Election Meltdown, Part 2

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Aside from going to war or maybe the census holding it election is the most complicated thing we do as a country. You just expect them to work until they don't all we need to do. More to recruit and train a talented workforce of election workers on election day. Hi and welcome back to amicus. This is slates podcast about the law. The rule of law the Constitution and the Supreme Court on Dialectic and I cover over those things for slate and this is the second part of our five part series election meltdown. Rick Hassen is the author of the book of the same title. He's also a professor of election law at UC Irvine. And he's here to help us. Think about the increasingly desperate pressing question. Can American democracies survive the twenty twenty election. You know it's a pretty serious question we're asking but we're trying to ask it in a way that will get people engaged and thinking about these issues before before it's too late. Can't wait till October to worry about what's going to happen in November. What I ask could possibly go wrong with November's election so I've got two scenarios that really worried me? Imagine for two thousand type situation with trump in the White House then those precincts can't be counted a pretty wide scale voter. Purge we've been asking civil rights lawyers public officials local journalists and disinformation experts for their election doomsday scenarios imagine. It didn't deep fake the night before an election a scenario in which people did leave the Internet and take much more physical action. Air System is is only going to work if people have enough confidence in it that they can accept the results. We're not asking these questions so we all spiral into despair but instead instead to think about what we could do now before November to protect the most important thing we do as Americans voting of course if you want to spiral into despair. That's totally on you. But if you want to be part of this unbelievably important conversation. Do Join US in Washington DC on February nineteenth for the amicus election. Meltdown live show. Oh featuring former Florida gubernatorial candidate Andrew Gillum MacArthur genius fellow and Vice President of the Cyber Civil Rights Initiative Daniels Citron and and the director of the ACLU's voting rates project. Dale hope go to sleep dot com slash live particularly this week. The storm of the Senate impeachment trial of Donald J trump has swirled and blustered and buffeted. But were trying to not get blown off course with this project an amicus listener her and actually a slate contributor Scott Pill you tick said in a post about our election meltdown series on facebook. This week quote. It's not as juicy topic as the daily daily reality show. That's been the hallmark of this administration. But I have a strong sense. It may be on the final test and listen. I'm only quoting that because it is especially true of what we're going to talk about this week last week. We heard about the pernicious myth of widespread voter fraud and how it bolsters subsequent voter suppression and this week. We're turning to what Rick Incompetence. Yeah so you know voter suppression is sexy. I think in the election world as as these things go. That's our scale and Talking about competence and election ministration. Sounds like it's about as boring as it can be but when you hear some of the things that have actually gone on. It's going to raise the hair on the back of your neck. Small mistakes in election administration can snowball into big problems. Big mistakes can throw something as huge. Who won the presidency into question? Remember as we talked about last week. My main concern about both voter suppression and thinking about incompetence is how is this undermining undermining people's trust in the fairness of elections. If you think that people can't company count the votes that's a good reason to be worried about the fairness of elections so some of the podcast guests listeners. Probably are old enough to remember Bush versus Gore and the two thousand election with its famous hanging chads and voting machines that didn't work and the inability to figure out. If people were voting for Bush or Gore Pat Buchanan there was a famous for Buchanan. Vote You may remember this. The Butterfly ballots. All of this is probably bringing back some terrible terrible memories for some of your listeners. But some of your listeners. We'll probably too young or not paying attention back at that time. The upshot of the two thousand election was that we had a lot of problems with how we ran our elections one study found that about a million votes across America were lost in two thousand. Due to incompetence in how votes are being counted. You'd think that almost twenty years after Bush versus Gore we. We have gotten better. It hasn't worked out that way. At least not everywhere you can look at Broward County Florida. That was a huge mess. But we're going to focus on another another case. One has gotten a lot less attention than Brenda snipes. And Broward County Florida and her problems with counting votes in two thousand eighteen and one that could be very important which the case of Detroit