Election Subversion 9-24-2021 Transcript

Election Subversion: Is American Democracy in Danger?
September 24, 2021
[The following is a transcript of a September 24 event held at the UCI Law Fair Elections
and Free Speech Center, “Election Subversion: Is American Democracy in Danger?” A
video of the event is posted at: https://youtu.be/YGsK0HrIbeM. The biographies of the
speakers appear at: https://www.law.uci.edu/centers/fefs/events/election-subversion-
conference.html. This transcript has been lightly edited for clarity.]
Howard Gillman: Good day, everyone. My name is Howard Gillman, I am the

Chancellor of the University of California Irvine, and it is my great
pleasure and great honor to welcome all of you to this very
important event.
No one doubts that research universities have an obligation to

explore pressing challenges and generate knowledge that
advances the well-being of society. We take this for granted when
we’re faced with something like a global pandemic and our
communities spring into action with patient care, with developing
effective treatments, and mobilizing the basic science and
knowledge that’ll help us better understand and overcome such
threats.
There is little doubt that one of the most important challenges

facing our society at this time is the threat to democracy itself
posed by concerted efforts to subvert our elections. This is why it’s
a matter of great significance that we’ve created a new Fair
Elections and Free Speech Center here at UCI Law, co-directed
by two outstanding faculty members, Rick Hasen and David Kaye.
The Center will be looking at issues of democracy, fair elections,
and free speech, both in the United States and around the world,
and I can’t think of a more important time than now, and two better
suited experts in their respective fields to launch and lead this
urgent and timely Center.
This conference is one of the very first events hosted by the

Center. As will be typical of the activities of the Center, it brings
together a wide range of interdisciplinary experts who can shed
light on these very real threats to democracy from a variety of
perspectives, and it also brings academics into contact with real
world decision makers and leaders.
I have no doubt that the very future of American democracy is at

stake, something that became abundantly clear in the wake of the
2020 Presidential election, the January 6th attack on the Capitol
which was designed to disrupt the certification of that election, and
the subsequent efforts in too many state legislatures to undermine
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Election Subversion: Is American Democracy in Danger? September 24, 2021
the fragile safeguards that allowed, just barely, for a successful

transfer of power. Whether we can hold a successful Presidential
election in 2024, I think, will depend entirely on what we do now
and in the coming months and years.
And so, let me extend my gratitude to all of our guests for sharing
your experience and allowing us to learn from you, and to all of
you for being here so that you can engage with these issues. And
now, it is my distinct pleasure to hand the floor over to one of the
co-directors of the UCI Law Fair Elections and Free Speech
Center, Chancellor’s Professor of Law Rick Hasen. Rick?
Rick Hasen: Thank you so much, Chancellor Gillman. Thank you for the kind
words, for your strong leadership on free speech issues, and for
your unwavering support for our new Center and for our Law
School.
I’m Rick Hasen, Professor of Law, and Co-director with my great

colleague, David Kaye, of the new Fair Elections and Free Speech
Center here at UC Irvine’s School of Law. Established in 2021
after the contentious 2020 U.S. Presidential election, which
culminated in the dangerous January 6th, 2021 insurrection at the
United States Capitol, the Fair Elections and Free Speech Center
at UCI Law is unique among U.S. and global institutions in that it’s
dedicated solely to advancing an understanding of an offering a
means to counter threats to the stability and legitimacy of
democratic governments, exacerbated by the unregulated growth
of digital media and other technological changes in mass
communications.
Today’s event, “Election Subversion: Is American Democracy in

Danger?” would not have been possible without the support of
many at the law school, including our former Dean, Song
Richardson; our current Dean, Bryant Garth; and our staff,
including Colleen Taricani, Rabie Kadri, Erin Hiebert, Anna Iliff,
Josh Larsen, Mary Ann Soden, and Kristine McGuire. Thanks as
well to the Jack W. Peltason Center for the Study of Democracy
for co-sponsoring today’s event.
Why a conference on election subversion? The United States

faces a serious risk that the 2024 Presidential election and other
future U.S. elections will not be conducted fairly and that the
candidates taking office will not reflect the free choices made by
eligible voters under previously announced election rules. Until
recently, it would have been absurd to raise the possibility of
election subversion or a stolen election in the United States. Few
cases have emerged in the last 50 years in the United States of
actual attempted election subversion by election officials, leading
to a loser of an election being declared a winner. Despite other
unique pathologies of American election administration, including
its vast decentralization—we conduct elections, 10,000
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simultaneous elections for President when we hold our elections

every 4 years.
The conduct of former President Donald J. Trump in repeatedly

and falsely claiming that the 2020 election was stolen has
markedly increased the potential for a stolen election in the United
States. Millions of his supporters now believe the false claim of a
stolen election, and some have pursued bogus, sham audits and
taken other steps that undermine voter confidence in the fairness
of the process. Threats of violence and intimidation have led to
unprecedented attrition among election administrators, and some
exiting officials are being replaced by those who may not have
allegiance to the integrity of the process.
Those Republican elected officials who stood up to Trump in 2020

and helped save the United States from a potential Constitutional
and political crisis have been censured, stripped of power, and
challenged for office by those embracing the big lie. Elected
officials, election officials, and others believing or purporting to
believe the false claim that the 2020 Presidential election was
stolen may seek to justify subverting future election results in
response to earlier purported fraud.
This conference asks how big a problem election subversion may

be in the United States and what we can do about it. It will begin
with my conversation with two election officials—one state, one
local; one Republican, one Democrat—on what we experienced in
the 2020 election and what we face going forward.
The second panel will include leading social scientists who have
studied how some democracies have moved towards
authoritarianism and what can be done to prevent that move in the
United States.
The third panel asks what politically may be done in Congress and
in the states to fix these problems, and especially what is feasible,
given the current state of polarization in the United States.
The final panel asks leading legal scholars whether law can make
a difference in protecting fair vote counting in American
democracy.
It’s a packed day, and we’re so glad you’re joining us. A few
ground rules. Given how much we’re packing in, the moderators of
each panel will not take time to read the impressive biographies of
all the speakers. I am just in awe of the brain power that we’ve
assembled here today and if we spent time reading everyone’s
biographies, the entire conference would be over. So, instead, I
direct you to the conference webpage on the Fair Elections and
Free Speech website, law.uci.edu/fefs, and you can find the
biographies of our distinguished speakers.
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Each panel is only 45 minutes, and so, I’ve asked the panelists
not to make opening statements. We’re going to get right into
moderator questions. If you’re watching live on the Zoom, you
may use the Q&A function to pose your questions you would like
the moderator to ask the panelists. We regret that with a
conference of this size, we will not be able to get to all of the
questions.
And with that, let me welcome the panelists for our first panel, who
will be interviewed by me. Brad Raffensperger is Georgia’s
Secretary of State, and Isabel Longoria is Administrator of
Elections in Harris County, Texas. Welcome to you both, thank
you.
Brad Raffensperger: Good morning.
Rick Hasen: So, let me start with looking back at the past. The 2020 election
was, in so many ways, unprecedented. We conducted an election
in the midst of a pandemic, in the midst of financial constraints on
running elections because of the pandemic, and in the midst of an
election where great doubts were cast over the fairness of the
election. And pressure was on election administrators, both state
and local, in probably a way that we have not seen before. It’s
already so difficult to run an election—it’s a huge undertaking, but
2020 has got to have been unique.
And I want to ask each of you, starting with Secretary

Raffensperger, if you could just reflect on what it was like to be
involved in running elections under this kind of pressure and if you
felt that your ability to run a fair election was undermined by all of
these external pressures that you were facing. Secretary?
Brad Raffensperger: Well, good morning. Well, last year, every day going up to January
5th when we finished our runoff election, we were fighting election
misinformation and disinformation. But through it all, even when
we received threats—my family received threats and we received
political attacks from people from all over the country, the decision
was easy, because I leaned into my integrity. I knew that we had
to follow the law, follow the State Constitution, and that’s what we
did.
There were a lot of people, obviously the President in particular,

who did whatever they could to overturn or undermine the integrity
of Georgia’s elections in November, okay? Senator Lindsey
Graham, he called me in November and asked me questions that I
felt were inappropriate, that if you went down that path of
reasoning, it could actually lead to throwing out thousands of
legitimately cast absentee ballots.
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As everyone knows, the President called and asked me to find

12,000 votes to overturn the results. There weren’t 12,000 votes
to find, because we had counted those ballots three times, we had
gone through every single process, and we knew that our
numbers were correct.
Really, what happened is, after the June primaries, it was in the
middle of the pandemic, we did have some long lines, and then
people started talking, the Democrats and major media outlets
were starting to talk about how Republicans were going to try and
steal the election. We made sure that we stood up any potential
areas, we had an Absentee Ballot Fraud Task Force, we wanted
to make sure that everyone understood that we had a secure
election.
And so, Georgia has been under this attack. Many people don’t
want to talk about this if they're from the other side of the aisle, but
when Stacey Abrams ran in 2018, she said she lost due to voter
suppression, that the machine had flipped votes. And in fact, she
actually had a lawsuit against the Lieutenant Governor’s race and
said there were lost votes. Rolling into 2020, then we had the
other side, which was voter fraud. They're really the same side of
that coin, which destroys voter confidence. And that’s what we
need to restore is vote confidence in the process.
We have to understand that we run elections, we have 159

counties, we have a lot of counties, second to Texas, but our
County Election Directors, they run the elections, they run them
with integrity and hard work. And so, we made sure that we
leaned into the law at all times.
Rick Hasen: If I could just follow up with you before I turn to Administrator
Longoria, you and your family faced some threats of violence,
both during the election counting period and afterwards. Could
you just recount a little bit of what you’ve faced, just so we can all
understand kind of what the atmosphere is like out there right
now?
Brad Raffensperger: Well, when President Trump said I was an enemy of the people,
then all of a sudden, we were getting texts all over the place. My
personal cell phone was doxxed and it was out there, so it was—
my phone was blowing up with verbal abuse and verbal, you
know, I guess you’d call them threats. And then obviously, when
that filled up, then I started getting just text messages, my wife
started getting sexualized texts. And then my daughter-in-law’s
house was—you know, someone came into the house, moved
things around, and it just got to be a very dangerous and chaotic
situation, ended up with Georgia State Patrol as a security detail.
And we also had not just us, much as that was shocking,
particularly from my daughter-in-law, but we also had election
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people, we had in one county, Bartow County went 75 percent for

President Trump, and the poll workers were followed home by
people and were threatened. And it just, that’s the kind of stuff that
was going on, and no one should ever be threatened, a poll
worker particularly. Many of those are volunteer positions, they're
doing this out of their civic responsibility, and we need to make
sure, coming into 2022, that we have safe, secure elections and
people aren’t threatened with their lives.
Rick Hasen: Administrator Longoria, can you talk about your experiences as—
and just so that everyone who’s watching can be clear, Secretary
Raffensperger is the Secretary of State for the state of Georgia.
Most of the nitty-gritty of running elections is happening at the
local level and you’re a local Election Administrator in one of
Texas’ largest counties, Harris County.
Isabel Longoria: Correct, yeah, Harris County, which encompasses Houston,

