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“Now Is a Moment for Vigilance”: Rick Hasen on the Election and Democracy’s Future
14 Plays1 year ago
Internationally renowned election law expert, Rick Hasen, joins SpeechMatters to reflect on last week’s election, the role of disinformation in the lead up to it, and the types of challenges our democracy may face under the new administration.
Episode Resources:
- The Safeguarding Democracy Project: https://law.ucla.edu/academics/centers/safeguarding-democracy-project
- Election Law Blog: https://electionlawblog.org/
Recommended
Transcript
The Role of Free Speech in Democracy
00:00:03
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I think what we need to do is explain how our principles of free speech, free inquiry, will help serve the cause of justice.
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The First Amendment, the constitutional freedom of speech and freedom of conscience that is the bulwark of our democracy.
00:00:22
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There was a passion in what was being said, affirming this, what people consider it a sacred constitutional right, freedom of speech and freedom of association.
Introduction to 'Speech Matters' Podcast
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From the UC National Center for Free Speech and Civic Engagement, this is Speech Matters, a podcast about expression, engagement, and democratic learning in higher education.
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I'm Michelle Deutschman, the center's executive director and your host.
Analysis of 2024 Election Results
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After over a year of political campaigning, including numerous twists and turns, one of the most closely watched and consequential elections in American history is settled.
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Donald Trump will serve as the 47th president of the United States.
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When I thought about this month's episode, I anticipated we would be talking about contested elections, hand counting of ballots, and whether or not the Supreme Court would need to be involved.
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Instead, Trump won both the Electoral College and the popular vote, winning all of the seven battleground states.
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Despite this decisive win, numerous questions remain.
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Is this a political realignment in American politics?
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What's the role of growing disinformation and foreign interference in the fair running of elections?
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What will the implications of this election be for the future of American democracy?
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These are complicated questions, which is why we are lucky to have today's guest, Professor Rick Hassan, who's equipped with over 20 years of experience writing, thinking, and talking about elections and the laws that govern them.
00:01:49
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We will turn to him in a moment, but first, class notes, a look at what's making headlines.
00:01:55
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Although election analysis will be continuing in the weeks and months ahead, a few items to note include the growing divide between college-educated and non-college-educated voters.
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According to the Chronicle of Higher Education, last week's exit polls showed that 41% of college grads voted Republican compared to 54% of voters without a degree.
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This year's 13-point college degree chasm was more significant than in both 2020, when exit polls showed a seven-point divide, and in 2016, when the difference was nine points.
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CIRCLE, the Center on Information and Research on Civic Learning and Engagement, shared its initial numbers on turnout by youth voters ages 18 to 29.
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42% of young people showed up to the polls overall, with 50% turning out in the aggregate and key battleground states.
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So far, it looks like youth turnout was lower than the historic rates in the 2020 election, which hovered between 52% and 55%, but on par with the 2016 election.
Educational Changes Under Trump's Presidency
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Many policymakers and analysts are busy prognosticating about what a second Trump presidency will mean for higher education.
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Some fear the dismantling of the Department of Education.
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Others are concerned by Vice President-elect J.D.
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Vance's characterization of professors as, quote, the enemy, unquote.
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Although it's looking like Republicans will have control of both the House and the Senate,
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Trump will not need Congress to rescind Biden administrative executive orders, including new Title IX regulations and student debt forgiveness.
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President-elect Trump has promised to conduct civil rights investigations into schools that use race and admissions and has pledged to reinstate his 1776 commission, which seeks to promote fair and patriotic civics education.
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Now back to today's guest, Rick Hassan.
Guest Rick Hassan on Election Integrity
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Richard L. Hassan is the Gary T. Schwartz Endowed Chair in Law, Professor of Political Science by courtesy, and Director of the Safeguarding Democracy Project at UCLA School of Law.
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He's an internationally recognized expert in election law, writing as well in the areas of legislation and statutory interpretation, remedies, and torts.
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He is co-author of Leading Casebooks and Election Law and Remedies.
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Hassan served in 2024 as an NBC News, MSNBC election law analyst.
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He was a CNN election law analyst in 2020.
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He is the author of over 100 articles on election law issues published in numerous journals, including the Harvard Law Review, Stanford Law Review, Supreme Court Review, and Yale Law Journal.
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His op-eds and commentaries have appeared in many publications, including the New York Times, Wall Street Journal, The Washington Post, Politico, and Slate.
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Hassan also writes the often quoted election law blog, which the ABA Journal named as the blog 100 Hall of Fame in 2015.
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Rick has taught at the Chicago Kent College of Law Loyola Law School, Los Angeles, and University of California, Irvine before moving to UCLA in 2022.
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He represents the best of the UC system with a BA from UC Berkeley Go Bears and a JD, MA, and PhD in political science from UCLA.