Michigan and sleep plus members will actually be getting more insight into what's going on with elections in Detroit and Michigan. You owe will have access to an extended interview with Michigan Secretary of State Jocelyn Benson who actually offers a glimmer of hope. So look out for that in your slate plus feeds. And if you're not a slate plus member now's a good time to check it out with a two week. Free trial that you can find at slate dot com slash amicus plus. But before we speak to Secretary Benson. I spoke to another michigander. He's been following elections closely there for a long time. So my name is Joel Kurth. I'm the Managing Editor Attar Bridge magazine in in Michigan. We're along form nonprofit public policy journal and before that I was the editor of investigations at the Detroit News. I was the lead reporter in the two thousand sixteen election meltdown involving Detroit's Freud unaccountable precincts. There's this thing called. The Weakest Link Axiom of election ministration the accuracy of an election system and voters confidence in that. That system is only as strong as the weakest parts of that system. And the case of Detroit and more broadly Michigan as an example of this. I've been a reporter in Detroit for about fifteen years and with every election in Detroit. There's allegations of MIS MIS voting loss ballots ballots have been found in in the trunks of cars. There's often power outages at precincts during elections. There's difficulty counting ballots ballots to remember the way that trump surprisingly won. The two thousand sixteen election is that he won a narrow electoral college victory in three Midwestern states if it's fair to call Pennsylvania mid western Michigan Pennsylvania and Wisconsin and the margin across the three states was eighty eighty thousand votes. Donald Trump won by about ten thousand votes in unofficial election results in Michigan and those that razor thin. Obviously we're talking about five. Million ballots cast a few days after the election. I got a phone call from a pretty good source. That says there's not going to be able to count the ballots in Detroit. And I I think the person was trying to tip me off. Because there's a law in Michigan that says on reconciled. Votes cannot be recounted so Jill Stein. You've remember her. She was the Green Party candidate. That many Democrats think cost Clinton election some of these places. Jill Stein demands a recount the Clinton campaign. They don't think that they're going to win. In a recount. But they decide. Hi to act as observers and Michigan has these very strict regulations as Joe said about. When can you do a recount for recounts what happens? Is People cast ballots in boxes and then there's a sign and cheat as well and so the numbers on the sign in sheets have to match. It's the number of ballots in the box unless there's a reconciled difference a paper Jam a loss and they have to be caught on election night and if they're not caught on on election night with an explanation than those precincts can't be counted and so I got the took a day or so but I got the the the called reconciliation sheets of six hundred plus precincts in Detroit and I found that more than half of them. The counts were off by five or more which means that they couldn't be subject to recount by Michigan Law which is a pretty strenuous law but also given the context of Detroit's problems doesn't doesn't give a lot of faith in the system just to be clear now we're talking about boxes and checklists and stuff that's left in car car straight. This is how we decide elections in America. Like it's eighteen o four so it's not true everywhere in some places aces election administrators. Do a whole lot with very little in terms of resources but there are places where their problems and there have been great improvements in many states. But what happened in Detroit is evidence that there hasn't been improvement everywhere and if you have a really close election where's the attention GONNA go. It's go to the place. That is the weakest link so precinct. One fifty two is pretty infamous because fifty two ballots were are discovered in a ballot container. Three hundred and seven votes had been logged into a poll book and at the end of the day. They found out that there was a tub of ballots on the tabulate and that they hadn't been sealed so they couldn't couldn't be counted. I think it speaks to the general sloppiness in Detroit. It wasn't just the two thousand sixteen election the most recent election two thousand eighteen. There was another recount involving the city Clark because of misplaced ballots on sealed ballots open ballot boxes and it's pretty frequent occurrence in Detroit. This really undermined people's if feeling of integrity in the process the infamous precinct. One fifty two those ballots that had never been counted. It led to conspiracy theories aries Worldnet daily had headline quote stealing the vote recount cover series fraud in Detroit Fox News inside Claire Quote. oops Stein's recount turns up more votes. It's been voters in Detroit. And even the Detroit Free Press had an inflammatory headline quote. Detroit's election rose seven hundred eighty two more votes than voters. You got under my people's confidence process. Nothing