Texas, and the metro area, and is the third largest county in the
United States. And, on top of a pandemic, on top of this, really,
just conspiracy theories abound even before we started voting on
elections, we, too, were going through a change in that we used to
be run by a county clerk for elections and voter registration under
the tax office, and it was at that time that the Commissioner’s
Court voted to think about creating the Elections Administration
Office.
So, I, in my capacity in November, was there as a Senior Advisor

working on mail ballots, our drive-thru innovations, our 24-hour
innovations and getting even more into the nitty-gritty. And so,
what I experienced at the level of carrying out the elections is
similar to what Secretary Raffensperger was mentioning is just
this complete escalation in tension that had never been there
before. Where every move, from how we were setting up a phone
line for voters to report any issues that they saw at the poll, that
that was assumed to be partisan. That because, by definition of
having our office do it, that even though we were trying to collect
any reports to investigate those reports with our County Attorney
and officers where appropriate, in going out and holding people
accountable regardless of their party—just the mere assumption
that we were trying to do our job was under question.
We were able to breed those innovations and even during this

time of extreme kind of chaos, right, and conspiracy, we were able
to offer drive-thru voting to keep folks safe, a method of voting that
started because of the pandemic and then we found actually
supported black, Hispanic, and Asian voters. Women were more
likely to use drive-thru voting versus other forms of in-person early
voting. Same with 24-hour voting—we saw that, from 7 p.m. to 7
a.m., the most likely cohort of users of that voting were young,
Millennial Latinos who were coming off of different shifts, as well
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as medical workers who didn’t want to expose people in the

public, right, potentially to this deadly pandemic.
And so, for us, we had two tracks—one, incredibly proud to offer
these innovations, to work through them, to make sure that they
were held and executed to the same integrity and standards of all
our voting methods, and then fighting time and time again these
conspiracy theories, you know? “Why do you have a signature
verification committee?” Because the law dictates that we have
one. [Laughter] You know, “Why are you doing these audits? Why
do you have chains of custody? Who’s creating or manufacturing
the label that you put on the machine?” I mean, down to the level
of, you know, “Who’s creating the plastic seal that you put on the
machine, and are you sure that they aren’t in the supply chain
manufacturing these, that they fall off of boxes?”
I mean, it wasn’t just about the results, and that’s what I want to
get at. Campaigns, elections—there’s always a loser, the loser’s
always upset, there’s always going to be a question of, “Did I
really win?” et cetera. But the difference is that it’s now getting into
how we conduct the elections, who is conducting the elections?
And these conspiracy theories that you can only cook up in
movies about the level that people will go through when what we
really know is that, other than human error from judges here and
there, no one is mounting some big conspiracy theory to sway an
election other than campaigns who campaign to bias people in
order to vote for them.
But that’s it. There is no large fraud, there’s no Russia, there’s no

China coming in with special ninjas to break into our machines. It
is just our undoing and our own conspiracy theories, and I think a
long time trend that we’ve seen, too, that government is to be
suspected for everything going on instead of seeing us as we truly
are—and I’m an elections nerd—a public servant who can think of
nothing greater in the world than to support free and fair elections
through democracy.
Rick Hasen: Let me stick with you and move from the past to the future. Do you
see this moment in time and the kind of undermining that Donald
Trump engaged in of the integrity of the election as a one-off,
something that’s going to pass, or do you see things getting
progressively worse as we look forward to 2022 and 2024?
Isabel Longoria: I think it’ll get—it’s interesting. Two things. One, hanging chads,
right? Again, there’s always been questions on elections. There’s
always been questions on results. That is completely natural. And
what I want to shift is, you know, in the hanging chad era, it’s
always, we know there’s human error, we want to double-check
the results, we want to double-check the counts, we want to
double-check, especially before the time, really, of electronic
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machines, that the counts truly came out as the counts were
supposed to come out. Completely fair question for accountability.
And now what we’re seeing is, again, you know, even before
voting, we had poll watchers, we had attorneys from the
Republican Party and Trump campaigns coming and asking us
who’s working, what are they working on, questioning our integrity
before there was even a problem to question. And I think that will
continue.
Interestingly enough, the December runoff elections, the direct

offshoot of those November elections—not a peep. I hadn’t heard
a word from a single person, not a single poll watcher questioning
the same, exact methods and the same, exact voting. Same for
the May elections, our local elections. We had—we actually
doubled our turnout to 7.4 percent. Historic doubling of turnout in
local elections through encouraging mail ballots, by sending out
mail ballot applications, by doing drive-thru voting, by doing 24-
hour voting, by opening access—not a single peep, from a single
poll watchers from those same campaigns. Not a single word, I
can barely get the press to cover it so that voters know to come
out, and yet we’re still talking about last November. I have an
election this November, and we’re still talking about last
November. We have primaries in March and we’re still talking
about last November.
So, I don't know that these conspiracy theories will still be applied
to future elections. I think that, at some point, we’re going to spin
out and tire out and the fuel will be lost on talking about last
November. And all those who believe in conspiracy theories will
continue to believe them, but only about last November. And my
question is—if you really think elections are being conducted
inappropriately, you would think that they're being conducted
inappropriately for every election, but apparently, it only matters
for the November, 2020 Presidential.
Rick Hasen: Secretary Raffensperger, turning the same question to you—do

you see, how do you see 2020 in relation to the future, in terms of
where things are going?
Brad Raffensperger: I think that January 6th was probably a hinge point. I think when
we saw the video of what happened up in the Capitol, I think in
many respects, that was almost when we saw what happened on
09/11. That was a hinge point in our history, also.
And I think that many people, after looking at January 6th, said,
“This has gone too far.” And so, you have a strong pullback and
people understand that we need to make sure that we have fair
and honest elections, that everyone knows what the rules are, but
also, at the end of the day, we have to move on from the election
and we can’t be questioning results all the time.
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You know, our place to really decide who the next elected official
will be is prior to that election. When people show up, the election
officials are doing their job, they just want to do their job, put their
head down, and make sure that they tabulate everything, they
have a process, it’s a very detailed process. And as was just said,
people weren’t questioning the process before, but there was a
huge misinformation, disinformation campaign which really
destabilized many segments of American society.
I think the challenge that we have as Republicans is that right now

our party is really fractured, that many people are looking in the
past. And a lot of other folks are looking at the future, and that’s
not helpful for us. The other side is probably laughing with glee as
we fight amongst ourselves and have this Hatfield/McCoy
struggle.
So, I think we need to look forward. I think that we need to really

restore character at all levels, I think that’s very important, and I
think we also need to restore more courage of elected officials. I
think if they stand up and say, “No, that was a fair and honest
election, and I’m sorry that our side lost, but we need to figure out
how we can build a coalition that we can win the next one.”
Rick Hasen: I want to stick with you and ask you just in the context, you’re an
elected official and I think over 30 states have their Secretaries of
State elected in a partisan office. You’re going to have to run in a
primary. One of the people you’re running against in a primary is
Jody Hice, who’s a Congressman who has endorsed Trump’s
false claims that the election was stolen.
How do you win a Republican primary? It seems like you have to

tack to the right in order to win that primary. And I can’t tell you
how many angry e-mails I’ve received for including you on a panel
on election integrity, despite the fact that you heroically stood up
to Trump, you know, is maybe the most famous incident in the
2020 election. Because people have said that you have embraced
subversion itself by endorsing the SB 202, the Georgia law that is
going to make it easier to have takeovers of Democratic counties
like Fulton County.
And so, how do we understand kind of the pressures you’re under

and how do we know when, for example, someone is acting out of
a desire to deal with election incompetence versus trying to get
partisan gain when all of our elections for Secretary of State are
partisan to begin with?
Brad Raffensperger: Well, there was a lot of questions packed into that little segment,
there. But first off, Senate Bill 202, which is our election reform
measure of 2021, we’ve actually increased the number of days of
early voting, mandated that all 159 counties will have 17 days—3
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weeks plus two Saturdays—of early voting. And any county that
wants to can have Sunday voting, which is two additional days—
that’s 19 days; I’ll stack that up against New York, New Jersey,
Delaware, or a lot of other states. So, we really stand on the
forefront of that.
What we also did is, we moved away from signature match. And
what people need to understand is that we’ve been sued by both
the Democrat Party and the Republican Party on signature match.
They said it was subjective. And yes it is, but when I ran in 2018, I
said, “We need to move away from signature match and move to
photo ID using a driver’s license.” That’s what they’ve been using
in Minnesota for over 10 years. So, if Minnesota’s been using it for
10 years and we’re going to use it, Texas is going to be using it,
more states are going that way. It’s a red state/blue state, it’s a
nonpartisan way of doing your identification of your absentee
ballot holders.
The one thing that we did is, we do have an accountability

measure, finally, for the first time, that if you have a county that
can’t run an election—and in Fulton County, we have reports
going all the way back to the 1990s that have all this
mismanagement and dysfunction. And so, if they can’t run an
election properly, then the state election board can come
alongside them. They can replace it, and that would be a strong
measure, but the all could say, “What is your program that you’re
actually going to improve this, finally, for the people of Fulton
County?” Because Fulton County represents 10 percent of the
people, it really impacts the entire state. Everyone is tired of
Fulton County’s mismanagement and dysfunction. And so, there’s
an accountability measure, but it will be used thoughtfully with the
rule of law, with due process. They’ll have a review panel that
consists of one Democrat, one Republican, and our General
Counsel.
So, the State Election Board doesn’t want to take over the county,
but they do want things to be improved. So, I think it’s a very
balanced, measured approach, and I believe that people should
understand that’s what we want in Georgia is balanced,
measured, we want to be thoughtful, we want to make sure that
we count every legal vote.
So, that, I think, answers most of your questions there, but if I

missed one, shoot it back at me and I’ll—
Rick Hasen: Well let me just push you a little more on this running as a
Republican in a primary against someone who’s claiming that—
and if you looked at the polling, if not a majority, at least close to a
majority of Republicans believe the false statement that the 2020
election was stolen. And so, I just saw a column calling you the
underdog, which is unusual for—it’s unusual or a Secretary of
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State’s race to get any coverage nationally, but calling you the
underdog in this race against someone who is embracing the lies.
So, how do you run an election like that without having to embrace
the same kinds of claims that were being made by Trump?
Brad Raffensperger: Well, it’s very interesting that the Congressman that I’m running
against, he certified his own race with those same ballots, and yet
somehow, he did not certify the President’s race. And that’s a
double-minded person, and as a pastor, he should know better
than that.
But I’m going to stand on the truth. I understand that eventually it

all will come out in the wash, it already has. There’s a report that’s
coming out in Maricopa County that says that, if anything, Joe
Biden actually got more votes than Donald Trump in Maricopa
County, after all the months that they’ve spent on that. But even
when you hit people right across the side of the head or the front
of the nose, they don’t want to believe the truth, and that is that
President Trump did not carry the state of Georgia.
As a Republican, I was disappointed, but those are the facts. A

person of integrity expects to be believed, and when they're not,
they let time prove them right.
Rick Hasen: Turning back to you, Administrator Longoria, you’re in a kind of

different position, you’re a Democratic elected official in a blue city
in a red state. And one of the main things that the recent Texas
law that was passed to deal with elections did is strip you of your
power to do things like run 24-hour drive-thru voting.
Can you talk about your ability to run a fair election when it seems
like the state is taking steps that are interfering with how you
would normally run an election to increase enfranchisement? And
also, just breaking news from last night, right after Donald Trump
said that there should be a, quote, forensic audit, whatever that
means, of elections in Texas, it was announced by someone,
since your state doesn’t have a Secretary of State right now, that
Harris County is one of four counties—I believe they're all
Democratic counties—that are going to be subject to this audit.
So, can you kind of give us the picture in Texas and how you think
that that potentially affects election integrity?
Isabel Longoria: So, I’ll be remiss, I’ll make one distinction, Professor—an
Elections Administrator is a nonpartisan by law position. So, I can’t
make any endorsements, I can’t donate to any campaigns. So,
whatever my personal beliefs might be, I execute the office in a
nonpartisan manner. So, just, the County Attorney would be mad
if I didn’t make that distinction.
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You know, innovation is a way of thinking. It’s a belief in a system,

it’s a belief in improving the system. Famously, one of the new
mottos of our office, since the Elections Administration Office, I
was appointed in this position November 18th, so, just after the
November, 2020. We’re creating a completely new office that
combines functions that the whole point is innovating, the whole
point is to make it more efficient, make it more transparent and
accountable, et cetera.
That way of thinking, of innovating, of jumping through hoops of