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Rick, thanks for joining us today.
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We're grateful for your time.
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Glad to be back with you.
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Not only am I grateful for your time today, but I want to take this opportunity to thank you for both being a member of the Center's Academic Advisory Board and being a critical part of the Center programming these past years.
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You joined us weeks after the January 6th insurrection to talk about how to defend free and fair elections.
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And we're also the inaugural guest on this very podcast in January 2022, following the publication of your book, Cheap Speech, How Disinformation Poisons Our Politics.
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In 2022, you also founded the Safeguarding Democracy Project at UCLA, which you direct.
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This project is dedicated to promoting research, collaboration, and advocacy aimed at ensuring free and fair elections in the U.S., conducted in accordance with democratic norms and the rule of law.
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So I think that's a great place to start.
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Let's start with free and fair elections and you giving us a sense of how you think this election measured up from an election integrity perspective.
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Sure.
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So I think the first thing to say is that it was always going to be
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easier to run an election not during a pandemic than during a pandemic.
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So already we had a leg up on 2020.
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2020 was extremely challenging because people did not feel safe to be close together.
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So many more people wanted to vote by mail.
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We had some primaries that were moved because of the inability to get poll workers to come as the pandemic was raging.
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This was, of course, before the development of the COVID vaccines.
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And there were lots of deaths associated with it.
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So we all went through it, but it's worth reminding ourselves.
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I think we've kind of blocked it out at just how difficult the conditions were in 2020.
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And nonetheless, we managed to have a free and fair election in 2020.
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And, you know, one of the things that is a lesson that was learned from 2020 is that there's a difference between having a fair election and people believing that we have a fair election.
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This was the big challenge going into 2024 because we had one of the major party candidates in 2020 and 2024, Donald Trump, suggesting that if he lost the election,
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that it was going to be because there was cheating or that it was stolen.
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There was no evidence that there was any large-scale cheating or rigging of the election in 2020, nor was there such evidence in 2024.
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Because Trump ended up winning the 2024 election, all of the things that could have happened after 2024 in terms of trying to challenge the legitimacy of the election to undermine people's confidence in it, those all kind of fell by the wayside.
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We are seeing, and I'm sure we'll talk about this, a small rise on the left in belief in conspiracy theories because people on the losing side of elections increasingly can't believe that their side lost and they're looking for other explanations.
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But both in terms of how the election was run
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And in terms of voter confidence in it, I think that things are going to look better, you know, from the perspective, say, two years from now, when we look back on 2024.
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But that doesn't mean that we are in a situation where we're going to have free and fair elections and confidence in free and fair elections going forward.
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Both of those things are potentially at risk going forward in this new era.
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I'm really happy that you started with that reminder, because I think the truth is I hadn't really thought about that in quite some time.
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I think there is an element of sort of, you know, you forget certain things in order to move on.
Discussion on Election Fraud Theories
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But I want to pick up on what you were saying about confidence in elections and believing it and sort of
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Asking you your thoughts on, are there ways to help to build confidence in free and fair elections, especially now that we know that there is this, I don't know if you would say it's a new phenomenon, kind of following elections that the loser, you know, of an election is going to turn to this sort of theory of fraud or cheating.
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So, you know, I think that you could go back to the pre-Trump period.
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I date kind of modern fights over elections or what I've called the voting wars to the 2000 election.
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That's when we had a disputed election in Florida.
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The entire presidency rode on a few thousand votes in a state where many millions of people voted.
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The election went all the way to the Supreme Court.
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And that already...
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I think gave people some concern.
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I don't think many people paid attention to the mechanics of how we run our elections, but there's a lot of attention to it.
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And one of the things we've seen, at least since 2000, is that those on the losing side of elections tend to be less confident in the results of the election than those on the winning side.
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So that's true of Democrats.
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It's true of Republicans.
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If my guy won, the election was fair and square.
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If the other guy won, there must have been some problem.
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Donald Trump
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really supercharged this lack of confidence by making really outlandish claims about the integrity of the election process.
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So just to take one example from the 2016 election.
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2016 was the election that Trump ran against Hillary Clinton.
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He won that election in the Electoral College.
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He was about three million votes behind Clinton in the popular vote.
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Popular vote's just a beauty contest.
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It doesn't have any legal effect.
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But he made the claim that
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three to five million non-citizens voted in that election.
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All for Hillary Clinton, he said.
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I mean, just a crazy outlandish claim.
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And there were extensive investigations after the 2016 election to see how much of a problem is non-citizen voting.
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And there weren't 3 million or 300,000 or 30,000 or 3,000 or even 300 cases.
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There were maybe 30 cases that were being investigated nationwide.
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And so out of well over 100 million ballots cast.