could be less interesting than talking about tubbs uncounted ballots Out who the next president is concern on it. This is just the section Where we just talk about how we're here at it is that in the twenty first century I can pick up My phone an order Exactly the right number of Milligrams of rice in my I Chinese food we can do everything perfectly. It's delivered to our door and yet still we lose. Boxes of ballots and machines don't work and AH hanging chads determined. I mean there's a way in which so much of what you're calling incompetence is just. We run elections as though it's still rock doc in eighteen forty well so first of all last night before we recorded this podcast. My Chinese food delivery was wrong twice. Okay Hey I. They brought their own food than they forgot. The rice and Psych America's democracy crumble. If I didn't get my dinner similarly people say well why don't we just vote with. ATM machines. Well you know this billion dollars in fraud every year with ATM machines and the Republic still stands because banks are willing to absorb that as the cost of doing business if we had that level of Arab with elections. We'd be in big trouble. I mean think about this is aside from Going to war or maybe the census a holding an election is the most is complicated thing we do as a country and we have this history of decentralized elections so we don't hold one election on election day we're actually holding thousands of elections or even holding over thousand awesome elections just in the state of Michigan and most election officials do a very good job in how they run their elections. But there are these places where there are still problems so remind us rick what what in the end happens with this recount. The court stopped the recounts not only does Michigan. Have some problems with you. Know How poll poll workers are administering their elections. They also have some problems with the rules. For running recounts and This recount stopped Clinton. Didn't kick up more of a fuss because she didn't think she could win. You'd think that with these ballots. Uncounted Detroit ballots going to heavily favor Clinton but they calculated wasn't enough to to make a difference. Maybe maybe they didn't want to shine more of a light on the problems in Detroit because Detroit as many American cities are as as a city run by Democrats. The State Board of elections ends did an investigation and their conclusion is it was mass incompetence. They found no evidence of any effort to try to stuff ballot. In fact in Detroit at the end of the day I think the difference was about five hundred ballots that they couldn't reconcile and the former state elections director Chris. Thomas conducted an audit and they found that it was it was poor worker training. It was the ballot that machines themselves were ten years old. They led to frequent jams thereabouts. Misplaced but that there was no effort for to throw the election. This is this is the result of an old cities aging infrastructure poorly trained workers. Who Work you know? One day every four four years or a couple elections And and and just really poor practices rather than fraud no malfeasance but incompetence correct Ed. I'm wrong but it's race actually. That plays a pretty big role in attacks on election administration in Democratic areas. Like Broward County in Florida and in Detroit right. The fact is there's incompetence across the board but when you're talking about where the large numbers of votes are and where Democratic voters are there in the large cities and it's because this of this that people like trump focus on the incompetence of election administrators in places that have large minority populations often often run by people of color who are the election administrators and race just becomes a part of this conversation in often In ways from trump that seemed tinged with racism Broward County in two thousand. Eighteen was a very close race for the United States. Senate Senate between the incumbent Democrat Bill Nelson and the outgoing governor and Republican candidate. Rick Scott Brenda. Snipes was the election administrator in Broward our county and she had a history of problems and how she administered elections. She wasn't transparent at all. She didn't tell Rick Scott when they were sector. We got how many ballots were left to account. Trump goes on the attack against Brenda snipes. An African American woman. It was one of a number of attacks of African American women that trump had announced at the time. Here's president trump shouting over the blades of Marine One back in November Twenty Eighteen Broward County County. They have had a horrible history. And if you look at the person in this case a woman involved she has had a horrible history and all of a sudden they're finding votes out of nowhere and bricks. God who won by you know it was close but he won by a comfortable margin every couple of hours. It goes down a little bit. And then you see the people and they were involved with that broad of the the fake dossier the phony dossier not a and I guess I hear they were somehow involved. They'll work with the GPS fusion. People who have committed I mean you look at what they've done you you look at the dishonesty. Look look this