Election law expert Rick Hasen asked the group that gathered recently at the University of California’s Washington Center to consider a “hypothetical world” in which the country has a very close presidential election:
“Let’s say the presidential election comes down to Wisconsin and its 10 electoral votes. At about three o’clock in the morning, the numbers have stopped coming in. The Democrat is ahead by about 200 votes out of about 6 million ballots.
“The Republicans start complaining about the election. Claims of voter fraud start filling up conservative blogs. All over Twitter, things are heating up.
“The next morning, Kathy Nickolaus, who is the election supervisor of Waukesha County, Wis., holds a press conference. At that press conference, she said, ‘I was collecting all the results as they were coming in from the different parts of my county on my laptop and it turns out I forgot the city of Brookfield and its 15,000 voters.’
“When you add in the entire city of Brookfield, it turns out the Democrat is now behind and the Republican is ahead by 7,000 votes.
“So, now it’s the Democrats’ turn to complain. The liberal blog Think Progress points to the fact that Kathy Nickolaus used to work for the Republican state legislature.
“The URL at the top [of the story] reads ‘Kathy Nickolaus Crook or Idiot?’
“Ramona Kitzinger ... is supposed to be looking over the shoulder of the Republican [Nickolaus] to make sure that the vote totals are accurate. The next day, she issues a statement through the Democratic Party. The statement reads in part as follows: ‘I’m 80 years old and I don’t know anything about computers. I don’t know where the numbers Kathy showed me came from, but they seemed to add up. I’m still very, very confused.’”
Once the incredulous and at times nervous laughter subsided, Hasen pulled back the curtain on his big reveal — that the story he just told was true and the only detail changed was that it wasn’t a presidential election but Wisconsin’s Supreme Court race. The winning justice ultimately decided the fate of the state’s collective bargaining reform law, unleashing a flood of partisan bickering in the state.
The same scenario unfolds in the opening pages of Hasen’s new book, “The Voting Wars: From Florida 2000 to the Next Election Meltdown.”
After describing the meltdown in Wisconsin — which serves as a parable and possible harbinger of things to come — Hasen walks the reader through the battles over voter identification measures, registration purges, vote-counting policies and failed technology that have taken place over the past decade, many of which are still issues as the next elections near.
Hasen starts with the abandoned Florida recount that sent George W. Bush to the White House instead of Al Gore. Palm Beach County’s “butterfly ballot” is described as “calamitous” for its voters. The county-level canvassing boards handling the surge in overseas ballots “threw all the rules out the window.” Florida Secretary of State Katherine Harris, a Republican, presided over a “reckless” purge of possible felons from Florida’s voter rolls. The U.S. Supreme Court decision in Bush v. Goreto halt the recount set the stage for deeply partisan conflict over election law and administration.
“It was a nasty dispute that stings partisans to this day, and a taste of what the nation could endure for the next decade,” Hasen writes.
He then moves on to the idea of fraud and the role it has played in voter ID laws and attempts to purge rolls of ineligible voters.
Hasen lambastes Republicans for supposed “unsubstantial charges” of vote fraud that have become part of the “conservative orthodoxy.” And he alleges that a “Fraudulent Fraud Squad” — founded by lawyer Thor Hearne, former Sen. Kit Bond (R-Mo.), Bush strategist Karl Rove, columnist John Fund and former Justice Department attorney and Federal Election Commission member Hans von Spakovsky — is responsible for a misinformation campaign to paint isolated examples of fraud as a trend.
How many “isolated examples” would it take to qualify as “widespread” fraud? Hasen doesn’t say. He does, however, touch on some of the cases that voter identification advocates have cited in their efforts.
“The Fraudulent Fraud Squad desperately needed examples of significant impersonation fraud to justify voter identification laws because this is virtually the only kind of fraud that a voter identification law would prevent,” Hasen writes. (The book was published before the case of Wendy Rosen, a Democratic House candidate in Maryland caught voting in two jurisdictions, came to light in September.)
If Hasen is hard on Republicans in the chapter on voter fraud, he is skeptical of Democrats’ claims about voter intimidation efforts in the next. A 2010 television ad financed by an anti- abortion advocate in California that encouraged Latino voters in Nevada to refrain from voting backfired. Instead of depressing Hispanic turnout — to the benefit of tea party candidate Sharron Angle, who lost to incumbent Democrat Sen. Harry Reid — it energized the Latino base and Nevada Democrats in general.
“The bottom line on (mostly Democratic) charges of voter suppression since 2000 is mixed,” Hasen writes. “Some charges are justified, others are arguable, and others are no more legitimate than Republican cries of voter fraud based on the registration of Mary Poppins.”
Partisanship, Technology and Social Media
Hasen uses Ohio, where “Democrats and Republicans were engaged in an all-out war” during the 2004 and 2008 presidential elections, to illustrate the myriad decisions that must be made when deciding who qualifies as a voter and when their ballot can be cast.
He pivots from former Ohio Secretary of State Ken Blackwell, a Republican whom Democrats viewed as “evil incarnate,” to his successor, former Secretary of State Jennifer Brunner, a Democrat who “could well have put her party allegiance ahead of her responsibility to help voters,” before wondering whether current Ohio Secretary of State Jon Husted, a Republican, could remain above the “partisan fray.” (Since the publication of the book, Husted made decisions regarding changes to Ohio’s early voting rules that have been challenged in court.)
It’s those legal challenges that Hasen cites as evidence for the growth of the problem.
He describes the uptick in election-related legal challenges, reporting that, in the period before Bush v. Gore, courts collectively decided fewer than 100 per year. In the aftermath, that number has increased to at least 230 such cases annually.
Antiquated technology has also played a role in the decaying of the election system.
Hasen describes how, when an elections and ethics board told hackers to try to expose vulnerabilities in an online voting system, the challenge was quickly met.
To conclude his account, Hasen returns to Wisconsin to illustrate how social media has amplified election controversies. Any future Florida-level meltdown, he writes, will degrade Americans’ confidence in the electoral process — and the government — even more.
“The chances for ‘another Florida’ are all too real. And political provocateurs, now aided by social media, have spent the past decade fighting the Voting Wars in a way that will ensure our next disaster will be far worse,” Hasen writes.
Vice President Joe Biden waits to conduct a mock swearing-in ceremony with Sen. Brian Schatz, D-Hawaii, in the Capitol's Old Senate Chamber, December 2, 2014. Schatz was sworn in to serve the remainder of his term since he was appointed to the seat after Sen. Daniel Inouye, D-Hawaii, passed away.