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So really, there's a huge gap between the rhetoric and the reality.
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And we know that after the 2020 election, which Donald Trump, this was when Trump ran against Biden, he lost that election in the Electoral College.
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He lost that election in the beauty contest of the popular vote.
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But he convinced millions of his supporters that the election was stolen.
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It, of course, indirectly led to the assault on the Capitol on January 6, 2021.
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It's become kind of a thing that Republican voters will say, whether or not they actually believe it, that the last election was stolen.
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It's kind of become an article of faith.
00:11:34
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You have to be an election denier to be in good standing.
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I hope that now that the 2024 election is behind us,
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And assuming that Donald Trump does not try to run for office a fourth time, which should be barred by the 22nd Amendment to the Constitution that says you only get two terms.
00:11:54
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But assuming that this is the end, then maybe this stuff fades a little bit because when others have tried to make election denial claims, for example, Carrie Lake, when she lost the gubernatorial election in Arizona, those didn't get any traction.
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And so we really don't know if this is a Trump-specific phenomenon and things will go back more to normal in a post-Trump election period
The 'AI Election' and Misinformation
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or not.
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But I think that's something in terms of confidence that we need to pay more attention to.
00:12:27
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So basically time will tell and sometimes it's hard to have patience.
00:12:32
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Let's talk a little more broadly about the information, disinformation, misinformation, that trifecta in this election.
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You know, there were many people who predicted that this was going to be the AI election, whatever that means.
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And I'm
00:12:47
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Curious from your perspective, if you can share any specific ways that you saw this information playing out in this election and maybe again how that was different or similar to, you know, the last election in particular that you had written the book before and even 2016.
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So what we saw in 2020 was that the major social media platforms became sites on which false selection information was spread and the sites took some actions to try to deal with that.
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So for example, when Donald Trump would make a false claim about a rigged or stolen election, that claim might be labeled as disputed by Facebook, by Meta.
00:13:35
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It might have been demoted or had some kind of fact check associated with it.
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On Twitter, there were these trust and safety teams that were out there trying to combat election disinformation and more innocent election misinformation.
00:13:50
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One of the things that
00:13:51
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We've been recommending through a report that we put out in 2020 when I was still at Irvine and a report we put out in 2024 called 24 for 24 with recommendations is that it's really important for social media companies to make it easy for election officials to be found and to be identified as sharing reliable election information.
00:14:14
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So you know that the source that you're seeing something from, that it actually comes from an election source.
00:14:19
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And so there was some hope that in 2024 we would see the platforms continuing on this path of trying to help voters get reliable information.
00:14:30
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Unfortunately, it was much worse than just neglect.
00:14:34
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I mean, I would say at Meta, Meta is Facebook and Instagram and Threads and WhatsApp.
00:14:42
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Those are some pretty big platforms and programs.
00:14:47
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They essentially withdrew from politics, deprioritized political content, didn't do much by way of trying to police misinformation or disinformation.
00:14:56
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I think part of this was a defensive crouch on the part of Mark Zuckerberg, who just didn't want to be in Trump's ire, especially after in Trump's coffee table book,
00:15:06
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He threatened Mark Zuckerberg with severe jail time for what he did in 2020.
00:15:11
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What he did in 2020, aside from running the platforms that were trying to police election disinformation, was that he and his wife's foundation donated about $300 million to election offices around the country, both Democratic and Republican election offices, to ensure they had adequate funds to run elections in the middle of a pandemic where the costs were so much higher.
00:15:34
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And this was seen as somehow
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you know, cooking the books for Democrats.
00:15:38
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But so Mark Zuckerberg essentially put his head down and said, let's just deprioritize political content.
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Let's not police this stuff like we have
Social Media's Role in Political Content Moderation
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before.
00:15:46
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Things were much worse at X, formerly Twitter, where not only was the trust and safety team fired, but Elon Musk and his takeover became one of the major vectors of the sharing of election disinformation.
00:16:02
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So it wasn't
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that the material was simply tolerated on the platform.
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He became an active disseminator of it.
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And I think X really was transformed into a Trump propaganda outfit, at least when it came to the question of the sharing of election disinformation.
00:16:22
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By some accounts, Elon Musk put in over $200 million, not counting the value of Twitter, in trying to support Donald Trump's campaign.
00:16:31
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It's already paid off with the huge rise in the stock price of Tesla and his other properties to the point that he's actually worth billions of dollars more than he was before the election.
00:16:42
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So it was actually a very good investment for him, but very bad for the country that he became a vector for sharing election disinformation in a way that was just, again, completely not credible.
00:16:54
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He would share things that were completely outlandish and...
00:16:58
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It was done, it appears, for crass political gain.
00:17:02
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Okay.