bad. Things have gone on in Broward County really bad things. She's been to court. She's had a lot of the problems she's lost. I say this he easily won but every hour it seems to be going down. I think that people have to look at it very very cautiously obviously well. That was a pretty bizarre episode of chopper. Talk Right there There was no evidence that Brenda snipes ever tried to steal election. There was only evidence of incompetence not sure how. GPS Fusion worked. Its way in there. It's kind of a web of conspiracy theories Lead as far as the Ukraine Colin impeachment. But no evidence of rigging the vote vote just your good old fashioned incompetence but Democrats In a tough spot in terms of how they respond to such attacks because they don't want to call out it's Their own people for messing things up. Listen to Joe Kurth from Michigan's Bridge magazine again and you can hear that dynamic that we saw in Broward County also play out in Michigan. Obviously this is their base. It's largely minority. You don't want to accuse them of being incompetent and you want to respect their autonomy it. It opens the Democrats up to accusations of incompetence that you see of Republicans accusing Democrats of rigging elections. When a lot of times? uh-huh these are sort of really simple mistakes. But they can't have good explanations for why they occurred. It wasn't just a trade. A lot of the heavily. Urban counties had similar problems as Detroit. There is a genesee county which is Flint I believe Saginaw County had similar problems. This very pernicious a symmetry here when Democrats have problems with incompetence. They're accused of voter fraud. They're accused of stealing the election and Republicans. Look the other way when the incompetence this happening opening in Republican areas and so I think you know the the double standard gets applied once again. I think it's a real balancing act. I think in in urban areas. Obviously they're dealing with many problems in decades and decades of disinvestment that that lead to some voting irregularities on on wider scales. I will say though to that. It's it's not any different than what's happening on on smaller scales in rural places. It's just a matter volume but but but let's be clear in. This goes back to the fundamental point of your book that whether we're talking about incompetence in election administration in Democratic areas in Republican controlled areas and to be sure Georgia has had some very serious problems which we'll talk about in a later show in this series but the effect overwhelmingly is the same name which is it undermines confidence in the electoral process. And it's easier to believe a conspiracy theory than to believe. Incompetence is the the soul. 'cause the fact of matter is that when elections are administered badly when there are problems it can have a profound effect on people's trust. The Green Party is convinced that elections are stolen systematically in Detroit And I think on the other side the Conservatives do as well and I think that the vast merge middle the eighty five percent in the middle have a sort of a shoulder shrug of. That's just how things happen. Sometimes in Detroit. It's not a great way to run a democracy. Moxie I mean you want you want ultimate like utmost faith that your vote's going to count and unfortunately especially in Detroit in sometimes in Michigan. That's just he. He can't always be sure. That's the case. So here's the problem when things go wrong and places like Broward County Detroit in Georgia the news media and interested I did. Parties rarely differentiate between incompetence and deliberate abuse. Or that's a French comes later on down the line when the damage is already done. It took months for Michigan election officials to investigate. In the meantime what People Watch Fox News alert that there were more votes than voters in the city of Detroit. I don't I think that there's been any evidence of trying to throw elections. That have been you know that that are credible. But I think that it's it's hard not to let let your imagination wander if you're frequently having power outages in precincts during elections in. You're losing ballots. Why wouldn't you have conspiracy theory? Maybe this is a good corollary to your initial point. which is we only think about broken election systems in the week before elections actions? We only think about them again in the week after and so if six months later of finding comes out no harm no foul or no fell but harm arm. It's too late for anybody to care and conspiracy theories not only get fixed in our education but they have a pretty big megaphone in this current current White House the way in which election returns come in from urban areas absolutely amplifies some of the worst conspiracy mongering right sure so the largest the jurisdiction the longer takes to count the votes. The more people there that are voting with provisional ballots or might be maybe their new voters the longer takes to count the votes. What's these tend to be? In urban areas. These tend to be in areas that have more democratic voters. And that's why we see what professor Ned fully has called the big blue shift where votes started out being more Republican and as more votes are counted. You