Politico: ‘The Nightmare Scenario’: How Coronavirus Could Make the 2020 Vote a Disaster

April 29, 2020 Confluence

Reading Time: 10 minutes

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For a certain segment of the American electorate, the onset of the coronavirus pandemic birthed a 2020 nightmare scenario, with an embattled President Donald Trump delaying the November election.

But the prospect that terrifies election experts isn’t the idea that Trump moves the election (something he lacks the power to do); it’s something altogether more plausible: Despite an ongoing pandemic, the 2020 election takes place as planned, and America is totally unprepared.

The nightmare scenario goes something like this: Large numbers of voters become disenfranchised because they’re worried it’s not safe to vote and that participating makes it more likely they catch the coronavirus. Voter-registration efforts, almost always geared toward in-person sign-ups, bring in very few new voters. A surge of demand for absentee ballots overwhelms election administrators, who haven’t printed enough ballots. In some states, like Texas, where fear of coronavirus isn’t a valid reason to request an absentee ballot, turnout drops as Americans are forced to choose between voting in person (and risking contact with the coronavirus) or not voting at all.

At the same time, confidence in the cash-strapped U.S. Postal Service — whose coronavirus funding President Donald Trump has already threatened to block — teeters, and its involvement in handling so many absentee votes causes concern. Much as happened during the Wisconsin primary, a flood of mailed-in ballots makes it impossible to get full returns on election night, with heavily blue Democratic cities being, as usual, among the slowest to count. Trump declares victory based on those early returns, and again claims that the yet-to-be-counted absentees are tainted with fraud. Days later, with those votes counted, Joe Biden is declared the victor. Across the political spectrum, faith in the democratic process disintegrates as Americans question both the validity of the election and the ability of the government to respond to challenges it should have seen coming.

In surveying this scenario, what’s especially frightening is that it’s not far-fetched — at least according to University of California, Irvine professor Rick Hasen, one of the nation’s top experts in election law and the author of “Election Meltdown.” While much of the hand-wringing for the past month of more has been forward-looking — how coronavirus will change life at some point in the future — Hasen says the coronavirus is already changing American democracy, and that unless we adapt swiftly we’re headed for a world of pain in November.

Late last week, I interviewed Hasen and walked through what the coronavirus pandemic will actually mean for the 2020 election — not in terms of its impact on the Trump or Biden campaigns, but on American democracy itself. What follows is a transcript of that conversation, edited for length and readability.

Zack Stanton: More or less since the start of the stay-at-home orders in March, one of the things people have fretted about is whether Donald Trump can postpone the November election. And the answer is that he cannot, correct?

Rick Hasen: That’s right. The Constitution gives Congress the power to set the date for presidential elections. And Congress set it in a statute that dates back to, I believe, 1845. So it would take an act of Congress to change the date of the election. But that doesn’t mean that there aren’t things that Trump could do that could affect the outcome of the election. And there are two at the top of my list, which I can tell you about if you’re interested.

Stanton: Please do.

Hasen: Sure. So one is that the president tries to use some kind of emergency power or something to shut down cities on Election Day in the name of promoting health and preventing the spread of disease. And of course, if you stop people in Detroit and Philadelphia from voting, that would affect election outcomes. The other is that — and this really gets into the technical weeds, but it’s constitutionally possible — the Constitution gives each state legislature the power to set the rules for choosing that state’s presidential electors for the Electoral College. Every state has said, “Well, we’re going to let the voters choose.” But in the 2000 case of Bush v. Gore, the Supreme Court said that state legislatures can always take that power back to themselves.

So you can imagine a situation where Trump tries to get the [Republican-controlled] Wisconsin Legislature, for example, to choose the electors itself. Now, I think if that happened, there would be rioting in the streets. This would be a profoundly anti-democratic move, but I think under the Constitution, this would be permissible. The wrinkle there is whether the state legislature could do this without the approval of the governor — Wisconsin’s governor being a Democrat who would obviously block it if his approval was required. Same situation in North Carolina, same situation in Pennsylvania…

Stanton: And Michigan.

Hasen: … but not Florida.

Stanton: That’s interesting. So, the Constitution is vague on the question of whether or not a governor would be needed for that?

Hasen: The Constitution says that state legislatures set the rules for choosing electors. But there have been a number of cases where the court has tried to figure out whether “legislature,” in different contexts, means the legislative body that we call the legislature, or whether it means the legislative process, which would include, for example, the governor. There is some conflicting Supreme Court authority on this question, including a 5-4 case that depended on Justice Anthony Kennedy’s vote, and Kennedy is now gone. This is at least a theoretical possibility — and it worries me much more than postponing the election.