voters don’t have to is not going anywhere. It’s sad that the Texas
legislature, that is dominated by one party, could never give me a
reason as to why drive-thru voting was bad for the November
election. Again, we hosted it in five elections, and no one had a
question until the November Presidential. Famously, I would go
testify in front of the legislature, and even the authors of the bill did
not know that we continued to use drive-thru voting for multiple
elections, not just November. Same with the expanded hours,
same with sending out mail ballot applications. I, as an official,
have the duty to let people know, to educate voters on their rights
and eligibilities for voting, including mail ballot voting.
So, now, moving forward, you know, we have engaged in this

lawsuit, I can tell people about early voting, about curbside voting,
I can tell people about their rights in registering to vote—but I
magically am not allowed, now, to talk about mail ballot voting,
and I’m not allowed to send you a letter with a blank application I
you are a senior. And when you turn 65, you don’t turn less than
65 tomorrow. And so, it’s this really odd carving out that is oddly
specific, again, to the Interim County Clerk, Chris Hollins and what
his innovation started and that we continue in this office.
Listen, they knocked down three things that voters love. I think the
voters are going to be really upset come next December, we’ll still
have them for this November for the primaries, for the
Gubernatorial elections coming up, that they don’t have those
methods of voting that made it easy, fair, and accessible. But
we’ve got other things up our sleeve. There’s other ways to
promote access.
And so, the idea that—it’s almost like playing, what’s it, the smash
the gopher with a hammer, right? Okay, so you stopped drive-thru
voting—incredibly popular and accessible way of voting. We have
other things that we’re working on. We’re working on voter
registration, we’re working on making mail ballots easier to use for
voters.
One of the things, since you’re an election nerd, that I’m proudest
of in our innovations that has not gotten stopped—hopefully, I
won’t get stopped by speaking of it today—is that on our mail
ballots, we used to have, basically, a 13 to 15 percent rejection
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rate average because people would put the wrong envelope. So,
you put your carrier envelope and your mailer envelope, you
would sign it incorrectly, because it was all three white envelopes
that differed only be a fourth of an inch with small black text. One
of the innovations I worked on last July was adding colored
barcodes—blue, green, purple. You put your mail ballot in the
green, you seal it, put that in the purple, sign the purple envelope,
put that in the blue envelope, send it back to us. Our rejection rate
and our calls for, “How do I fill out my mail ballot application?”
went down to fractions of 1 percent. That is a 10 percent
difference. We were able to accept, and because of improvements
in our signature verification process, we took on a cure process for
voters that, with SB 1, the state is now mandating for the rest of
the state. They don’t give Harris County credit for that, that’s okay.
We moved our rejection rate to 0.3 percent—0.3 percent, as we
increased the use of mail ballot voting.
So, you want to get rid of the big, flashy stuff, that’s fine, but I’m
an election nerd who’s in it to take care of the details as much as
the big, flashy stuff. So, I guess, in summation—come and take it,
because I’ve got a lot more where that came from.
Rick Hasen: Let me stick with you and move away from the minutiae and to the
kind of 30,000 foot level. I love minutiae, you know, or I wouldn’t
be an election law person, but 30,000 foot level—if we’re trying to
protect the integrity of American elections so that the results that
are announced are that of a free and fair election without
intimidation, without interference, how do you think power should
be divided across the local, state, and federal level? Whose job is
it—or is it everyone’s job and how—to assure election integrity? I’ll
ask you first and then I’ll ask the same question to Secretary
Raffensperger.
We have this super divided, weird system, right? So, most other
advanced democracies, when you hold an election, a national
election, it’s conducted by a national body. But we don’t do that
here, so, we have new challenges about diffusion of authority. So,
do you have some views on that bigger question?
Isabel Longoria: It’s good to have checks and balances in a democracy, right? You
know, at the local, we have the check of the state, the state has
the check of the federal, the legislature has the check of the
Judicial ad the Executive, there’s good checks and balances.
I struggle with this question. I know you pitched it to us because

even if we had one federal organizing entity and they were in
charge of hosting all elections, you would still, by definition of
having such a large country, have to divide it into smaller regions,
right, that are executed at a local level by different people. So,
even though the rules might be the same, you still have to depend
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on the integrity of any one individual. And I think that’s what

makes this a difficult question.
So, I think Secretary Raffensperger might join me in that we have

to promote ourselves, get to know who your election officials are.
Not just us—get to know them in the smallest counties, and make
sure that you believe in their integrity that the people voted in, that
ethics and integrity is one of the main questions you ask, not just,
to your point, the nerds who like to get into the minutiae. And it’s
that question, again, of not just returning the concept of ethics and
integrity to public service in elections, but can you trust that us, as
election officials, as public servants, are here to perform the duties
on behalf of you all as the public and as the voters?
So, it’s a tough question. Yes, you could have equal laws. You
know, famously, I’ve gone on record for petitioning for that, that I
think Texas has gone way in one direction, way in one extreme
direction, and we do need intervention now at the federal level to
say, “We get you get a checks and balance, but you have gone
way outside the metes and bounds of what is average, even for
the rest of the country.” And so, I do believe in checks and
balances. Does it always go my way? No, but I respect that we
need checks and balances throughout the system.
Rick Hasen: Secretary Raffensperger, same question to you about the proper
mix of local, state, and federal rules for running elections and
assuring that the results are fair and accurate and that we can
hold a fair election?
Brad Raffensperger: Well, people need to understand that America’s system is unique,
and it’s really been—it’s worked well over the years. It’s very
diffused, and that’s a good thing. When it’s all centralized, then
you really need to be even more concerned about if you had an
issue with hacking from some foreign actor. But because it’s
pushed out of Georgia and our 159 counties, Texas probably has
200 plus counties, but all the other states, it’s a very diffuse
process done really, sometimes, at the township level or the
county level in Georgia; it’s 159 separate elections. In the
Constitution, it was very clear about that.
But here’s what people need to understand also about the rest of
the world, the Western democracies. When they have, in a
national election for their, quote, Prime Minister or their President,
then you’re just voting for that one office. Take a look at our ballot
in Georgia—you have the President, then you have, obviously,
some U.S. Senators, some Congressmen, and it goes all the way
down to your County Commissioners that will be on the ballot,
your local County Sheriffs, the Water and Sewer Board. All
those—you have probably 20 different races on that single ballot.
And so, it really is more of a local election, and then we just
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through the Presidential race every four years kind of on the top.
And that’s what really makes the most sense, that it’s done locally.
In fact, what we’d like to see from the feds, we’d like to see them
work in a bipartisan nature. So, some of the biggest impediments
we have is really being able to update our voter rolls during the
election year. And that goes back to the 1993 National Voting
Rights Act of ’93 that was signed into law that, during an election
year like 2020, we in effect were blocked out from updating our
voter rolls because 90 days before an election, we can’t update
our voter rolls.
So, I think the present system that we have works. I think at the
end of the day, our probably, really, has to get down to the
integrity of the people running for office, because I know that our
election officials have personal integrity, and I know will continue
to fight hard to have fair and honest elections in Georgia.
Rick Hasen: I want to follow up with that point, because both you and
Administrator Longoria mentioned integrity, right? So, you know, I
think, what rules can we put in place, you know? What laws can
we pass to assure election integrity, but so much of what assured
that we had a fair election in 2020 was that we had people of
integrity running the election.
And now, we’re facing a situation where, because of the difficult

conditions, including threats, we’re having this attrition of election
officials. So, starting with you, Secretary Raffensperger, what can
we do to assure that we continue to have people of integrity
wanting to work in elections? It’s kind of a thankless job right now,
and in some places, it could be a scary job. So, what is the
solution to the problem of losing local even poll workers to those
who might not have the integrity of the system in their heart when
they're running these elections?
Brad Raffensperger: Well, I know our County Election Officials, and they worked
tirelessly last year to have this election during a pandemic. In fact,
they felt that they ran a really good, solid, super election, and then
we had what happened and they felt really beat up.
And so, my mission for the next four years is to make sure we can
restore election confidence. Voters need to have confidence in
their local officials. They need to understand that the person that
is the poll worker, when they show up to vote, that’s probably
someone that they met them when their kids are out there on the
soccer field, they met them at Kiwanis, they met them at Rotary,
maybe perhaps at church or some other organization, PTA. That
these are your neighbors that are volunteering to be your poll
workers, and people trust their friends and neighbors, and so
that’s who’s really running these elections. It bubbles up to your
County Election Official. Those are people in your community.
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This is not done, something in Washington, D.C., 2,000 miles

away, this is done at the county level. And so, you really should
feel comfortable about that.
But if your people do something that doesn’t meet those high

standards, then we need to move them out. We need to make
sure that when you take that oath, you do not bring your political
leanings, left or right, that you’re going to do your job, look down
that straight line. You know, that’s really important is when you
walk the line of integrity, we can trust the election. So, my mission
will be to restore voter confidence in the election process.
Rick Hasen: Turning to you, Administrator Longoria—what do you think, how

do you assure that people with integrity run American elections?
Isabel Longoria: Again, you know, whether it be elected or appointed, find out who
your Election Official is. Find out if you like them, if you like what
they're doing, meet with them, et cetera. But an excellent point by
Secretary Raffensperger is, it’s all run by people—essentially paid
volunteers, not technically volunteers, right? But we had about
11,000 people in Harris County run—be it election workers or
election judges for the November election.
I am actually pretty ruthless of going through, since I’ve been

appointed of going through our election judges specific ally and
saying, “I get old Miss Betty has been there for 30 years and she
used to be the primary teacher at whatever school and everyone
loves her, but Miss Betty has been filling out her forms incorrectly,
has been creating errors that we have to catch when we do our
second and third checks, and maybe it’s time for Miss Betty to
move on.” And so, it’s having us, not only the courage to stand up,
again, at the national level where it’s big and sexy, but have us
stand up even to our local precinct judges and presiding judges
and say, you know, “I know we might be of similar political
affiliations or opposite, but if you’re not carrying out the elections,
you gotta go.”
Same with our staff, right, holding ourselves to the accountability

of—one of my famous, now, sayings in the office is, “We find
problems to fix them, not hide them.” And we need to be honest
about those small things that come up and be honest with people
about the small things that come up and how we fix them so that
when bigger things come up, they trust that we have kind of built
that trust over time instead of saying, “Nothing to see here,
everything’s fine. There’s zero errors, there’s zero mistakes,
there’s zero anything.” That doesn’t breed trust, that just breeds
more questions.
So, there’s nothing we can do legislatively to mandate someone’s

ethics, but there are things we can do in accountability in how we
host the elections every single day at the local level to make sure
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that we are taking the stands we need to make sure that who we
select around those elections is beyond impeachment, and if we
need to remove them, we remove them.
Rick Hasen: I want to turn to some questions that have been submitted, but
before I do that, just a quick follow up on this to ask each of you if
you support the aspect of proposed federal legislation and the
Freedom to Vote Act that would give federal courts the ability to
protect elections by assuring that election results are legitimate—
basically, create a federal cause of action, turn any election
contest potentially into a federal lawsuit.
Good idea, bad idea? Starting with you, Administrator Longoria?
Isabel Longoria: It’s one of those that if I certify it at the local level, I’ve gotta stand
by the results of those elections. If something were to trip all the
way to the federal level, then so be it. You know, my elections are
certified and I stand by them at the local level and whatever
accountability there is higher up, I stand by that accountability.
Rick Hasen: Secretary Raffensperger?
Brad Raffensperger: Our county’s run the elections, they certify at the county level, we
certify at the state level, and I’d be concerned about, really,
federal oversight. It starts in many small ways, but eventually,
though, there’d be just, I’d believe, I’d be concerned about
additional rules and regulations they put into place.
I think what we have right now works. The challenge that we have
is that we’ve been fighting this election misinformation and
disinformation, and I think this season will soon pass. As the truth
comes out and people realize that the election results were
accurate and fairly cast.
Rick Hasen: So, you’re optimistic that the problem of disinformation is going to
decrease? Because I’m quite pessimistic about that going forward.
I feel like you look at what’s happened with, say, the response to
COVID and you see that disinformation just seems to be a major
problem that’s exacerbated by its spread on social media. And,
you know, of course, we had lots of disinformation about the
election, as you mentioned. Why are you optimistic that the truth
will come out?
Brad Raffensperger: I think that the American people are good people. I think that the
American people are aspirational people, and I understand that
we are living in polarized times, and that’s when we brought in our
new voting machines with a verifiable paper ballot. I said I
understand that half the people will be happy and the other half
will be sad, but when 100 percent of the people have confidence
in the results, then at some point, you have to just accept the
results and move on and to figure out, how do I build a bigger
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coalition for my side? How did Ronald Reagan build that huge
coalition that then we ended up with both Bush Presidencies
coming out of that? The Democrats can think about their
philosophy. I don’t care, I’m looking at my side of the aisle as a,
when I look and take off my SoS hat and I put on my Republican
hat.
So, we have to build a bigger coalition, we have to be happy