00:17:03
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Not feeling super hopeful yet, but there is still time in this episode.
00:17:08
Speaker
Both of the two phenomenon that you just discussed are very much centered around individuals, right, so far that we've talked about in terms of, well, three, you know, Trump and Zuckerberg and then Musk.
00:17:17
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And I guess...
00:17:18
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One of my questions is, what does that mean from a policy perspective in terms of, again, trying to work on decreasing the amount and influence of disinformation, you know, when really in some ways what we're battling is individual personalities and their power on certain platforms?
00:17:35
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So one question, I think it's just a variation on the point earlier, is how much of this is a Trump-specific phenomenon?
00:17:42
Speaker
I mean, really, the way to curry favor with Trump is to claim that every election he doesn't win is stolen.
00:17:48
Speaker
Maybe that goes away.
00:17:49
Speaker
Maybe we see less of this in the future.
00:17:52
Speaker
I think we don't know.
00:17:54
Speaker
Another maybe optimistic view is that the market will sort this out.
00:18:00
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So one of the things that I've been noticing in the last few days, we're recording this about a week after the election, is that the number of followers I have on Blue Sky, which is an X alternative, has doubled.
00:18:13
Speaker
Lots of people are moving away from X. And to the extent that X becomes more like...
00:18:21
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a truth social or another right-wing platform, it's going to lose some of its influence.
00:18:27
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Now, people thought that Elon Musk made a financial blunder in purchasing Twitter.
00:18:33
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Maybe it was a wise investment if he was actually planning to use it for the political purposes.
00:18:40
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I mean, I just don't know.
00:18:41
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But the more that he allows, say,
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hate speech on his platform, the more that it becomes a vector for the spread of all kinds of disinformation.
00:18:51
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If the market works, people are going to leave.
00:18:53
Speaker
Now, let me be clear.
00:18:55
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I don't think that Elon Musk should be censored.
00:18:58
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I think just like whoever owns the New York Times or Fox News can put whatever they want up on their platforms, their private actors that can do what they want.
00:19:06
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I've called on the companies to be responsible corporate citizens, just like you'd want General Motors or any other company or any church or a union to be responsible citizens and try and support democracy.
00:19:19
Speaker
Same thing for social media companies.
00:19:21
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So I'm not saying the government should come in and shut him down or that there should be rules on how he moderates content.
00:19:31
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In fact, I filed a brief in the Supreme Court in a case called NetChoice from last year that I think we talked about when it was still pending about whether states can regulate what kind of speech social media platforms decide to promote or not.
00:19:46
Speaker
I wrote in that brief that was filed in the Supreme Court with a few other professors that it's up to those who own the platform to decide, just like it's up to the New York Times to decide what the headline is going to be.
00:19:57
Speaker
And
00:19:58
Speaker
There are other ways we can deal with problems of misinformation than censorship.
00:20:05
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Government censorship is generally a bad idea, and I always tell people, imagine the person you
00:20:12
Speaker
distrust the most being president and getting to a point the free speech czar who gets to decide what content goes up on social media and you see what the danger is and we may see some of that as we enter into this new administration we don't know what their approach is going to be to free speech despite
00:20:28
Speaker
all of the anti-censorship language coming from J.D.
00:20:31
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Vance, the new vice president, and from Elon Musk.
00:20:35
Speaker
So we'll see.
00:20:36
Speaker
But I think that Musk has been tremendously irresponsible in sharing this kind of content and in making his platform the go-to place for this.
00:20:46
Speaker
So maybe it will have less appeal.
00:20:50
Speaker
Maybe it will have less reach by the time we get to the 2028 elections.
00:20:54
Speaker
I think we just, we don't know.
00:20:56
Speaker
I mean, certainly...
00:20:57
Speaker
It would be hard to imagine looking at Twitter in 2020, what it would look like in 2024.
00:21:04
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I don't know that any of us imagined even under Musk that it would become such a cesspool and a vector for the spread of hate speech and other things.
00:21:14
Speaker
There's a lot of things that have happened that I think maybe many people, even experts and pundits and others, weren't able to imagine.
00:21:22
Speaker
And it just reminds me a lot of what we talk about when we talk about speech and ugly speech on campus, right?
00:21:28
Speaker
That we can't necessarily stop it, but what are the other levers that can be used?
00:21:33
Speaker
And you're talking about the lever here can be to not use that platform anymore.
00:21:37
Speaker
Let's move sort of from information to sort of democracy, which of course, all of this connects to democracy.
Challenges to Democracy and Civic Education
00:21:44
Speaker
But over the past bunch of years, so much of your work at your project and our work at the center has been to raise awareness and respond to threats to democracy.
00:21:54
Speaker
And this theme played out a lot in the campaigns for president.