end up with A democratic surge. We saw this. You may remember in the two thousand. Eighteen gene election as California was counting millions of absentee ballots. We saw election after election in Orange County. California swing from Republicans in the lead to Democrats that that wasn't because there was any conspiracy of us just because that's how election administration goes and trump was saying. Let's just take the results as they aren't election day here. He wants to freeze time when he's in the lead But in fact We do see the shift. Not An affair is reason for it. But if you're inclined to believe those conspiracy theories you may indeed find that. There's something problematic about it. Okay so rick. Having focused laser focused on Michigan's problems and specifically maybe Detroit's problems. Is there some glimmer of hope here to be gleaned. Well you're not gonNA find it for me but you might find it from Jocelyn Benson the former election law professor and and Law School Dean Now she's a secretary of State of Michigan and I should pause for a second. Say We've been talking about secretaries of state What are they? They're the chief election officers officers of the state but they don't actually get to run the elections in each state because those elections are run on a county or even sub county level out but they do have some control over. How elections Iran on so Benson literally wrote the book on Secretaries of State and called secretaries of state guardians of the democratic process which I think is more aspirational racial than descriptive But she's now In charge I asked her about some of the concerns. Raised by Joel Kurth. And here's what she has to say in twenty any sixteen the heart of the errors pork or based Human error poll workers making errors in the way they left records of ballots after they were cast And the human errors were identified in the recount process The integrity of the election itself was not in question. I in fact it just underscored again in my view. The examples the types of examples of mistakes that human beings can make when they're running the election process so they're useful points of reference for US also as we train our election workers for future elections and part of the reason. Frankly why I've made recruiting and training porkers across the state One of my priorities for preparing for twenty twenty and across the country particularly in urban areas. We need to do more to recruit and train a talented workforce of election workers on election day to ensure they are prepared to follow the law and And protect the process of the vote are places like Michigan and Florida and Georgia have. They learned what they need to know. Oh and they they geared up and ready to do November twenty twenty right. Well I have more hope than do optimism. If you you asked election ministries in two thousand twelve with the biggest problem. They might face in two thousand sixteen would be. They might not have said Russian operatives trying to hack into our voter registration databases which. There's something that we know happened. Sometimes you're fighting the last war so now there's a lot of concern about cybersecurity but we've got a lot of places that are rolling out brand new voting machines funds being used for the first time. It's like premiering your new play straight to Broadway you know high risk there and so You know I'm not sure what the the future is going to hold. I know that there are a lot of good people with good intentions. Who are trying to make elections better but but not everyone and some people are trying to make things worse so in the book a collection meltdown? I conjured up. Kind of worst case. Scenario and the worst case scenario is Rather than those isolated power outages Joe Kurth talks about in Detroit. How `bout if there's a cyber attack from a foreign entity that brings down the power grid in the city of Detroit on election day and the potential for us not being able to run the election over we only have one election day for president What happens then? I raised the scenario with both drill Kurth and Josten fence and ask them what they thought would happen. If there were such an attack it'll be absolutely cast and I think it would hurt the You know people would not have one vote anymore and that specific example in terms of a power outage on election day we have generators in place and backup plans and of course paper ballots To enable us to actually keep proceeding if we are all in close communication with the fifteen hundred jurisdictions in this case the one jurisdiction in Detroit or or others that may be affected our preparation for things like that whether they be natural disasters or you know the acts of nefarious People people trying to attack our system really relies on us to be close to the ground on election day and prepared for all these potential scenarios just as we are for a power outage and then also so partnering with the Department of Homeland Security And and with other national entities like the information sharing and analysis center. I sack So so that we are in real time getting support and feedback if these things are happening in other places as well and and so. I feel that we're more prepared than ever and I. I say