warriors with a positive, uplifting message that broadens our base.
When we do that, we’ll do just fine. But it has to be backed on
integrity.
Rick Hasen: Alright, we have a little under 10 minutes left, and I wanted to turn
to some questions. Let me start with you, Administrator Longoria.
There’s a question about risk-limiting audits. What are they, and
do you think it’s a good idea to mandate them everywhere?
Isabel Longoria: They’ve been mandating in Texas and here in Harris County, we
have joined the voluntary pilot to be one of the first counties doing
those risk-limiting audits.
It is a little redundant. We do risk-limiting audits not kind of in that

technical definition in the post, but we do logic and accuracy
testing three tests before. We do pre-logic and accuracy and pre-
pre-logic and accuracy to make sure that what we’re coming up
with is true. We do partial manual counts dictated for every single
election afterwards. We have our staff checking all reports that
come back from election sites to make sure that judges didn’t
transpose numbers or whatever it may be.
So, you want to add a risk-limiting audit which says, post-election,

you go through and select a sample, essentially, of machines and
mail ballots to count by hand a representative sample? We
already do that, we’re happy to do it again if that’s what gives
people kind of comfort.
So, it’s not that we’d have to do another process, it’s, can we all
agree, then, if it’s risk-limiting audit, whatever we want to call it, do
you agree, then, that if that comes out and says we did our job,
that we did our job? But if it’s going to be, “No matter what you do,
I’m always going to think it’s wrong,” you know, those people, I’m
never going to be able to please, no matter what functions we take
on.
Rick Hasen: I have to say that I think that, turning to Secretary Raffensperger,
that the hand count of all of the Presidential ballots was probably
one of the most important things that you did to assure at least
most people that the election was fairly counted in Georgia. And
yet, just a few years ago, there were parts of Georgia and there’s
still, I think, parts of Texas that have machines that are completely
electronic, where there is no piece of paper.
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And I wonder if, Secretary Raffensperger, if you think that those

machines should be illegal, that there should be a requirement
that there’s paper in order to—whether it’s a BMD machine like
you have in Georgia where it’s an electronic machine that prints
out ballot or it’s hand marked paper ballots, which some people
think is kind of the gold standard in terms of assuring the integrity
of the counting process?
Brad Raffensperger: Well, when we passed our bill a few years ago, House Bill 316, it
gave us the verifiable paper ballot. And that turned out to be a
tremendous godsend, because now, we actually had something to
recount. Before, it would’ve been, like you said, press the button
electronically and you would’ve gotten the same result.
And instead of doing a 90 percent risk-limit audit, which would’ve

been counting 2.5 million ballots, I raised it to count all 5,000,000,
and I said, “And we’re going to go one step further. We’re going to
count ‘em by hand instead of running them through the machines.”
And the reason I did that is because they were saying that the
machines were flipping votes. And so, we did a hand recount.
That verified that the machines were not flipping votes. It also
verified the total count, and I think that was very important.
I also could’ve chosen any statewide race. I chose the President’s

race because, obviously, it was the most important. I’ve asked,
and I will be asking the General Assembly coming into the 2022
session that we’d like to have mandated by law additional risk-
limiting audits for other races just so that we could get a better
check to help build that, restore that voter confidence for other
races, not just the folks at the top of the ticket, but also the State
Representative and State Senate seat. We think that would really
help people understand that we are checking all the numbers,
checking the county’s work via risk-limiting.
It’s a great way to build confidence. We have several County

Election Directors that are already doing something like that above
and beyond what’s required by state law, and I think that’s
tremendous.
Rick Hasen: Sticking with you, as I’m looking through the questions, the vast
majority of the questions that have been submitted so far relate
specifically to Fulton County. And so, I already asked you about
this, but let me just go back for a minute to this. This new state
law, SB 202, allows—which I think you’re no longer on the board
that makes the decisions, but allows the election board to
investigate and consider a takeover of local counties in the event
that they're engaged in incompetence in election administration.
You’ve already said that you think that Fulton County has a history
of incompetence, but there are a lot of Democrats and a lot of
Page 19 of 66
election integrity advocates who think that you’re doing this for
political reasons. How do you assure people that when, say, a
Republican Secretary of State wants to have a potential state
takeover of the largest Democratic county, that you’re not doing
this for political reasons, either to help you win an election or to
manipulate the results in a local county?
Brad Raffensperger: Well, the Secretary of State’s Office does not have the authority to
begin that review, and the review is done by a bipartisan panel, it
has one Republican and one Democrat board member on the
election board of other counties, coming together with our general
counsel. They’ll do a deep dive interview and get information.
What exactly is your remedial action plan to improve the Fulton
County elections? Do a deep dive on that, and then they’ll come
back and report to the State Election Board and then they’ll
consider—are these actions sufficient for us to feel that they can
continue on? They recognize that it’s critical that they finally fix
what they’ve been doing and fix all that mismanagement. But if
they say, “This is a deficient plan, you’re just going to get more of
the same,” then they may make another decision.
But that is the State Election Board, and I don’t chair that any
more. It is the attempt to make sure that it doesn’t appear to be
bipartisan one way or the other, but you have to have
accountability in there. If you find people aren’t doing their job right
and you can’t hold them accountable, then you'll still get the same
thing that you’ve always been getting. And in Fulton County, this
has been going on for at least 30 years now, and it’s time that
someone holds them to a measure.
We passed another accountability measure that says lines have to

be shorter than one hour. Well, in the fall election, lines were
shorter than one hour, but now there’s an accountability measure
that if lines go over one hour, you'll have to bust a precinct in half,
or you'll have to go ahead and add additional machines in the next
election cycle. I think that’s a good thing. Voters want to make
sure that there’s accountability, that there’s a process that
elections are really a pleasing customer experience, just like when
you drive to your favorite chicken sandwich place that has that
drive-thru that you just have, it’s a great experience, it doesn’t take
an hour to do that. You also want to know that when you place
your order for your fast food restaurant, the order is accurate. It’s
very similar. It’s just like you have in the private sector—you want
to know that your results are accurate and you can trust it. And so,
building in accountability is a good thing.
Rick Hasen: Alright, well, we’re almost out of time, so I’m going to end by
asking each of you, starting with Administrator Longoria, if you
were the elections czar and you could make one or two changes
that you think would help assure election integrity in the United
Page 20 of 66
States—I know, it’s a surprise trick end question—what would you

do?
Isabel Longoria: Exactly what I plan to do in my five-year plan being here is open
up the process so that citizen groups can come in, learn
everything about logic and accuracy testing and Signature
Verification Committee and how we program our machines and
essentially bring sunlight into the process, right? But if you have
questions, be prepared to learn the minutiae, as you said,
Professor, and really understand. But if you’re speculating from
the outside, if you’re being a backseat quarterback, you’re never
going to be able to delve in and truly believe us.
So, if I’m czar, I open it up to citizen kind of cohorts like leadership

classes, et cetera, to get people more involved in the process.
Rick Hasen: If I could just quickly follow up before I turn to give Secretary
Raffensperger the last word—some have argued that too much
transparency is actually a bad thing, because it allows for people
to start asking these really arcane questions that lead you down
the path of conspiracy theories and not truth. Like, you were
talking about the plastic band that’s keeping things closed on the
election machines. Do you think too much transparency can be a
bad thing?
Isabel Longoria: I’ll always stand on the side of, again, transparency and ethics is
not just about our actions, but the perception of our actions as
well. And so, if I can bring more people in, if I can show them the
process, if I can answer their questions—and to your point, if
you’re a conspiracy theorist who’s just there to break own every
step of the process, then you’re not coming in with an open mind.
But I think the vast majority of folks I talk to, when I get a chance
to sit down with them to explain to them, to answer their
questions, they feel more comforted by the fact that someone is
willing to open the doors and shed light and answer the questions
that they hear thrown about in the media and others. So, I’m
always going to err that more information is good and, quite
frankly, if we didn’t believe that, we wouldn’t believe in education.
Rick Hasen: Secretary Raffensperger, last word to you—if you were elections
czar, what one or two changes would you make to best assure
election integrity?
Brad Raffensperger: I think that we need to make sure that our counties have the
resources to do their job well. And so that, typically, over the
years, the counties have not had the resources to make sure that
they had poll workers and poll worker training, so I think that’s
very important.
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I also think it’s tremendous that we’re now going to make sure that
monitors of both political parties when they're there, they can have
resources like going through poll worker training to understand the
process. So, when they are looking at what’s happening, that they
can have, then, the confidence and the knowledge that they're
following the process. I think that’s very good. I think
transparency, I don't believe that you can ever have enough
transparency. So, whenever we can have transparency without—
making sure that we don’t release people’s private information on
the voter database, but to make sure that there’s transparency, I
think that’s very good.
I think our mission should also be to make sure that we can

restore voter confidence wherever it’s been damaged by election
misinformation and disinformation that we’ve gotten from both
sides of the aisle in the last several years here in Georgia. And
then federal review of the National Voting Rights Act to make sure
we can update our voter rolls. People don’t understand how
dynamic our nation is. With people moving, we have about 11
percent of all Americans move every year and it doesn’t take long
before your list really becomes out of date. And so, we need to be
able to update that objectively. That is very important.
I think objectivity is very important, instead of subjectivity. So,

whatever we can add and put in the system objectivity, I think
that’s good, because people can’t argue with facts, figures,
processes that are objective based. When it’s subjective based,
that’s when they say, “Oh, you are doing something that may favor
one side or the other.” So, objectivity will be a very good thing,
also.
And also, at the end of the day, this is really an issue for society,
that we need to become more civil, more respectful, and we also
need to make sure that we lean back into those traditional values
of character, integrity, and honesty.
Rick Hasen: Well, thanks to you both. It’s been, really, an illuminating
discussion, and it’s good to start with the real world.
And now, we’ll move from the real world to our next panel. Our
next panel is called, “The View of Those Who Study Democracy
and Authoritarianism” and it is being moderated by Julia Azari,
who is of Marquette University and the website FiveThirtyEight.
Julia, I’m going to turn it over to you. Thanks.
Julia Azari: Okay, great, thank you, and thank you so much for having me. I’m
looking forward to moderating this panel.
We’ve got a really fantastic and distinguished panel. We’ve got