00:21:57
Speaker
And you had a headline in your blog last week that said, Harris asked voters to protect democracy.
00:22:02
Speaker
Here's why it didn't land.
00:22:03
Speaker
And I was wondering if you could just talk a little bit about why you think maybe that wasn't a compelling message for voters in this moment and what that does mean for democracy.
00:22:12
Speaker
Yeah, sure.
00:22:13
Speaker
So first, to be clear, most of the headlines on my blog are just, if they're in quotes, it's what someone else has written as a headline.
00:22:21
Speaker
And that was an article that was in the New York Times that I was excerpting on the blog.
00:22:27
Speaker
But I do think that this is one of the most difficult questions to answer.
00:22:33
Speaker
I'm going to read to you one of the sites that I read every day is a site called Political Wire, which rounds up the latest political news.
00:22:42
Speaker
And there was a post this morning, quote of the day.
00:22:46
Speaker
This is from a 45-year-old construction worker in Philadelphia talking about why he voted for Trump.
00:22:51
Speaker
He said, he's good and he's bad.
00:22:53
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People say he's a dictator.
00:22:54
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I believe that.
00:22:55
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I consider him like Hitler, but I voted for the man.
00:22:59
Speaker
Yeah.
00:23:00
Speaker
I mean, there are certainly many
00:23:06
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millions of people who voted for Trump despite some of his views on democracy and authoritarianism.
00:23:13
Speaker
And despite the fact that you had Mark Milley and the former chair of the Joint Chiefs of Staff raising the risk of fascism.
00:23:21
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Some people, you know, they held their nose.
00:23:24
Speaker
I saw one focus group discussion.
00:23:25
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I think this was from Sarah Longwell talking about how Trump was described by one voter as crazy and
00:23:31
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Harris as preachy and the voters said, I'd rather have crazy than preachy.
00:23:36
Speaker
So that's like, I don't really necessarily like this, but there are other reasons why I'm going to vote in this particular way.
00:23:43
Speaker
But I think that for others, they were not bothered by the risks to democracy.
00:23:48
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And I think that is really something that is hard to come to terms with, that in regards of how people are going to vote, if they don't care about the issues of democracy,
00:23:59
Speaker
Then you're really in a situation where a democracy could essentially vote itself out of existence.
00:24:06
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I'm not saying that's what's going to happen.
00:24:08
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I certainly don't hope that's what's going to happen now.
00:24:10
Speaker
But if people don't value democracy, I was shocked by how much chatter there was.
00:24:16
Speaker
And of course, this is stuff that rises to the top.
00:24:18
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It becomes salient.
00:24:19
Speaker
It doesn't mean it's widespread.
00:24:20
Speaker
People talking about repealing the 19th Amendment, the 19th Amendment in 1920, which gave women an equal right to vote.
00:24:28
Speaker
I mean, just the fact that we're having this discussion makes me very concerned.
00:24:32
Speaker
I had thought, and maybe it's the decline of civics education in the United States.
00:24:36
Speaker
Maybe it's the changing nature of communication.
00:24:39
Speaker
People don't value democracy.
00:24:41
Speaker
Maybe it's the fact that people feel like their voices are not heard or that...
00:24:46
Speaker
Cities are not well kept up and government is inefficient.
00:24:49
Speaker
For whatever reason, democracy itself is not as popular as it once was.
00:24:54
Speaker
And so that is really one of the huge challenges we face going forward.
00:25:00
Speaker
Not that you'll have someone who'll sneak in as a anti small d democratic candidate.
00:25:08
Speaker
But that someone will run on that kind of platform and that will be popular.
00:25:13
Speaker
That is not something that I really expected.
00:25:16
Speaker
You know, I'm still, I'm old enough to have had democracy ingrained in my brain from an early age.
00:25:23
Speaker
Maybe that is not true.
00:25:25
Speaker
And I think the fact that people don't even understand the basics of how government works, the fact that we have this kind of civic illiteracy is a huge problem.
00:25:35
Speaker
And it's not something you can easily go back and retrofit.
00:25:38
Speaker
You know, it's not like someone's going to make a really compelling series of TikTok videos that explain the Electoral College and that that's going to solve our problem.
00:25:49
Speaker
So it really is a scary moment.
00:25:51
Speaker
And I can...
00:25:53
Speaker
tell that you're not happy with what you're hearing from me, but I do think that we face a kind of challenge that we have not seen in modern American politics.
00:26:02
Speaker
I'm definitely not happy.
00:26:03
Speaker
Not so much because I'm hearing it from you, but because I think it's the reality.
00:26:07
Speaker
And it's a reality that I have been thinking about a lot vis-a-vis First Amendment and how little literacy there is about what the First Amendment means, how it applies, sort of what the value of the First Amendment is, not just
00:26:21
Speaker
in society, but on campuses.