Stanton: What does precedent say?

Hasen: The weight of the authority is that ordinary legislation would be required — which would mean a governor would be involved. But it’s not clear that the current majority of the Supreme Court, which takes a more originalist view, would actually agree with that. Chief Justice John Roberts wrote a very strong dissent — one of the strongest he’s ever written — in the most recent case where the court considered an analogous question. This was in an Arizona redistricting case, where the question was whether the voters could take away the power of the state legislature to draw districts, and instead give it to [an independent] commission. And the majority, which was made up of the four liberals and Justice Kennedy, said that “legislature,” in this context, means the legislative process, which includes the initiative process in Arizona. Roberts read the word “legislature” much more narrowly: “No, ‘legislature’ has to have at least a role for the legislature.”

So, it would be a real constitutional mess if it came down to that issue. But it would be much more of a political earthquake. I mean, imagine the voters of a state being told, “You don’t get to vote for president; the legislature is going to do it.”

Stanton: In the scenario of the president declaring a state of emergency over coronavirus and depressing turnout, is that anything a governor has the ability to do on their own? Could, say, the Republican governor of Georgia do that to depress turnout in Atlanta?

Hasen: Sure! I mean, that would depend on what state law says the governor can do. Remember, the governor of Ohio got the health director to declare that polling places had to be closed for the primary, which led the secretary of state to reschedule the primary. That was a controversial move, and I was very troubled by it even though I thought it was right. Governor Tony Evers tried a similar move in Wisconsin. I think if something like that happened, you’d have people running to court claiming that this is a violation of people’s rights, especially if it happened just for Election Day. It would be, again, a kind of constitutionally questionable hardball move, and I think even the most self-interested of politicians is going to realize that the political backlash to something like that could be enormous.

Stanton: It seems like part of the complexity here is that though the actual date of a federal election is set at the national level — “the first Tuesday after the first Monday in November” — the actual administration of the elections themselves varies widely by state.

Hasen: That’s correct.

Stanton: So, we have a national pandemic, which states are responding to quite differently. And we have a federal election, which states will administer quite differently. And all of this is colliding. What is, in your mind, the nightmare scenario?

Hasen: I’m worried about large numbers of voters being disenfranchised, through no fault of their own, because it’s not safe to vote. That’s my No. 1 concern. And so I’ve been working with an ad hoc committee of leaders in law, tech, media and politics, we’ve come up with a set of recommendations for how to avoid an election meltdown. States have not done enough “plan B” emergency planning.

One of the answers has got to be that you have a variety of mechanisms for voting. So you have expanded vote-by-mail for people afraid to vote in public. But what if the mail system collapses? You know, the postal service not being funded, the pandemic spreading throughout the postal system, and mail becoming unreliable — there’s all kinds of things that could happen. So we need to have in-person voting, and that needs to be safe, or as safe as possible.

The other thing I’m worried about — and this is a very specific scenario — is that even before coronavirus, Michigan and Pennsylvania, two very key swing states, announced that they were moving to no-excuse absentee balloting — which, I think, is a great thing. People should be able to have their choice of how to vote so long as it can be done securely. And I was already worried that places like Detroit and Philadelphia are going to be overwhelmed with absentee ballots. Now, it’s going to be many times magnified, as we saw in Wisconsin.

It’s possible that there’ll be partial returns released on election night. You can imagine it’s the cities that are slowest in the count, as usual. Trump declares victory and says that voter fraud is endemic in absentee ballots — especially from cities like Philadelphia, which he’s claimed is full of voter fraud in the past. And then, five days later, Biden is declared the winner. And the election turns on this. You have two competing candidates claiming victory, potentially two competing slates of electors sent to the Electoral College, and just a huge mess. So that’s one of my nightmare scenarios. One of the ways we need to deal with that is that the media has a very important role in educating the public about election delays not meaning that something nefarious is going on, but [instead] that a count is being done carefully. Like a fine wine, good election results take time; you have to be patient. And the American people are not going to be patient about the results of November’s election.

Stanton: We’re less than 200 days out from the general election. In a normal cycle, what is going on at this point in terms of preparing for administering an election — and how is that different with coronavirus?

Hasen: Normally, polling places would be secured. Orders for printing ballots would be put in. Machines need to be procured; it’s a little too early to program them. It’s a little early to start hiring for poll workers. But all of the activity that takes place before the election would happen, except in those states that are still going to run primaries.

