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By ZACK STANTON
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.
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