through ATMs that means we'd be using the internet for voting. And I start one of the chapters of my book with the University of Michigan fight song playing through the computers at the Washington D.C. Board Of Elections.
HASENWashington, D.C. Board Of Elections was doing an experiment on internet voting for military and overseas voters. And they said try and hack our system. Well, some enterprising hackers at the University of Michigan's Computer Science Department led by Professor Alex Halderman got in. For four days they went in there, changed all of everyone else's votes, added new votes. They saw people from China and Iran were trying to get into the machines. And nobody at the Board Of Elections even noticed it 'til they caused this music to come out of the machines.
HASENInternet voting is not ready for prime time. We can't use ATM machines. We can't do anything close to that. We're much better off, especially in these times, with a low-tech solution.
REHMAnd here is an email from Nicole who says, "Why would voting authorities want ballots marked in pencil? Here in Dallas County, we use optical scan ballots, but we don’t mark them with pencils. We use Sharpies to blacken our bubbles, which would also prevent anyone from erasing and changing anything."
HASENYeah, well, that's a double-edge sword because sometimes people make a mistake. Right? I thought I was filling in the bubble for one candidate or I changed my mind. I wanna vote for someone else. You have to make a choice about that. There's no perfect system. There's no fail-safe system. And in a very close election there's going to be likely the call for a recount. Candidates go to recounts more now than they did before.
REHMAll right. To Little Rock, Ark. Good morning, Robert.
ROBERTGood morning, Diane. Thank you for the continuing education. I think you're great.
ROBERTI have to take some umbrance with what I just heard. First of all, I'm confused as why we continue tenaciously to hang onto this antiquated system. I understand it was developed to prevent disenfranchisement. And that's all well and good, but a person who can go in and put a dot on a piece of paper can also put their finger in a circle on a screen. I can go halfway across the world, put my ATM in a machine and take out cash within 30 seconds. I can file my taxes online and no one goes in there and confuses me with someone else. And these are all very fail-safe systems. Why can't we go to a simpler, so to speak, cyber system to where everyone has one vote and one say and it's protected? And I'll take the answers off the air. Thanks for the time.
HASENI do think that, especially now, at this time when our fights over election system are so partisan, that the idea that there would be some computer program that's counting the votes that couldn't be verified, that there's nothing physical to look at, is just a non-starter. People don't have confidence. It's why Florida got rid of its -- not internet machines, but its electronic voting machines and has moved back to paper and pen.
REHMBut no hanging chads.
HASENRight. Well, that is the one good thing. I have a Florida 2000 voting machine in my office that my wife got for me on eBay as an anniversary present. And I would carry it to class and for years chads would fall out. And now it's chadless.
REHMLet's go to Greenville, N.C. Good morning, Patrick.
PATRICKGood morning, Diane. I serve on our local county election board here in Pitt County, have for 17 years now. We've had early voting since the year 2000. Prior to that the county election board always got along well. In North Carolina each county has a three-member board comprised of two Democrats and one Republican. And the reason for that margin is the governor. Whoever the governor is in North Carolina has the majority in all county boards. Now I am the lone Republican on our county board. And I have been for the duration of my 17 years because we've always had a Democratic governor, at least in the years I've been on the board.
PATRICKWe never have any problems until it comes time to put together the early voting one-stop plan, locations and times. Now, I will tell you this, it is the Democratic party that causes the ruckus. They want the early voting to be extended. Now, the state law requires a two-week period and certain hours. And each county has some leeway to extend that, which I have always supported. But this year, as we enacted the one-stop voting, we had representatives from our local Democratic party and also from the Organizing For American, which is the Obama campaign, come to our meeting and basically demand that we enact one-stop plans to their liking. And this is public knowledge.
PATRICKWe had the campaign saying this is what we want. And of course, if the local board members, the two Democrats on the local board, do not acquiesce they will probably be kicked off the board. This happened in our county back in 2006. We had two very dedicated Democratic board members who were kicked off the board because they would not acquiesce to the extent that their local Democratic party felt they should. This year in Pitt County we had representatives from the Obama campaign and from the Pitt County Democratic party coming and telling their representatives how many one-stop sites to have, where they should be, the hours.