00:26:23
Speaker
And I think this is what you're talking about is just a larger extension of that.
00:26:26
Speaker
And, you know, there's going to be a lot of people who are going to be thinking and talking about why, like you said, sort of the value of democracy doesn't seem to be at its, you know, highest at this time.
00:26:36
Speaker
And, you know, with that in mind, I think there are some other things I would like to ask about, which is, you know, as of the time of this recording, we don't know exactly who's taking the House.
00:26:45
Speaker
But right now, it's looking like one party is going to have both houses of Congress and the White House and
00:26:50
Speaker
Of course, you know, the Supreme Court's not supposed to be a political body, but given the no six and nine justices have been appointed by Republican presidents and with the trends and opinions, it's certainly tilting to the right.
00:27:01
Speaker
And what does it mean for either future elections that one political party will control all branches?
00:27:07
Speaker
And are there enough guardrails in place to safeguard the voice of the minority, especially in a situation, as you acknowledged, where we have now a president-elect who never acknowledged losing the 2020 election?
Potential Political and Legislative Changes
00:27:20
Speaker
Well, so here, first, let me start with a kind of optimistic aspect of having all branches of government controlled by one party and then turn to the risks.
00:27:30
Speaker
So the advantage is that one of the problems that we face as a country is that our form of government, because of the division of power between the Congress and the presidency, and to some extent, the Supreme Court, it's very hard for voters to know who to hold accountable.
00:27:50
Speaker
Democrats can point at Republicans.
00:27:53
Speaker
It's Republicans in the House.
00:27:54
Speaker
Republicans can point at the president.
00:27:56
Speaker
It's Joe Biden.
00:27:56
Speaker
That's why inflation is so bad or whatever it is that they want to say.
00:28:00
Speaker
When one branch controls all the branch of the government, it's hard to blame the other side.
00:28:06
Speaker
And so voters, to the extent they're paying any attention at all, will have an easier time saying, you know, things go well in the next four years.
00:28:14
Speaker
Well, let's reward the Republican Party.
00:28:16
Speaker
If things go poorly, let's reward the Democratic Party, something like that.
00:28:20
Speaker
So having full control and actually being able to get your agenda through is, I mean, that's how it is, you know, if you think about the UK, you know, you don't have the separation of powers.
00:28:32
Speaker
And you can basically, if you're the prime minister, you've got your parliament behind you.
00:28:36
Speaker
If you have enough people behind you, you can just do your agenda and then voters can decide if they like it or they don't.
00:28:42
Speaker
And in fact, we can understand part of this election result as an anti-income mood around the world where after COVID and after inflation, people are looking for change.
00:28:53
Speaker
The question and the danger and the thing that I worry about is whether or not there will be any changes in election rules that will make it harder for there to be that kind of fair accountability in the future.
00:29:06
Speaker
So, for example, one of the items on Republicans' agenda is requiring documentary proof of citizenship before people can register to vote.
00:29:15
Speaker
This is a requirement that we know, unlike voter ID laws, which I think generally have been found to not have a huge effect on the number of people who want to vote actually voting, in part because people are able to get those IDs if they need them, that a requirement of documentary proof of citizenship will cause thousands of people to become disenfranchised.
00:29:35
Speaker
It's already happening in states like Arizona, where if you happen to fill out the state form, the state registration form, you will no longer be registered to vote in any election.
00:29:45
Speaker
If you don't provide your naturalization certificate or your birth certificate, or you've already provided that to the Department of Motor Vehicles and they can pull it off of there.
00:29:55
Speaker
If you happen to register with a federal form, this is the form that Congress has authorized through something called the National Voter Registration Act of 1983, then you'll be registered to vote in federal elections, but not state elections.
00:30:06
Speaker
Kind of a crazy...
00:30:08
Speaker
But if this were applied nationally, I am convinced that there would be millions of people who would be disenfranchised from voting in federal elections.
00:30:16
Speaker
And so that is something that is definitely on the agenda.
00:30:22
Speaker
In fact, Republicans in the House passed a bill that would have done this, and it went nowhere in the Senate.
00:30:28
Speaker
Now, Republicans, if they control the House and the Senate, what are they going to do about the filibuster?
00:30:32
Speaker
Is Trump going to pressure them to get rid of the filibuster?
00:30:35
Speaker
Might there be other changes in election rules that could be put into effect that could have a kind of negative effect on the ability to hold free and fair elections, that rather than moving in the direction of greater enfranchisement of eligible voters, we'd be moving in the wrong direction.
00:30:52
Speaker
So that's something I'm really worried about.
00:30:54
Speaker
And of course, on top of that, you have to layer the fact that the United States Senate is a very anti-majoritarian institution.