Larry Diamond, who is a Senior Fellow at Stanford University and
the Hoover Institute, author of the book, Ill Winds. We’ve got
Page 22 of 66
Gretchen Helmke, Professor of Political Science at the University

of Rochester and the Co-founder of Bright Line Watch. And we’ve
got Steven Levitsky, Professor of Government at Harvard
University and co-author of the recent book, How Democracies
Die.
So, I want to begin this panel by posing a question to the group in

general to kind of take the temperature. How concerned are you
about election subversion in the 2022 and 2024 national
elections? I’ll just go alphabetically, so we’ll start with Larry.
Larry Diamond: Thank you, Julia, and I just have to offer, first, a word of thanks,
not only to Rick and David and the Chancellor, but to Secretary of
State Raffensperger and Election Administrator Longoria. I
learned so much from the last panel, and I think these are two
such incredibly admirable individuals. I just, when I listen to them,
I’m proud to be an American and proud to live in what is still a
democracy in the United States.
But to answer your question, I think there’s about a 30 percent

chance that we will have a breakdown of democracy in the United
States by November of 2024. I think any illusion we had that the
problem was going to go away if the authoritarian incumbent
President we had left office has been shattered by the post-
election crisis, and by the fact that there are people challenging
people like Secretary Raffensperger, as was referred to in the
Republican primary, and the primary for Secretary of State, I
believe, in Michigan and other states who don’t just have different
political inclinations or loyalties, but I think have made clear that
they want to use and abuse the process to impose a certain
outcome.
We have a substantial portion of Mr. Raffensperger’s party that

has now clearly and unambiguously, in my view, defected from
democratic norms and would be willing to use their power to a
considerable extent, and we don’t know how far, to distort election
integrity and subvert the electoral process to try and impose an
outcome or, to put it more telegraphically, find 11,700 votes or
whatever it is.
And when you have not only a significant portion of one of the two
major political parties that no longer is committed to democratic
norms or to the principals of mutual forbearance and mutual
respect that Steve Levitsky highlighted in his co-authored book—
that is a profound threat to our democracy.
I’ll just close, Julia, this round, for myself by saying—this is why
(a) I don't think Brad Raffensperger should be running for
Secretary of State. I think an independent panel of citizens in
Georgia should appoint him Secretary of State, and it should be
maybe a term job like the GAO, the head of the Government
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Accountability Office, as a neutrally appointed 10-year term. It

would be perverse to have the head of the GAO in the United
States running as a partisan electoral official.
And finally, just a slight departure from what Isabel Longoria

said—I don’t want people to know too much about who our
election officials are. I certainly don’t want them to know their
address, their telephone number, or other matters. These should
be professional, neutral, career administration functions. And the
fact that it’s being increasingly politicized, I think, represents a
grave threat to the future of American democracy.
Julia Azari: Thanks. Gretchen?
Gretchen Helmke: I just want to second Larry in thanking Rick so much for organizing
this conference, and I thought the first panel was really terrific.
Up until five years ago or so, my research was focused entirely on

Latin America and the problems of weakly institutionalized
democracies. In trying to understand some of those problems, I
often drew on theories and models of American politics, often as a
foil for what I was talking about. But I couldn’t imagine that I would
be taking some of the lessons from Latin America to analyze the
dangers of authoritarianism in American politics, but that’s where
we are.
So, with respect to your specific question about the significance of

subversion and elections, I think the most obvious problem
coming out of the 2020 election is that it revealed the soft points in
our electoral system, and many of those are unique to the United
States, right? Rick mentioned some of those in the beginning, how
decentralized it is and of course, the arcane nature of the Electoral
College, that really doesn’t have any parallels with other systems
around the world.
I think what this has done is that it’s set the stage for those who
are interested in subverting the election to basically shift their
tactics and potentially be much more effective in 2024, which is
really concerning. I also think, though, in a kind of 30,000 mile
above view, I think it’s fundamentally shifted both citizens’ and
elites’ beliefs and expectations about the sort of behavior that is
tolerated in a democracy and the sort of behavior that constitutes
a fundamental transgression against the rule of law.
So, in a sense, I wonder if, in hindsight, we’ll see the 2020 election
as a sort of antithesis of something like the Glorious Revolution,
which scholars have long touted as a kind of key event that
convinced both citizens and leaders alike that there were certain
bright lines that leaders could not cross without being punished by
citizens.
Page 24 of 66
So if, on the one hand, the Glorious Revolution established the

bright lines that formed the basis of liberal democracy going
forward. Is it the case that 2020 has threatened to basically erase
those bright lines for democracy in America? Now, of course,
Trump was not ultimately successful in what he sought to do in
2020, and in terms of elites, I would argue that the bright lines
actually held, right? Courts struck down the administration’s
claims of fraud as frivolous. Local officials, Brad Raffensperger
being the foremost well-known of those, upheld the law. Election
officials and administrators did their jobs, and ultimately Congress
and Vice President Pence certified the election. Yet, it’s also
shocking how many Congresspersons still objected to the
certification after—immediately after—the insurrection, and how
many of those who did certify the election have been or are being
targeted.
So, in terms of key events being crucial for actors sort of seeing
what the basis of democracy is, I fear that the broader signal is
that those who stand up against autocracy are being punished,
and this is obviously a deeply toxic and troubling lesson of the
2020 election.
Julia Azari: Great. Steve?
Steven Levitsky: Let me also thank Rick and the organizers of this conference and
also putting me on a panel with two old friends and two of the
smartest people I know, who have said most of what I would have
said. But let me agree with Gretchen and Larry that I am greatly
concerned about the 2024 election.
I think there is—one thing that both Larry and Gretchen pointed
out is that our electoral system is pretty vulnerable to abuse.
Gretchen mentioned soft points—it’s very easy to politicize our
election system if a particular party has the will to do so. So,
fortunately, the stakes of U.S. elections were, for most of the last
century, were not sufficiently high that one party or another had
the will to steal an election. But if a party has the will to steal an
election, the capacity is there to politicize and to effectively use
Constitutional hardball, to use the letter of the law to subvert the
spirit of a free election. I think that’s become very, very clear in the
last nine months.
What’s really shocking for me and what’s really changed for me is

that it’s now—much more so than when we wrote, How
Democracies Die—it is very clear to me that the Republican Party
as a whole has the will to subvert democracy. When we wrote
book How Democracies Die, Daniel and I were actually fairly
optimistic about the Republican Party. We assigned the
Republican Party great responsibility for having dropped the ball
and nominated Trump and supporting Trump. But we expected
that there would be at least a significant faction of the Republican
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Party that would be able and willing to constrain Trump, that would
actively defend those bright lines that Gretchen was talking about.
And that has, I think, it was made very clear, not before, but the
two months between the election and January, 2021 made it very,
very clear that the bulk of the Republican Party was willing to
engage in anti-democratic behavior. Juan Linz who is, I think, still
a scholar of authoritarianism and democratic breakdown in the
20th Century was probably clearest in delineating what democratic
behavior is. And he described, he argued that in order for us to
consider a party or a politician to be a fully democratic actor, a
loyal Democrat, they’ve got to make it unambiguously clear that
they accept elections as the only route to democracy, they need to
unambiguously and under all circumstances reject and eschew
violence, and they need to unambiguously and under all
circumstances break with anti-democratic extremists. The
Republican Party leadership ceased doing all three of those things
in November, 2020, December, 2020, and January, 2021. And as
long as that’s the case, as long as the Republican Party is not
committed not just to democratic norms but to democracy, our
elections are going to be crisis-ridden.
Julia Azari: Alright. Well, this is a very sobering round of discussion, and it
sounds like although our panelists are focused on different things,
that everyone is really concerned about 2024 specifically. And
that’s maybe a subject for another panel is this focus on the
Presidential election and its potential for subversion and maybe
the linkage to the political will that Steve talked about.
Since all of you re scholars of comparative politics, I wanted to s

shift over to that and ask what the United States can learn from
other examples, successful and unsuccessful, in addressing
democratic backsliding. So, Gretchen, we’ll start with you.
Gretchen Helmke: Sure.
So, I think generally, looking at cases beyond the U.S. has been
really helpful for scholars of American politics. Certainly, I think
there were voices out there warning about how dysfunctional our
system was prior to 2016, but in some sense, maybe much like
the Kremlinologists who studied Russia, I think the field of
American politics didn’t see the U.S. as being quite as vulnerable
to backsliding as it was.
And I just want to say, you know, Steve Levitsky’s and Dan
Ziblatt’s work on this really set the agenda for simply identifying
and labeling the U.S. as a case that was in danger of, and indeed
undergoing, democratic backsliding. And a huge part of their
enterprise was informed by analyzing comparative cases like
Chile in the 1970s, Germany in the 1930s, Fujimori in Peru, et
cetera.
Page 26 of 66
At a more general level, though, I think the value of comparative

politics and the value of comparative cases is to begin to identify
common mechanisms. So, I want to borrow a distinction made by
the political scientist and philosopher, Jon Elster, who basically
talks about the goal of social scientists to look more for
homologies, which are equivalent triggers that foster the same
dynamics, rather than loose analogies, which may have surface
similarities, but might even obscure deeper differences.
So, for example, in a lot of my previous research on Latin

America, I had been really focused on how presidentialism can
raise the stakes of politics and contribute to all sorts of problems
of democratic stability, including the routine use of Constitution
hardball and the erosion of checks and balances.
Now, in the United States, presidentialism is relatively weak, right?

What’s raising the temperature and the stakes of politics is more
polarization, right? But this common mechanism of having
dynamic where it is simply unacceptable for the opposition to be
out of power really breaks down the self-enforcing equilibrium.
So, I have other thoughts on how literature on counter-majoritarian

institutions can also be informed by lessons of comparative
politics, but I’ll stop there and give others a chance to weigh in,
too.
Julia Azari: Steve?
Steven Levitsky: Thanks. Let me, I guess, make two points that I would draw from
comparative cases. One is that it’s not just the crazies who kill
democracy. It’s not just the people who stormed the Capitol on
January 6th, it’s not just generals or armed insurrectionists. It is
the politicians, the mainstream politicians who enable them.
If I can draw upon Linz one more time, he used the concept of
semi-local democratic behavior, which I think is absolutely
essential. These are politicians who nominally play by the
democratic game, who profess commitment to democracy, who
are presumably mainstream politicians—who are mainstream
politicians—but who condone or remain silent, sometimes protect,
and often cooperate with extremist political actors.
And so, the great danger is not so much the folks who stormed the
Capitol or even the folks who tried to steal the election in 2020,
but what worries me the most is watching the bulk of the
Republican Party not take action against, remain silent about
January 6th, remain silent about Donald Trump’s open effort to
steal an election, to overturn an election, and to remain silent
about the behavior of politicians like Marjorie Taylor Greene while
taking punitive action against politicians like Liz Cheney. It is the
Page 27 of 66
mainstream Republican Party not breaking with anti-democratic

extremists that is most dangerous at this moment.
Secondly, not unrelated, is that it is critical, it is absolutely critical

to me to build and retain a very broad small-D democratic coalition
to isolate authoritarian extremists. That coalition must range from
the left wing of the Democratic Party to this category of even
conservative never-Trumpists, if authoritarians are going to be
stopped. And this is something that, both, it’s very important that
Republicans who have remained silent thus far essentially defect
from Trumpism, that they break cleanly and publicly from
Trumpism, but it’s also really important that progressive
Democrats embrace these defectors, that progressive Democrats
not reject coalitions with conservative small-D democrats who
break with Trumpism. I’m going to stop there.
Julia Azari: Okay, and Larry?
Larry Diamond: So, I’ll just hit, I’ve got five points, so I’ll have to be brief. The first
is that I think we learned from the work that Tom Ginsburg and
Aziz Huq have been doing, including the article in the Journal of
Democracy, which I highly recommend as relevant or this,
“Democracy’s Near Misses,” that the state infrastructure is actually
very important to the non-, or the ideally nonpartisan dimensions
of the state infrastructure. And literally, so, electoral administration
and preserving its neutrality, other elements of the state
bureaucracy, and very crucially, as we heard perhaps from
Gretchen or Steve or you, the judiciary and the way it held in
2020. And so, preserving these elements, and now we’re hearing,
I don’t want to throw a hand grenade into this, but the roll that the
Chairman of the Joint Chiefs of Staff played in trying to contain the
potential for misuse of the military.
Secondly, I want to echo what Steve said. I think the real lesson of
containing potential democratic backsliding or reversing it is that
the peak authoritarian option must be defeated in an election. And
for me to elaborate on that would sound partisan in a conference
that must remain nonpartisan, but the point has to be made, and
I’ll just make it generally then, and echo what Steve said. I think
we are facing an existential challenge to American democracy.
And if progressives in the Democratic Party don’t realize that the
imperative in a moment of existential challenge is the defense of
democracy over all else, they’ll not be serving their interests or
democracy’s interests.
Third, as I hope will be further appreciated when we publish

