Richard Hasen, a professor of law and political science at the University of California, Irvine School of Law, is one of the country’s leading experts on election law. His latest book, “Cheap Speech,” explores the rampant disinformation he says is poisoning American politics.
Fredreka reached out to Rick for his views on what ails democracy and how we can fix it.
Here are the results of the exchange, lightly edited for length and clarity:
Q: For years now, you have spoken about threats to American democracy — whether it’s the corrosive impact of unlimited outside money in elections or the potential for election subversion.
What keeps you up at night when you think about the state of our country and its elections?
The threats to American democracy have changed over time, becoming more serious. Whereas in the past the issues were about whether we had a system of fair representation — things like partisan gerrymandering, spending by ultra-wealthy donors on political campaigns, and concerns about efforts to suppress votes — today’s concerns are more existential. It is not an exaggeration to say that the United States came much closer to losing our democracy in the events following the 2020 election than most people realize. Had the January 6 insurrectionists managed to capture or kill members of the congressional leadership before Congress declared Joe Biden the winner of the presidential contest, we could have seen the imposition of martial law and no peaceful transition of power. I worry about what will happen in 2024 and beyond, particularly given the fact that millions of people now believe the false claim that the 2020 election was stolen, and some people embracing this false claim will be the ones running elections in 2024.
Q: You talk about democracy relying on the loser’s consent. What do you mean by that?
A democracy depends upon the losers of the election being willing to accept the election results as legitimate. Of course, election losers are disappointed whenever they lose, but most people grumble and move on, recognizing being on the short end of a fair vote count. If, in contrast, you believe an election has been stolen from you, you won’t accept the winner as rightfully in power, and you might take steps to try to “steal back” the elections the next time. It creates a volatile situation when the 2024 elections roll around, particularly if Donald Trump is again a candidate and makes the false claims of election stealing a centerpiece of his campaign. There’s every reason to believe he would do so, given his recent public pronouncements.
Q: Earlier this year, a Democratic-led effort to overhaul election laws crashed and burned in the US Senate. Now, some lawmakers on Capitol Hill are working on revising the Electoral Count Act — an obscure and confusing 19th century law that sets out procedures for counting electoral votes following a presidential election.
What do lawmakers need to get right in any rewrite?
There are a number of things that Congress needs to do to minimize the risk of election subversion next time and fixing the Electoral Count Act is one key part. The law should be rewritten so that no one can claim that the vice president, who presides over the ceremonial counting of state electoral college votes, can unilaterally decide to accept or reject state submissions. The law should be explicit that state legislatures cannot simply submit alternative slates of electors once people have been able to vote in the election if they don’t like the result, pointing to unproven irregularities or fraud. It also should raise the threshold for members of Congress to object to electoral college results.
Beyond ECA reform, we should require that everyone vote on voting machines that produce a paper ballot that can be recounted in a close contest. That is better than wholly electronic machines that someone can claim were hacked and without any physical evidence to verify the vote. We should require states to do post-election audits to assure their results are accurate. We need greater protection for election officials and poll workers and voters from intimidation, and stricter penalties for those who would try to manipulate election results.
Q: In your latest book, you argue that “cheap speech” — the spread of information via social media platforms — is eroding democracy by exposing voters to massive amounts of misinformation and disinformation. What are the top remedies to this problem?
I mean the term “cheap speech” in two ways. First, it is about how much easier it is to spread information (and disinformation) not only on social platforms but through podcasts, cable TV and lots of other ways. Second, it is about how our information system makes it easier to spread lower valued speech like false information over quality investigative journalism. The latter is more expensive to produce, but the economic model for producing it on the local level has collapsed as advertising has moved from newspapers to online. Journalists have lost jobs faster than coal miners.
As I argue in my book, we need both legal changes and political changes to deal with the rise of cheap speech to give voters tools to make good choices on how to vote consistent with their interests and values. For example, we should have better disclosure laws, so voters know whether someone on social media who is trying to influence their votes is actually who they say they are. In 2017, some Democrats in Alabama posed as Baptist teetotalers calling for an end to alcohol sales in the state of Alabama in an effort to convince moderate Republicans not to vote for Roy Moore, the GOP nominee for the US Senate. And in 2016, Russian government operatives posed as African-American voters attempting to convince other African Americans not to vote for Hillary Clinton.
In addition to things like improved disclosure laws, we should make it a crime to lie about when where and how people vote, like directing messages lying to voters and telling them they may vote by text message (they can’t).
In addition to legal change, we need political changes, like the public pressuring the platforms to keep off speech and individuals who lie about stolen and rigged elections in an effort to decrease confidence in our democratic system.
Q: We need to give people some hope here before we close. What can individual Americans do to help save our democracy?
Now is not the time to be complacent. Because US election administration is so decentralized, one can be involved in the running of elections on the local level, whether that is acting as a poll worker or an observer, or just assuring that those in charge of elections act with transparency and fairness. People should also be prepared to organize in the event there are political efforts to deprive people of the right to vote or a fair vote count.
Now is the time for individuals to band together from the left, right and center, to ensure that we continue to have fair elections and elections that people can believe are fair. There’s much work to do, and no time to lose.