PATRICKI mean I know I don't have time to give you example after example, but that is exactly what's taking place in North Carolina.
HASENWell, this is a real problem. I mean think about this. It's not just in Ohio where it's two to two on the election boards. We're hearing an example in North Carolina where it's two to one for one party. Why do we have party people running the elections? This is what we need. We need someone who's legitimacy and integrity is based upon the fairness of the election process and not pleasing a political party.
REHMBut how do you find someone with no political connections?
HASENI don't think you want someone with no political connections. What you want is someone who has a reputation for being even-handed. I'd put Doug Chapin or Ned Foley, who are very well respected election administrators, in charge of our elections. And the mechanism that I propose is that if we do it on the national scale the president, if we do it on the state scale the governor would nominate an election czar or an election board. And that board or person would be subject to a 75 percent confirmation of the state legislature. And anyone who could get though that gauntlet would be someone who would have to be above politics. And this is a way to move towards nonpartisanship.
REHMAnd you're listening to "The Diane Rehm Show." Here's an email from Debra in Oklahoma City. Is there any way of checking on the actual polling place concerns that seem to be designed to limit voting in low income or minority areas?
HASENWell, certainly you have -- we just heard from the last caller -- the Democratic party and the Republican party are both on the ground. They're both looking at what the rules are going to be. They're both advocating in front of election boards. There's now a lawsuit in Ohio. Another one we didn't talk about. Ohio eliminated the last three days of early voting, just before the election when many African-American churches would organize souls to the polls and send people to vote. But military voters, in-person military voters are going to be able to vote on those three days. And so the Obama administration has sued and said you already have the polls open, you should have it open for everyone.
HASENIn response the state says, we're giving other people ample opportunities and the election officials need time to be able to prepare for the actual day of voting.
REHMSo how do you interpret that?
HASENWell, it looks like the reason that the law came out this way was that it was a legislative error, that they meant to eliminate early voting for everyone, but they didn't repeal all of the laws. At this point I think the judge is going to be likely to allow just the military voters to vote, in part because the state is making absentee ballots available to everyone else. And I expect we're gonna see absentee ballot parties going on in Ohio as another way to try and get out the vote. And again, moving to absentee ballots is not something I'm terribly comfortable with.
REHMRick, at this late date is there anything we can do to insure that process is fair and accurate?
HASENWell, let's start with what the goals should be. The goals should be that all eligible voters, but only eligible voters should be able to cast a vote that's gonna be accurately counted. There's not much we can do to replace the partisan officials we have now. There's not much we can do with the lack of resources. The most important thing is to be vigilant, for everyone to be watching what's going on. And when something looks unfair to bring attention to it. Such as the attention that came to those Ohio early voting counties where Republican counties were giving extra time and Democratic counties were not. So the short term is to be vigilant.
HASENI had an op-ed in the New York Times a couple of weeks ago, calling for a detente in the voting wars, saying we shouldn't be trying to make last-minute changes, implementing new rules, purging voters, but I have no doubt that the voter purges, at least in Florida and Colorado, are going to go forward and are gonna be subject to additional lawsuits. So we're gonna be litigating up to and hopefully not after election day over the rule for elections.
REHMHow many legitimate voters do you think are going to be purged from the rolls?
HASENWell, it's very hard to say. And part of the problem in this is there's so much local control. So the State of Florida produces this purge list. And then election officials in each county decide what to do with it. And so it was an interesting study of the -- in 2000, the Florida felon purge list, which is a very flawed list, but Republicans were very happy to use it. Democratic election officials didn't use it all. So they administer their elections very differently.
REHMRichard Hasen. His new book is titled, "The Voting Wars: From Florida 200 to the Next Election Meltdown." Let's hope it's not 2012. Thank you.
HASENThank you. It's been a pleasure.
REHMThanks for listening all. I'm Diane Rehm.
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