Rachel Kleinfeld’s article in the next Journal of Democracy or if
people read the work of Lily Mason and Nathan Kalmoe, we’re
facing an alarming and nearly unprecedented challenge in terms
of violence seeping into our politics, and the potential for January
6th to be repeated in multiple ways and on an even larger scale.
Page 28 of 66
And we must mobilize the effective authority of law enforcement

and the elements, again, of the state bureaucracy to defend
against that.
Fourth, we must meet the challenge of pernicious polarization. I

want to call out the work of Jennifer McCoy and Murat Somer, and
we’ve gotta look at social media and our individual relations with
one another and how we feed pernicious polarization.
And finally, Julia, I know this is an issue you’ve been involved in

discussions about—I think our electoral system of first past the
post in single member districts is the worst possible electoral
system we could have to lay on top a context that I think we’re
going to be stuck with for a long time of pernicious polarization.
And so, when Gretchen says we’ve gotta now reverse the view
and see what America can learn, the U.S. of America, from other
cases, I think one thing we need to learn is, we’ve got to get past
this. And I think the fastest and easiest, and it’s not going to be
easy way, we can ta least get to a less polarization inducing and
rejection reducing formula would be to get as fast as possible and
as many states as possible ranked choice voting.
Julia Azari: Alright. Great. A lot to think about, there. We’ve got a lot of great
questions in the chat, so I’m going to actually turn to those. And
one, I’m going to pose this for kind of whoever on the panel wants
to take it, so one to three of you.
One of our audience members asks, are there cases where a

country has turned around democratic backsliding and if so, what
are the lessons learned for turning this trend around? Any positive
cases we can look at?
Larry Diamond: Well, I mean, we saw—I’ll just give you, you know, one example
where they haven’t completely reversed it, it’s a tough thing to do,
but they did make gains in Turkey where it’s now deepened to
authoritarianism, so, the analogy is not fully accurate. But if you
look at what the opposition did to unify around this campaign of
radical love—and here, I’m sorry to keep pushing Journal of
Democracy articles, but the one we published on this about a year
ago and the other articles we published on how to defeat
polarizing authoritarian populism, they all point to this point Steve
Levitsky made that you need a broad coalition, and it’s very
important not to demonize people who have supported the other
side.
I mean, okay, Brad Raffensperger told us he’s a Republican, his

preference in 2020 was Donald Trump. Well, I don’t want to
demonize him for that, he still had the democratic principles. So,
on the side of the party that I think is defecting from democratic
principles are still a lot of people who are not defecting. And we
Page 29 of 66
can’t push all of them away and say, “Because you’re affiliated
with that party, we’re not going to work with you.”
So, broad coalition, bias for hope, practical cooperation with

people who are still willing to work together. Lots of Republicans in
Congress who didn’t vote to certify the last election. So, think
broad—that’s the lesson.
Gretchen Helmke: If I could jump in, I think to call another attention to Journal of
Democracy, there’s a recent issue on Latin America and a great
article, I’m forgetting the lead author, but maybe Larry can
remember it. But it basically looks at how leaders have tried to
subvert democracy in Latin America, and many of them
succeeded in starting that project, but very few of them have then
succeeded in building a competitive authoritarian regime which, of
course, also refers to Steve Levitsky’s work with Lucan Way.
So, they draw distinction between something like Chavez and

Maduro in Venezuela that were really successful in establishing
an autocracy versus cases like Morales in Bolivia—Morales was
ultimately defeated at the ballot box as well as Ecuador. So,
again, there’s a danger of going too far into these analogies, but
there are certainly cases where—and I think Trump falls into this
as well—where, you know, he failed as a democratic leader, but
he also failed as an autocrat, too.
Steven Levitsky: Very quickly, there are cases, there are a number of cases—India
in 1975 to ’77 is one case of relatively brief backsliding; Slovakia
in the 1990s; Croatia in the late 1990s. I think, getting back to
what Larry said, one lesson is that you can reverse democratic
backsliding through elections. It doesn’t necessarily require
picking up arms or a massive popular revolution, you can do it at
the ballot box, it almost always requires the kind of broad electoral
coalition that Larry just mentioned.
But a word of warning that most backsliding cases actually take a

while to reverse. India was a year and a half—that was
exceptional. Most cases where we lose a democracy, you can get
it back, but it often takes 10, 15, 20 years. And so, better to
prevent backsliding than to try to reverse it.
Julia Azari: Okay. I think that’s a good action item to move to the next
question. Another one of our audience members asks, “Does
pending federal legislation include any provisions that will address
some of the things that you all are the most concerned about?”
So, we’ve got the For the People Act, the John Lewis Voting
Rights Act. Will these kinds of legislation make a difference?
Larry Diamond: Well, I think the best person to ask about this is Rick Hasen, if we
could bring him back in.
Page 30 of 66
I think that the John Lewis Voting Rights Act is really essential.
We desperately need it to defend voting rights. But if you were
listening carefully to Isabel and her work in Texas, I think you
realize the point that Rick made in his seminal piece in The New
York Times earlier this year, that the existential challenge is really
probably not to voting rights, although we’ve got to fight hard for
that, it’s to the administration of elections and the provisions to
decertify them.
So, I think some of the provisions in the larger bill that Rick could
speak to—and if you could bring them in, I think it’d really be
great—are even more important. Because if we can’t defend
against outright efforts to change the result of elections and
subvert them, we’re in very deep trouble. And I would like to call
out the imperative, because it’s so arcane that I think it’s at really
serious risk of being just overlooked and sidelined, the imperative
of revising the Electoral Count Act of, what is it, the 1880s that
creates a trapdoor vulnerability in the certification of the
Presidential election.
Rick Hasen: Since I heard my name mentioned, let me just say that the last
panel on legal changes is going to be addressing this.
Larry Diamond: Good.
Rick Hasen: And so, there will be—and most of the stuff is now in the new
Freedom to Vote Act, as opposed to in the John Lewis or the
earlier For the People Act, which had a provision on paper ballots,
but otherwise didn’t address issues of election subversion.
Larry Diamond: Great.
Steven Levitsky: Very quickly, I agree with Larry and with Rick that the greatest
danger, by far, at this point, or at least the most immediate one is
electoral subversion rather than voter suppression. And legislators
have been running to sort of catch up with very, very rapidly
moving politics and a rapidly moving Republican Party,
unfortunately. But this latest iteration of the bill—it’s good to hear
that that at least addresses this issue of subversion.
Very quickly, you asked, Julia, to draw lessons from comparative

cases. I think we can also draw lessons from U.S. history, which
I’m not an expert on, I should say. But I’ve been looking a bit
recently at the failure of the 1890 Lodge Act. This was a time
when there was a lot of concern about both voter suppression and
fraud and violence in elections, particularly the U.S. South, and it
was an effort to establish much greater federal oversight and
federal protection of elections.
That failed—it failed due to a filibuster and the Republican Party.

The Republican Party in this case was arguably defending
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democratic institutions, the failure of the Republican Party to

remain united and to prioritize the defense of democracy. A faction
of Republicans who were more concerned about other issues—in
this case, tariff legislation—kind of broke away and abandoned the
fight for this law. The law eventually, even though it passed the
house and had a majority in the Senate, failed. There was no
legislation, there was no federal protection of elections
established, and it’s basically after that that the South completely
disenfranchised African-Americans and sunk into seven years of
authoritarianism.
Larry Diamond: Can I just add, Julia, because I was searching in my mind for that,
Rick, thank you. I won’t get into the details, since the panel is
going to address them, but I do recall when Klobuchar and
Manchin and others agreed on this thing, if I’m remembering it
correctly, the bill that Rick was referring to, a few days ago, the
Freedom to Vote Act, I just thought—wow. And I was looking for a
summary of it, and apparently—well, not apparently, I will say The
Brennan Center has now produced a very useful one.
I just think, you know, if you want to defend democracy, we should

put a lot of our chips on this bill. And my principal prayer now,
aside—if I can make a substantive point—aside from the hope
that we can get some kind of compromise to repair our physical
and human infrastructure in the United States is that we can get
Senator Manchin to agree to just accept a small little carve out to
defend democracy and suspend the filibuster and get this Act.
Because I think it’s our best bet to defend democracy in 2024.
Gretchen Helmke: And if I could just add something, I mean, I think the voting rights
legislation is hugely important, but I think there’s a more
fundamental problem that’s hard wired into our Constitution, and
that really lies with these counter-majoritarian institutions that
have existed forever, but just increasingly, because of
demographic shifts, have come to advantage the GOP. And that’s
created all sorts of distorted incentives for the party. It doesn’t
necessarily have to moderate its message and capture the
median voter, right? The policies that the GOP is touting are often
hugely unpopular with voters.
The second thing, though, is that I think that the disadvantaged

party, so the Democrats, also become less wedded to the system
and see institutions as less legitimate. And so, earlier, Larry had
mentioned the fact that the courts played a role in upholding the
election results in 2020. Well, we’re starting to see a huge dip in
the legitimacy for the Supreme Court. There’s a poll that just came
out yesterday that was reported in The Washington Post,
particularly among Democrats, right? And if we know anything
from other cases, we know that once the legitimacy of things like
courts and judicial institutions is gone, it’s almost impossible to
rebuild that.
Page 32 of 66
So, I think there are kind of fundamental problems in the

Constitution that are accruing now to the benefit of the
Republicans that are just having ripple effects throughout the
system.
Julia Azari: Okay. Amazing. So, I want to pivot a little bit to a question about
norms. We’ve talked a little about the formal institutional structure
in the United States, and everyone on this panel has written pretty
extensively about informal elements of democracy and democratic
beliefs and values.
What is the role of norms and norm violations? And Gretchen, I’ll
start with you since you’ve written on this.
Gretchen Helmke: Sure. I mean, I think, you know, norms are fundamental to a
democracy. Steve and I wrote about this, I don't know, it feels like
100 years ago now, and certainly, that was front and center of that
How Democracies Die, those two master norms of forbearance
and mutual toleration.
I think what ended up happening is, Trump violated hundreds of

norms, maybe thousands of norms throughout his Presidency, I
would say in addition to the norm of mutual toleration and the
norm of forbearance. The other sort of master norm that he
violated and got away with over and over again was truth telling,
right? Basically, telling falsehoods that were publicly verifiable,
and there’s a fascinating article, the lead author is Hahl, in The
Annual Review of Sociology, that talks about how this could
actually appeal to voters. That voters could see a politician who is
telling falsehoods that are publicly verifiable as a kind of way of
distancing themselves from the elites, right, and kind of appearing
as a more authentic kind of politician, and I think Trump was really
a master of doing that.
Now, the biggest lie that he told was the big lie, right, the 2020
election. And I think this just violates democracy on so many
levels. I mean, it violates the thinnest definition of democracy,
which is that elections must be fundamentally, the outcome must
be fundamentally uncertain before they're run. Months, if not years
before that, he basically said, “The only way that I could lose is if
there’s fraud,” right? And we saw in our polling of Bright Line
Watch, prior to the 2020 election, both sides thought that if their
candidate didn’t win that the election was fraudulent. So, the
groundwork was really laid well in advance of the 2020 election for
this breakdown of this essential norm.
Julia Azari: Steve, I’ll move to you, and I want to sort of pose a specific follow
up here, which you can pick up on if you want, or answer the more
general question. One of the things that I was thinking of as I was
putting my questions together was the difference between norm
Page 33 of 66
violations in speech and norm violations in deed. And now that

