What if a blackout were to happen in a major city in one of America's swing states on Election Day 2020? Or if an error occurred while tabulating electronic ballots? How would the electorate respond if one of the candidates refused to concede the election?
These are all scenarios that law professor and Election Law Blog founder Richard Hasen considered while writing his new book, Election Meltdown: Dirty Tricks, Distrust and the Threat to American Democracy.
"One reaction to calling the book Election Meltdown is that it's a little alarmist, but I'm going to own that and say, yes, I'm sounding the alarm — even if there's a small risk of this happening," Hasen says.
Hasen adds that tight races are at most risk of interference: "There's something called the election administrator's prayer: 'Lord, let this election not be close,' because when it gets close, you start looking at all of the problems that can occur," he says.
But 2020 may be shaping up to be a close election, and Hasen warns: "It's now 20 years after Bush v. Gore, and we haven't learned our lesson. An election meltdown is a real possibility — even if it's a small one."
Interview highlights
On possible scenarios where one side won't concede after the results in November
Lots of people think about the idea of Donald Trump not leaving office and having to be pulled out by the military. I think that that's just one of a number of ways in which we could have a problem. You can imagine another scenario in which Trump narrowly wins in a state like Florida, but there's a widespread belief among Democrats that he wins our election because the Florida legislature blocked implementation of a law that was passed by voters a few years ago that was meant to reenfranchise felons. So you can imagine the losers on the Democratic side being the ones who are not willing to give in.
Or another scenario, as you can imagine, that there's some kind of external shock to our system: It could be some kind of terrorist attack or some kind of cyberattack that disrupts voting, and it could affect the outcome of an election, a state. We don't have good procedures for figuring out what to do when that happens and that could lead to one or the other side feeling that the election was not conducted fairly. There's lots of ways that things could go south.
On external and internal threats to our election
There's the issue of perception and the issue of reality. There are certain kinds of external things that could be done to try to manipulate public opinion, as we saw the Russians do in the 2016 election when it came to social media as well as the leaking of materials. What's going to happen if Joe Biden is the nominee and all of a sudden Burisma documents start appearing? Some of those documents, as we know from a recent French election, that might be leaked could include false documents. So these are the kind of external threats that could cause people to believe that the election was not conducted fairly.
There could be machine breakdowns. There's the transition to new voting rules and new voting machines that could cause some problems at the polling places, that could cause some disputes about how to deal with a recount. And then there's all of this talk about voter fraud and voter suppression there. This is going to be the first election since the 1980s where the Republican National Committee is not going to be subject to a court order, a consent decree which barred the party from engaging in certain so-called ballot security measures at polling places. This means that in this election, President Trump, as he tried to do in the 2016 election, could organize people to engage in so-called poll-watching activities in Democratic and minority areas. What we saw in the 1980s before the consent decree were off-duty police officers in uniform patrolling polling places.
On President Trump standing in the way of preventing election interference
A nightmare scenario involves a hack by the Russians of the power grid in a Democratic city, like Detroit or Milwaukee, in a swing state, which could happen on Election Day and could affect the vote in that state, which could affect the national vote totals. This should be considered an act of war, and we would want a president out there who is actively warning the Russians and others — the Iranians and anyone else that might try to interfere in our elections — that it is completely unacceptable and that American elections are for Americans to decide. Not only do we not have that leadership from the president, we have the president actively undermining that message. And so while I think there are many good people in the federal government who are working on issues of election cybersecurity and working on other issues, the leadership from the top is really problematic.
On what the contingency plan is if there's a cyberattack or a terrorist attack on Election Day
I asked the Secretary of State of Michigan Jocelyn Benson about this, this nightmare scenario. And, she said, polling places have paper ballots, provisional ballots that could be used in the event of an emergency. If there's a citywide blackout, that means that lots of people are not getting to the polling place. So even if everyone who got to the polling place got a provisional ballot, how many people, if the buses and trains are not running and the lights are out, how many people are not going to vote? It would just be something that certainly would affect the kind of turnout you'd see in a city on Election Day. ...
What we don't have are good rules for dealing with either a terrorist attack or a natural disaster that could affect an election outcome in a presidential election.
What we don't have are good rules for dealing with either a terrorist attack or a natural disaster that could affect an election outcome in a presidential election. It's much easier to rerun an election or take some other kind of remedial measure when you're talking about a local election.
On concerns about voting machines themselves
[Pennsylvania is] rolling out new voting machines. There's a whole new set of voting technology that's out there now. Some of the new technology uses bar codes to print out on a piece of paper the choices of the candidate. And there's all kinds of disputes now among computer scientists, election integrity advocates and others over whether these new so-called BMD [ballot marking device] machines are secure enough for counting.
One issue is, if you have a bar code on there or some QR code, it's not something the human being can read. It's just a series of lines, and you don't know who that vote is for. The candidate choices are also going to be printed on that ballot, but one question is going to be, are people going to check to make sure that those ballots printed the names correctly? And in the event of a recount, what would control the bar code or the names on the ballot? Given how much suspicion there is now about hacking and about the lack of safeguards across all of technology, I think a lot of people are worried that if we're going to rely on bar codes that are going to be counted by machines, that are produced by companies that are for the most part private for-profit companies, that there's not enough security in that kind of system when it comes to counting votes. That's why many people have called for a hand-marked paper ballots ... that is the best format for voting, because then you can look and see whether someone bubbled in that circle for Trump or for his Democratic opponent.
On his biggest concerns for the next 10 months before the 2020 presidential election
No. 1, the media needs to have an important role in educating people about the vote counting, in not calling elections early, not calling them prematurely until they're convinced that enough votes have been counted, in educating voters about how long the process takes. The American public is going to be really sick and tired of the 2020 election by the time we get to November, and they're going to want an instant result. And yet the people need to be prepared that it's going to take a week or two. So that's, I think, at the top of the list for the news media.
At the top of the list for state and local officials, it's finding those weak links, it's having contingency plans that are in place to make sure that the election is going to be smoothly run, especially in swing states, especially if there are internal, external forces that try to disrupt the election. And having plans for post-Election Day for giving out clear, transparent information about how the vote-counting process is going to take place. ...
Third, behind the scenes, there needs to be a tremendous amount of cybersecurity work to make sure that we don't have the kinds of disruptive hacks of our infrastructure or of our voting technology that could affect the outcome of the election or — just as important — cause people to think that the election outcome has been manipulated even if it hasn't.
On the long-term changes to our election system he would like to see
I think I would move to national elections. If you look at the way advanced democracies [hold elections] (think, Australia, U.K., Canada) ... they all have national voting systems where civil servants who are not partisans are running the election. The voting machinery is the same. If you go anywhere in the country, things are much more streamlined and they're simpler. I would do that.
I would also have universal voter registration. So every voter, when [they turn] 18, gets registered to vote and gets a unique voter registration number that stays with [them] for [their] entire life. I think that kind of system and I'd have a national voter ID card where people could use their thumbprint if they prefer, rather than their ID in order to vote.
Sam Briger and Mooj Zadie produced and edited the audio of this interview. Bridget Bentz, Molly Seavy-Nesper and Meghan Sullivan adapted it for the Web.
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