00:31:01
Speaker
We here in California, we have the same representation as Wyoming or Rhode Island or Hawaii, you know, very small states.
00:31:08
Speaker
There are more Republican small states than there are Democratic small states.
00:31:11
Speaker
So there's already a Republican bias.
00:31:14
Speaker
in the U.S. Senate.
00:31:16
Speaker
So you put all this together, there might be the conditions to increase the minoritarian aspects of the United States electoral form.
00:31:26
Speaker
And on top of that, a conservative judiciary that is much more willing to allow states, and I would say Congress, to impose rules that make it harder for people to register and to vote.
00:31:39
Speaker
And so if, in fact, some of these proposals that are floating on the Republican side to make voting and registration harder actually pass out of Congress, then their chances of being struck down in courts are not as good as they would have been even, say, 10 years ago.
00:31:56
Speaker
So I started off with a little optimism, and then I had to douse it with lots and lots of water so that you wouldn't see it grow into anything hopeful at all.
00:32:08
Speaker
Well, no, I mean, the Supreme Court has done quite a handy job of, you know, defanging the Voting Rights Act.
00:32:16
Speaker
So if you're thinking we're going to be seeing more of that, that certainly is not very optimistic.
00:32:20
Speaker
We had kind of touched on it before when you talked about people like Zuckerberg, you know, potentially wanting to step away because of some of the threats that Trump made about jail time.
00:32:32
Speaker
And, you know, President-elect Trump has talked very consistently about his interest in using the Department of Justice and other government agencies to potentially punish political foes or pardon individuals, you know, who participated in the Capitol Capitol.
00:32:45
Speaker
And I'm just wondering how realistic you think those kind of scenarios are.
00:32:50
Speaker
And again, it goes back to accountability.
00:32:53
Speaker
And will there be people who will maybe try to be obstacles to block these kinds of actions?
00:32:58
Speaker
Yeah, well, I mean, I think this is when you made reference earlier to the lack
Concerns About Justice and Legal Guardrails
00:33:04
Speaker
of guardrails.
00:33:04
Speaker
This is really one of the big concerns.
00:33:07
Speaker
And it was just a story in Politico about how people who work at the Department of Justice are especially concerned.
00:33:13
Speaker
And many are talking about leaving.
00:33:15
Speaker
Of all people, it was Jeff Sessions and Bill Barr who held Donald Trump back from doing things last time.
00:33:21
Speaker
And, you know, who he picks for attorney general is going to be.
00:33:24
Speaker
very important.
00:33:25
Speaker
It's really, if you think about the Department of Justice and the courts as really the last guardrails in terms of the rule of law, I'm not sure how much we'll be able to depend on both of those to the extent that Trump can reshape those institutions.
00:33:40
Speaker
I think right now, the courts have done a pretty good job in supporting the rule of law.
00:33:46
Speaker
And despite, say, things like
00:33:49
Speaker
conservatives and liberal justices and judges dividing over the scope of the Voting Rights Act.
00:33:54
Speaker
They held the line in 2020 on free and fair elections.
00:33:56
Speaker
And so really, it's going to be a huge test for the legal system, for the Department of Justice, and for the courts, to the extent that Trump is willing to test those existing guardrails.
00:34:09
Speaker
Now,
00:34:11
Speaker
I don't think we know what we're going to see and what the priorities are going to be for the next Trump administration.
00:34:17
Speaker
We also know that there also might be an issue of competence.
00:34:20
Speaker
That is, there might be things that they're trying to do that could be done if done competently, but maybe they won't be done competently.
00:34:28
Speaker
So to take an example from the first Trump administration.
00:34:31
Speaker
the way that the citizenship question was added to the census and then was taken off, it was done in such a ham-fisted poor way that the courts just narrowly blocked it.
00:34:42
Speaker
And so really we don't know what they're going to prioritize and we don't know how well they're going to try to put it into effect.
00:34:48
Speaker
We do know that
00:34:50
Speaker
courts so far have mostly done a good job in serving as a backstop and enforcing the rule of law.
00:34:57
Speaker
And so I just think there are a lot of unknowns.
00:34:59
Speaker
And I think the message I was giving people before the election, when there were concerns about, you know, were we going to have another Bush versus Gore?
00:35:06
Speaker
Was this election going to go into overtime?
00:35:08
Speaker
Really, that was, if it was very close, that's what I thought we would be facing.
00:35:12
Speaker
The message I was giving then is the same message I give now, which is vigilance.
00:35:15
Speaker
We have
00:35:15
Speaker
to watch, we have to see what happens, and use the tools that are available, including our own free speech protected by the First Amendment, including the legal processes to try to assure that the remaining guardrails are actually being used.