we’ve kind of had some space from the Trump administration and
some time has passed, I wonder if you have any thoughts on the
differential impacts of those different kinds of norm violations.
Steven Levitsky: Let me try to tackle that very briefly and move on to the broader
question.
I think initially there was a pretty widespread belief that it’s really
the deeds that matter and we shouldn’t take Trump’s speech so
seriously. I think a lot of comparativists, those who’ve studied the
sorts of populists that Gretchen referred to realize that words have
really powerful consequences among voters, among activists, and
that it’s not so easy to separate norm violations in words from
norm violations in deeds, particularly when it comes to eroding
mutual toleration.
Mutual toleration is a really difficult norm to build. It has not

emerged in all societies in the world. It took a long time, even in
the United States, to build it among a very narrow political
community in the early 19th Century, and I think one of the things
we’ve learned is that it doesn’t take that much to blow it apart, to
blow up the norm of mutual toleration to basically undermine,
among your followers, to undermine the legitimacy of the other
side. And once that’s shot, I think all sorts of norms and practices,
democratic norms and practices come into question.
I think, in fact, in the four years since Daniel and I wrote How
Democracies Die, in some sense, I’ve become less interested in
the preservation of our pre-existing democratic norms. Because I
think the normative regime that we saw crumbing when we wrote
the book in 2017 has collapsed. I mean, I think that—and the
norms that are threatened now are so much more fundamental
that I couldn’t have imagined them being threatened four years
ago. Four years ago, when we were writing How Democracies
Die, I couldn’t have imagined that the norm of accepting electoral
defeat would be seriously—not just Donald Trump in 2015
and ’16, which worried me, which is the reason, we began the
project that led to How Democracies Die when we heard Donald
Trump say he might not accept the 2016 elections.
That was bad, but when we were writing How Democracies Die, I
could not have imagined that the Republican Party would
potentially be game for abandoning the norm of accepting election
defeat. And you can’t have a democracy if one of two major
parties can’t accept election defeat.
So, I think we are, norms—I agree with everything Gretchen said,

norms are incredibly important to making a democracy or any
political regime work, but that we’re now in, we’re in a somewhat
different place. Where at a place where, ultimately, political power
Page 34 of 66
and numbers and mobilization are going to be critical to defeating

what has become an openly anti-democratic force.
Julia Azari: Okay. Alright, Larry, you’ve got a couple minutes for the last word.
Larry Diamond: Well, as political scientists will tell us, political polarization
becomes particularly intense and dangerous under certain kinds
of conditions. And politically, one is the condition we’re in now in
this period in American democratic history—and you could
probably say this, Julia, better than I will—when there’s a relatively
even balance between the two parties. So, we’re in a period of
protracted kind of even competition and uncertainty and
alternation, there’s no dominant party. We’re in a party where
there is a tremendous social media challenge. We’re in a party of
deep cultural change in the United States, and in the composition
of American society because of immigration and what I think is the
very exciting and ultimately will be a positive thing, transformation
of American society to the first democracy in which there is no
racial or ethnic majority, but it’s a painful transition.
And we are in, because of these drivers and others, globalization

and so on, and polarization, a period of time that isn’t going to go
away any time soon, of extreme danger to American democracy,
because the polarization is so deep and the drivers, the causal
drivers are so rooted that they are putting an impossible load on
the norms. When it seems like, existentially, everything is at stake
in an election and maybe your future as a group or your tribal
identity or whether you think you'll ever be able to compete again
in an election, it’s a load, normatively, that no system of
democratic values can probably bear very easily.
So, in addition to all these other things we’ve spoken about in

terms of the need for legislation and that we’ll come back to, and
in terms of the medium to longer run reforms I want to say
institutionally including, I repeat, as an imperative, change in our
electoral system to induce more flexibility and less polarization,
we’ve got to go to work, each of us in our lives, in our universities,
in our milieus to try and walk back this polarization, this
demonization, and build bridges. I think Brad Raffensperger
should be admired, again, for trying to do it in his work and his
rhetoric. I think there are a lot of Republicans who have been
trying to do it; unfortunately, too many of them now, like Rob
Portman and Jeff Flake before him, have been retiring, but there
are still others like Mike Gallagher from Wisconsin; obviously, Liz
Cheney. And we’ve just got to find ways to transcend partisan
polarization, build lines of cooperation, and listen to people from
the other side and try and have, if not sympathy, at least empathy.
I’ll just close by saying, this is what we’re trying to do in our

deliberative democracy project, America in One Room. We
actually have this going on now with a new online deliberation on
Page 35 of 66
climate change. And any way we can get Americans of vastly

different views and political orientations to listen to one another
and find common ground, we’ve got to pursue it. Because
otherwise, the culture’s going to break, the institutions are going to
break, and democracy’s going to break.
Julia Azari: Alright.
Rick Hasen: Wow. [Laughter] Sobering words from this panel. Thank you,
Julia, and thank you to the panelists.
The first two panels have been on the problems, the risks of
election subversion. We’re now turning, I hope, to potential
solutions with our third panel. The third panel will be moderated by
NPR correspondent, Mara Liasson, and I’m going to turn it over to
Mara. Thank you.
Mara Liasson: Thanks a lot, Rick. I really enjoyed listening to the two panels.
Now, this one is about solutions. You can read the biographies of
my panelists on the website, but just to tell you, we’ve got Bob
Bauer, Ben Ginsberg, and Sarah Longwell—just the right people
to talk about this.
We’re going to be talking about solutions, and what strikes me,

especially when you talk to Democrats, is you’ve got this
incredible tension. Their hair is on fire, they feel this is an
existential threat, democracy hangs in the balance—but on the
other hand, they're also paralyzed, and there’s this feeling there’s
nothing they can do unless Joe Manchin decides to agree to a
carve out for the filibuster. And if your hair isn’t on fire, if you read
Bob Kagan’s long op-ed piece in The Washington Post today, I
can assure you it will be.
So, the first question I want to ask the panel is, how real is the
threat of election subversion? In other words, we heard Brad
Raffensperger earlier saying that these laws that have been
passed in states like Georgia or Texas or Arizona are merely to
establish some accountability, but you talk to Democrats and they
say that the laws that the Republican legislatures have passed
basically give partisan control to election machinery, to the
counting and certification of ballots, and they have made it
impossible for Republicans to lose a close race. In other words, all
those things that Donald Trump asked election officials to do in
2020 and they didn’t, this time, they will be able to do it and it will
all be legal.
So, how much of a threat are these new laws in the states? I’m
going to start with Ben.
Page 36 of 66
Ben Ginsberg: Well, they are something to be quite concerned about, that the
notion that somehow the vote of the people will be usurped by
politicians doing their will is a huge problem.
Now, I do think, to an extent, the number of states involved is

more limited than the lead up would suggest, and in fact, many of
the laws that were changed were put in in the pandemic election
which saw a record turnout. But that’s not to say that the ultimate
solution of this is not a really strong get out the vote program and
people getting energized by the election—I mean, goodness
news, Republicans have done a wonderful job of providing issues
to energize the Democratic base in upcoming elections.
So, I think a number of these laws are quite problematic, because

they punish election officials, something that Bob and I have
talked a lot about lately, and they do provide a mechanism for
taking the vote of the people away from that result. So, there’s a
lot of work to be done.
Mara Liasson: Bob, do you think that Republican legislatures in these states
have almost guaranteed that Republicans can’t lose a close race?
Bob Bauer: No, I’m not sure I’d go so far yet. I don't know that that’s the case,
but I do want to put this point somewhat into historical perspective,
because I want to underscore what a radical turn events have
taken. When you consider when attention really began to turn to
the way elections were administered in the wake of the Florida
Presidential recount in 2000, there, the discussion was not of
fraud, but of breakdown, of machines that were several
generations old and election officials were having difficulty with
complex or confusing or inconsistent rules, different rules applied
in different counties to the same types of ballots.
And so, there followed the Help America Vote Act which, for all its
weaknesses, represented a bipartisan commitment to the notion
that we ought to have modernized election administration that
does not produce elections like the one in Florida. And then after
that came and I co-chaired that Commission with Ben, the
Presidential Commission on Election Administration that was set
up by President Obama, and there we also concluded that
elections should be professionalized, that we needed to give
election officials the resources to treat elections as what they are,
which is a subset of public administration. It’s a form of public
administration, running the government properly and treating, by
the way, the voters the way our best businesses treat their
customers.
What we’re seeing right now is a sharp turn, a 180 degree turn in
the other direction—less professionalism, more partisan control.
And the various ways with which partisan control is being
exercised is, in my judgment, really insidious.
Page 37 of 66
The one point I would make, and Ben is correct—we’re seeing this
in some states, by no means in all states, but the precedent is
being set, it’s encouraging other states to follow suit. It has
become part and parcel of the creed of at least a significant
segment of the Republican Party that this is the direction we
should go, to put politicians in charge of our elections, and just to
say it, I think, underscores what a serious problem it is.
Mara Liasson: Sarah, how big of a threat do you think this is—putting aside voter
suppression and partisan gerrymandering, but just focusing on the
partisan control of election machinery counting and certifying
ballots?
Sarah Longwell: I mean, I think you have to take it in the larger context of what the
whole intention here is. So, if you look at all of the bills being
passed across the States, plus a lot of the moves to take out
some of the people like Brad Raffensperger and hand over control
to partisan state legislatures, what it looks like to me is a moving
of the, moving the pieces on the chess board. To make the
conditions more favorable if somebody like Donald Trump were to
run again, or if Trump himself, who I think may very well likely run
again, so that if the election is close, as it very well might be in
2024, that somebody like Jody Hice is the Secretary of State and
not somebody like Brad Raffensperger, who would definitely—you
know, because we’ve already seen him demonstrate this—who
would do the right thing.
And so, I agree with Bob that we’re not there yet, but to me, it is
about, they are laying the groundwork to make the conditions
more favorable. And I’ll say one other thing, that you know their
intentions because the rhetoric is clear. Like, when Liz Cheney got
removed for—they said she wasn’t on message. What they meant
by that is, the message going into 2022 and 2024, the “stop the
steal” message, that is their turnout mechanism, right? The big lie
is what they are using to generate enthusiasm from their base to
turn people out. And that means that the voters not only are
primed for the idea that subversion could take place, they're
demanding subversion. That’s what January 6th was about. It was
about Donald Trump creating the conditions in which people
would go to actively overturn the results of the election. And so, it
is both in the rhetoric and in these legislative moves that they are
trying to create the broad conditions for subversion to occur.
Mara Liasson: Let me just push back against that, because there’s some people
who feel that backfired in Georgia, that by saying the election was
rigged, it caused Republicans to stay home, because their vote
doesn’t count if the election is rigged.
Sarah Longwell: I think that might have been narrowly true in Georgia, but I think
that—look, this is what Donald Trump is doing. He is going out
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and saying the election was stolen, and why would Kevin
McCarthy who, right after January 6th, said this was horrible, this
was terrible—why did he ultimately go down to Mar-a-Lago and
make peace with Donald Trump? Why did they replace Liz
Cheney with Elise Stefanik? Why have they, in every action, every
move, why is election integrity what they're pushing at the state
level? It’s because, from a narrative standpoint, they want their
message to be, “the election was rigged, it was stolen.”
Seventy percent of the Republican Party actively believes that the