this not just permission but I think other states as well to deal with types of attacks you're referencing Because there's been so much more attention and proactive active preparation and planning in place that I think ever before and with fifteen hundred jurisdictions certainly leaves it open for for challenges and wrinkles but but I'm I'm bolstered emboldened by the fact that we've got so many people with is on this problem. Identifying potential solutions and our goal is to make sure all those people bler in place on election day for rapid response. Plan to be executed if anything does as you suggest that happen So what I take from Jocelyn Jocelyn Benson is actually a nice tidy summary of the thesis of your book which is that somebody who has the role of Secretary of state it has to say the aspirational thing has to say. It's fixed the system works. Get out there and vote and there's nothing to worry about whereas the journalists whole whole curse is pretty much saying you have reason to fear the doomsday scenario because it could really happen. And there's a weird way in which we're having two conversations conversations one about what is and one about what we can't say might be simply because we want people to get out there and vote but I took away from Secretary Benson and that she has limited control over her fifteen hundred jurisdictions. She's doing the best she can with what she has to work with and she's going to try and be as transparent as possible. Oh I think not. Only promoting confidence is important. But being honest with what's going on and I think that really when I look incompetent election administrators they always say breath. It's not the crime it's the cover up Lots of times when election officials are not telling you what's going on it's because they're covering up there malfeasance or their misfeasance and With someone like Secretary Benson. If she could control the entire election system of Michigan I would probably have more confidence than the fact that she is this general coordinator of an election being running fifteen hundred jurisdictions Chris. Dickson's so I asked Joe Kurth if things are potentially going to get better for twenty twenty. And here's what he said ultimately always comes down to just sort of like. Roll the dice in Michigan. It's really sad to say that but Sure as rain. There's there's GonNa be a problem in Detroit this crisis For six months after there's a crisis and then everybody forgets about it It's not a sexy thing to who invest in And it's something like sewers. You know you just expect them to work until they don't and you're not GONNA win elections. He's standing up and in talking about how you just hired you know ten times more. Volunteers or new. Optical scanners is not a sexy subject until bill until it all falls apart. I guess we are now simply hoping that. It doesn't rain in Detroit in November of twenty twenty and and also that the boxes and the bins and the papers are all in good order. Well Talia I don't know how religious you are but There's something called the election administrators ministers prayer. which is Lord? Let this election not be close and really I wrote that in my talk about that. In Two thousand twelve book the voting words and here things have not changed changed the best solution to a the best way to avoid an election tobacco for an election not to be close. Because when it's close your you're peering into the bins you're cleaning the gunk out of the machines. We didn't even talk about Palm Beach. County attempt to run a recount in two thousand eighteen. Where the vote counting machines that were recounting? The ballots ended up failing because an election worker thought the machines. We're going too fast and shoved a paper clip into the mechanism and caused the machine to explode. So that's what it's going to come down to you so you know like a sewer It stinks we've talked now about Votes oppression and the myth of vote fraud in our first episode in our second here. We've just finished talking About just incompetence and technology and the great broken -ness of you've electoral systems. What's coming up next? So we'RE GONNA TURN TO JERRY tricks. We're going to look at that contest. Election in North Carolina in two thousand only eighteen this congressional election with its absentee ballot problems. Russian interference in two thousand sixteen as well as the twenty seventeen Senate Senate race between Doug Jones and Roy Moore in Alabama. You remember. That was the race that came up. When Jeff sessions became attorney general and some dirty tricks done on in that race? That might surprise you and that is Iraq for this part two of our election. Meltdown series here on amicus from me and from Rick Casson. Thank you so much for listening in. If you want to get in touch our email is amicus at dot com or you can always find us on facebook facebook dot com slash amicus. Today's show was produced by Sarah Birmingham. Gabriel Roth is editorial director of sleep. PODCASTS and June Thomas is senior managing urging producer of sleep. PODCASTS late plus members. You have a bonus episode coming your way everyone else back with you in a week for part. Three of election Milton

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