00:35:30
Speaker
But we are going into a, you know, kind of a period of unknown because we don't know what those priorities are going to be, and we don't know
00:35:38
Speaker
the extent to which those might be pushed back upon by the legal system.
00:35:43
Speaker
And so that's really one of the things that I'll be watching the most closely in the next few years.
00:35:48
Speaker
So it's both uncertainty, but then coupling that with vigilance.
00:35:53
Speaker
And of course, I agree with you about speech and petition and assembly and sort of needing to double down on those things, but also feeling concerned that when the leader is threatening using the levers of government to punish political opponents, I also worry about the potential chilling effect that that can have.
00:36:10
Speaker
Sure.
00:36:10
Speaker
And I think, you know, how much of a chill, if any, there is, it's going to depend upon what the first six months of this administration actually look like.
00:36:17
Speaker
And that's what I think we'll have to be focused on.
00:36:21
Speaker
And how do different political branches react?
00:36:24
Speaker
Certainly, there's reason to believe if you look, for example, at the United States Senate, some of those who stood up most to Trump on the Republican side
00:36:33
Speaker
John McCain, Mitt Romney, Bob Corker, they're gone.
00:36:38
Speaker
And some of them that have come in to replace some of these departed Republican senators are much more allied with the Trump program.
00:36:48
Speaker
So that's one of the reasons why there are concerns about what guardrails there will be the next time around.
00:36:54
Speaker
But I think
00:36:56
Speaker
We need to wait and see how things actually shape up.
00:36:59
Speaker
And I don't think now is a moment for panic.
00:37:02
Speaker
I think now is a moment for vigilance.
00:37:05
Speaker
And I think we'll sort of wrap up with a question that I ask kind of all of the guests, which is about what you might say to our listeners who are largely people who are higher education professionals and policymakers in terms of what they might do, whether that's individually or as part of their campus communities in this period of uncertainty to continue to protect
Protecting Democratic Practices in Education
00:37:28
Speaker
people.
00:37:28
Speaker
democratic institutions and practices?
00:37:31
Speaker
And I realize it's a big question, but the answer can be something small, perhaps.
00:37:36
Speaker
Well, I mean, I would start with the fact that the courts have held the line.
00:37:40
Speaker
And so people should keep doing what they're doing until there's reason not to.
00:37:45
Speaker
And there's a benefit, at least to people living in California, which is that you have a state government that can maybe serve as a check on potential excesses of a new administration.
00:37:59
Speaker
Again, I don't want to prejudge anything.
00:38:01
Speaker
We don't know what the world's going to look like.
00:38:03
Speaker
We don't know what the priorities are.
00:38:05
Speaker
going to be.
00:38:06
Speaker
But I think that, you know, thinking about how to respect the outcome of the election, which is what I think we are seeing most people accepting the results, even if they're not happy about it in California, where Harris
00:38:22
Speaker
vastly over-polled Trump.
00:38:24
Speaker
This is just like, you know, people who lived in Texas or in Alabama, where, you know, vast majority supported Trump and they got Joe Biden last time.
00:38:33
Speaker
You know, there is something that comes with not always having your preferred candidate win election.
00:38:40
Speaker
That doesn't necessarily mean that the world comes to an end.
00:38:43
Speaker
It means that you
00:38:44
Speaker
regroup and you try to organize for political action for next time.
00:38:49
Speaker
What's different here is the question about those guardrails.
00:38:52
Speaker
And so really, we're going to have to see how those first few months go.
00:38:56
Speaker
And I think that's going to be a big test for the nation.
00:38:59
Speaker
What it means to have a democracy under these
00:39:03
Speaker
very different conditions and very different set of communications technologies and how people view the world and how it is mediated and how it is less mediated through expertise, I think, is part of the big challenge that we face.
00:39:20
Speaker
Well, then we just keep doing what we do and, you know, hoping for a good outcome.
00:39:26
Speaker
And I think, you know, your words and thoughts today really help give kind of a framework for where we are.
00:39:33
Speaker
And even though the path is uncertain, just to kind of hold the line.
00:39:36
Speaker
And so I just want to say thank you so much for joining us.
00:39:40
Speaker
We'll just keep having you back to opine about, you know, where we've been and potentially where we're going.
00:39:46
Speaker
Well, let's hope our next discussion will be a little rosier.
00:39:48
Speaker
Okay.
00:39:49
Speaker
We'll both hope for that.
00:39:50
Speaker
That's a wrap.
00:39:52
Speaker
Thanks again to Professor Hassan for joining us for this conversation.
00:39:56
Speaker
Next month, we're excited to speak with Professor Marianne Franks, whose new book, Fearless Speech, Breaking Free from the First Amendment, is making headlines.
00:40:04
Speaker
Until then, we wish you all a happy Thanksgiving.
00:40:08
Speaker
Talk to you next time.