Preparations need to happen right now. If you’re expecting five times the number of absentee-ballot applications — like Wisconsin saw— you’re going to need to have a printer set up for that, and you’re gonna need to have a procedure set up to mail those ballots out. And if people have to apply for absentee ballots individually, those are all going to have to be processed. Lots needs to happen now that wouldn’t ordinarily have to happen quite so early.

All of our models about how many people will vote in person or vote by mail, we’ve got to throw out the window in the context of the pandemic. And I think the prudent thing to do now is to expect that there’s going to be a surge of vote-by-mail in every state, and to prepare for that.

Stanton: Are there any states that you see as a sort of model for how to hold an election during a pandemic?

Hasen: Ohio is an example where they seem to be proactively working to make sure voters have easy access to vote-by-mail if they want it. And although I didn’t like the way in which Ohio postponed its [primary] election, I thought it was the right thing. And that gave more time for people to be able to apply to vote by mail and to be able to register to vote.

The other thing we haven’t touched on, but which is so important right now, is that normally, as the general election period takes off, there would be heavy voter-registration efforts — a lot of it in-person, [where you] go to the park and get people to fill out registration forms. I think there are 10 states that don’t allow online voter registration, that require you to go somewhere in-person to register. And with government offices closed, I think there are going to be a lot of people who are not going to be able to vote in November because they’re not going to be registered in time.

One of the hottest issues now in litigation, which was not on the radar until about two months ago, is that in the one-third of states which require an excuse to be able to vote by mail, what counts as a valid excuse? Some states have said that if you’re worried about getting the coronavirus and you don’t want to be out in public, that’s a good enough excuse. Others, like Texas, are fighting that. Their attorney general is threatening criminal prosecution against people who would claim fear of the coronavirus as a reason to want to vote by mail. So that’s being litigated now. I actually think litigation is a good thing now, because it’s better to have clarity about what the rules are well in advance.

Stanton: Vote-by-mail is pretty familiar to most people, but also seems newly partisan in an odd way. But my understanding is that the origins of absentee voting, or at least where it became widespread, was with the Republican Party in California.

Hasen: I mean, absentee voting goes back to the Civil War as a way of giving soldiers a chance to be able to vote. But you’re right that California was one of the places that pioneered vote-by-mail, and California Republicans were much faster in advocating for it than Democrats. Now, putting [the] Wisconsin [primary] aside, which I think was an unusual race because of the pandemic and the Republican legislature’s response to it, there’s no good evidence that vote-by-mail favors Democrats over Republicans. It is true that Democrats have, in recent years, caught up with Republicans, but in many states, like Florida and California, Republicans have a long history of using vote-by-mail as a way of getting out the vote.

Stanton: But there are concerns about fraud and “ballot harvesting” with absentee votes. On what scale does that happen? How widespread is it?

Hasen: Election fraud in the United States in modern times is very rare. When it does happen, it tends to happen more with absentee ballots than with other forms of voting. There’s a very good database of all election prosecutions that researchers could track from 2000 to 2012. And 24 percent of the cases involved absentee-ballot fraud in one form or another — sometimes it had nothing to do with actual voting. But that 24 percent of cases made up only 491 prosecutions nationwide during a period when billions of ballots were cast; the rate of absentee-ballot crime appears quite low as an absolute matter. In fact, the five states that use mostly mail-in balloting for their elections have not seen significant cases of crime. Now, of course, the calculation is different [because of coronavirus]: The benefits of voting by mail are greatly increased because now it’s not just the convenience, it’s the safety that comes from not having to interact with as many people when you’re voting in person.

Stanton: President Trump recently attacked voting by mail, calling it “ripe for fraud.” The ability to believe in the sanctity of an election and the accuracy of its outcome is pretty central to a functioning democracy. Are you concerned at all that the cat is out of the bag a little bit — that distrust is sown about mail-in ballots, and there’s not necessarily an easy way to come back from that?

Hasen: I’ve always been concerned that [Trump] would claim that fraud was the reason he might lose an election. And I still think that might happen, should he lose — which brings up the Election Administrators’ Prayer: “Lord, let this not be close.” If you have a real blowout, it’s hard to claim that fraud is the result.

How do we ensure that elections are not only conducted fairly, but that people have confidence in them, when recent public opinion polling shows up to 40 percent of the public is not convinced that elections are conducted fairly? I think there’s a role to play for elected leaders, social media companies, traditional media companies, lawyers, members of Congress, state and local election officials — there are steps that all can take to try to minimize the chances of a meltdown. And that’s really where we have to focus our efforts, especially now in this Covid-19 era.

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