election was stolen. I do focus groups with Republicans all the
time who voted for Trump. They all think the election was stolen.
They all think January 6th was no big deal. And maybe right after
January 6th when the Georgia vote was held, maybe it hurt them
narrowly there, but the conditions have changed since then. They
have been beating this drum so effectively that now, nobody
thinks what happened on January 6th was even a problem.
Ben Ginsberg: Well, Mara, the results in the California recall—wow, it’s
California—tends to buttress the notion that that’s not workin’ so
well. And I think one of the other important events that occurred
today and last night is the Arizona audit. Because, obviously, that
was Donald Trump’s best chance ever to prove fraud or a rigged
election, given the way they sort of took over the audit and the
people they used and the money they raised. He failed, and you
know, the more state audits they do, although people hate the
state audits, the truth is, the same result’s going to occur.
And it is important, if you want to refute the big lie, to actually have
incidences like that where Trump gets to make his case, because
it’s not going to work.
Mara Liasson: Were you surprised at Arizona? I mean, if Cyber Ninjas were so
shambolic in their audit, why didn’t they just come up with a false
result, you know? That said, “Hey, we found a lot of bamboo
fibers, this was”—you know, keep with the big lie and say that the
election was fraudulent. Were you surprised about that?
Ben Ginsberg: Not really. I mean, look, the Trump folks have succeeded so far in
not having to present any evidence to back up their assertion of
the big lie—not before the election, not after the election.
And so, to do something like bamboo ballots would invite the sort
of scrutiny of the nonsense.
Mara Liasson: Uh huh.
Ben Ginsberg: Now, they had to make a mistake anyways, because they’ve said
that there’s somewhere in the neighborhood of 30,000 false votes.
Mara Liasson: Right.
Page 39 of 66
Ben Ginsberg: But the methodology they used, you can already see from their
report, has been refuted in other instances and is woefully lacking
in any credibility.
So, the more they’ve gotten put in a place where they had to try
and prove something and produce evidence, it falls apart.
Mara Liasson: Bob, let’s move to solutions and what can Congress do, and what
do you think Congress will do, if anything?
Bob Bauer: I can’t predict what Congress will do. Of course, the Republican
Caucus seems fully aligned against any voting rights legislation
and even if Joe Manchin and Kyrsten Sinema support the current
revised Democratic Voting Rights Bill alternative, the question
seems pretty much settled, at least in Joe Manchin’s mind for the
time being, if he were to reverse course, he would reverse course,
I can’t say. But he has said pretty flatly, as has Sinema as well—at
least it’s been attributed to her, the view that they will not support
taking the filibuster down. And so, under those circumstances, it’s
hard to be optimistic about what will happen, but we’ll see how
events unfold.
In answering the first question that you asked me, I want to go

very briefly back to the Arizona audit, but not for the purpose of
rehashing that, but just talking about what works and what doesn’t
work. If we don’t imagine that there will be a federal legislative
remedy between now and 2022, then the question is, “Well, what
can be done?” I think Arizona is both instructive and continues to
be troubling in the following respects. It’s instructive because the
scrutiny does matter, and the very heavy attention that was paid to
the appointment of Cyber Ninjas, the early missteps, the lack of
security in the ballot—I mean, frankly, the whole carnival that was
on display, I think, put enormous pressure on those who were
working with the company on the final results to avoid saying
something that simply could not sustain scrutiny.
Now, at the same time—and I haven’t had a chance to the study

the report, it is my understanding that it does everything it possibly
can, including with the dubious methodologies that Ben just
mentioned, to cast discredit on the reliability of the outcome there.
So, they kept the ball rolling at least in that respect, and that as
the Abbott announcement in Texas illustrates, I think this is going
to continue.
And that puts a huge burden on activity in the states, and what we
need is a whole civil society response. Our general reaction in
circumstances like this is, “Well, there’s gotta be a law.” Well, of
course, laws can be passed, laws can be amended, laws can be
repealed, and then of course, there’s the whole question of
Page 40 of 66
whether Congress can act in something so divisive when there is

the potential of a filibuster and not votes to overcome it.
But what happens in Arizona, what happens in Georgia? The way

in which election officials are shadowed and pressured—that, I
think, does make an enormous difference, and I don't think we
should understate the importance of community engagement on
this, business community engagement on this, ecclesiastical
community on this, you name it. If the civil society institutions that
we’ve relied on in the past, which—and by the way, that also
includes organized bar activity, which I’ve been, frankly, to some
extent disappointed in, though the courts have spoken, certainly in
the post November 3rd litigation, spoken fairly effectively on these
topics. But if we can’t rely on that, we’re going to be in a world of
hurt.
Mara Liasson: Well, let’s talk about that a little. You say that it had to sustain
scrutiny—why, because people were worried about being sued
the way Dominion has brought these suits? Or what was the
guardrail that held in Arizona? I mean, you’re talking about
pressure on all these actors—yeah.
Bob Bauer: It held up to a point. Right, again, I haven’t—others here may have
seen the report, I haven’t seen the report, I’m not sure when it’s
going to be released in its entirety, so I haven’t studied it. The
general impression I get from the accounts out there right now is
that there’s still an attempt to discredit the election results. Not to
say that they found a discrepancy between the official count on
Biden and their count on Biden, but that somehow, we can never
know. It’s a little bit like the Florida recount conclusion.
Mara Liasson: Right, right.
Bob Bauer: And that’s enough, I think, to keep the conspiracy theorists going.
It’s enough to continue to fuel copycat pseudo-audits in other
states.
I do think, however, that, as Ben pointed out a minute ago, the

scrutiny of this particular process, the attention paid to the
absurdity of some of the claims, the inadequacy of some of the
procedures that were adopted did drive them in the direction of
being very careful not to make claims about the vote count that
they couldn’t sustain, but then to move to what I would call sort of
the more suggestive and methodologically suspect way of saying,
“Well, this election was not reliable.”
And that kind of shadowing process is going to be critically

important. I mean, bear in mind, there was even election official
pushback, very loud pushback in Arizona at that audit. All of that
really helped. And then, of course—and we can talk about this
further—I do think the courts have an important role to play here.
Page 41 of 66
And I want to distinguish between what we might expect from the

courts on voting rules and on election subversion type issues. I
think the courts wind up giving us a very mixed result on litigation
over voting rules, like how many weeks of early voting, the
particular conditions under which people can vote by mail. That’s
very contentious area in which the court performance performed
November 3rd was mixed at best.
But I do think that, as the post November 3rd judicial performance

suggested, engaging around compromise of the election process
itself is something that can be taken successfully to the courts.
Mara Liasson: Alright, well, let’s talk about that civil society response, Sarah,
because you’re certainly engage with The Lincoln Project as part
of that. So, if Democrats can’t pass laws in Congress, they
certainly don’t have the votes in the state legislatures, but they do
have the ability to organize and even mount education campaigns.
And I’m thinking about something that happened in the 2020

election that was really instructive, which was the Hawkfish effort
to educate the news organizations and the public about the
difference between the red mirage and the blue wave. You know,
that’s something that people didn’t really know about until it was
out there a lot and people understood that what Donald Trump
was going to say, which is, “We should stop the count on election
day, anything that comes in after that is fraudulent,” people were
educated that that’s just not the way we count the votes.
So, I don't know if you think something like that can happen in this
case, but what can civil society do, and all those actors that Bob
just mentioned, short of passing laws to protect against this?
Sarah Longwell: Well, just a quick correction. So, I’m not affiliated at all with The
Lincoln Project, never was. I ran—
Mara Liasson: Ah—okay, I’m sorry.
Sarah Longwell: No, that’s okay. I ran a different group called Republican Voters
Against Trump.
Mara Liasson: That’s right. I’m sorry. Yeah.
Sarah Longwell: No problem. And the theory of our case was, what we did was, we
went and found all of these disaffected Republicans, of which I am
one, so I’ve been a Republican all of my life, I’m not a hair on fair
Democrat. But I have watched the Republican Party change
substantially over the last five years and go to a place that I never
could have imagined in terms of their willingness to facilitate and
accommodate a person like Donald Trump.
Page 42 of 66
And I think it’s evident in a moment where, as Bob Kagan’s piece

very powerfully outlines, we are in a moment of crisis right now.
Our Constitutional crisis is—it didn’t end with the election of Joe
Biden or because January 6th. You know, we’re past that. It is
ongoing. Like I said, I think these chess pieces are being laid out
on the board for somebody, most likely Trump, to take advantage
of.
And so, what you have to do, if you can’t get Mitt Romney or Ben
Sasse or Susan Collins and people that I’ve long admired to meet
the moment and say we have to pass something like The Electoral
Count Act, which would clarify the Vice President’s role so that
you don’t find Mike Pence, somebody like Mike Pence in a
position of calling up Dan Quayle, saying, “What do I do?” And but
for a Dan Quayle phone call, you know, potentially, this Eastman
memo that came out, which was a very clear plan to how you
overturn the election, it could have happened.
I mean, I reject this idea that we should all just say, “Well, it didn’t
happen, so we shouldn’t be that worried about it, and the
institutions held.” The institutions held because of a very thin
group of Republicans who did the right thing in that snap moment,
and some of the did the right thing because they didn’t quite know
how to do the wrong thing. And I’ll just go back to that Arizona
audit—the reason that there was going to be so much scrutiny
was because Steven Richer and Bill Gates, who were the
Maricopa County Supervisors, and I can’t remember what Bill
Gates’ title is, but they were vocal in Arizona about the fact that
the election results were correct. And they were pushing other
Republicans to the point where it got embarrassing for
Republicans in the state to have the Cyber Ninjas being, you
know, crazy bamboo finders.
And so, the way that you tackle this if you can’t get Mitt Romney
and Susan Collins, those Republicans are not going to act in good
faith on voting subversion or just voting rights in general, what you
have to do is win elections. So, our project was about helping
Democrats to build the biggest, broadest pro-democracy coalition
possible that ranged everywhere from Liz Warren to Liz Cheney in
which you have—you know, there’s still this percentage of
Republicans or right-leaning Independents, they voted for Joe
Biden, but they voted down ticket for Republicans. And those
swing voters are very important to this pro-democracy coalition,
and Democrats have to go embrace them, get their votes, in order
to hold off this dangerous version of the Republican Party, and
winning elections is the only way to do it, unfortunately.
Mara Liasson: Ben, let me follow up on that, as the other Republican on the
panel. We heard previous panels describe the Republican Party
as a party that no longer accepts as legitimate a loss in an
election. In other words, with the exception of bright blue states
Page 43 of 66
like California, Republicans are the party that only says an

election result is legitimate if they win. Do you think that’s where
the party is, or not quite yet?
Ben Ginsberg: I think that’s a bit overbroad. I think there have been a number of
Republicans who have behaved badly along that line. But no, I’m
not sure that’s going to be borne out in future elections.
I do think that Sarah put her finger on what the real problem is in
this entire debate, which is, how do you talk to the 30 percent of
the electorate, 78 percent of Republicans who don’t believe in
election results? And I love confabs like this, I think they're really
important, but it’s not talking to the 30 percent.
Mara Liasson: Yeah.
Ben Ginsberg: And the real struggle, Larry Diamond alluded to it in the previous
panel, is how you manage to get together to reach the 30 percent,
to convince them that election subversion, the big lie, the whole
panoply of issues are wrong. That’s why I actually think these
audits, although they're driving people crazy, are really important.
Because, again, they are Donald Trump’s best case to lay out the
evidence to prove it. And to the extent he can, that’s a win for, I
think, bringing people back to recognizing that our elections are
valid.
The issues that Bob brought up in the Cyber Ninjas report that
cast questions on the election do do that. And it’s an attempt, but
it is easily refutable, because again, they have to state where they
got their numbers of votes, and that methodology can be
disproven and is disproven.
It is also a mistake to think of the 30 percent as a monolithic

group, and there are certainly a number that will never be peeled
off from the conspiracy theories. But there are a number of proof
points that can exist through things like audits that are helpful. So,
we ought to be figuring out ways to talk to the 30 percent, and
these opportunities, these forums for Trump to have to try and
make his case, is an important piece of that.
Mara Liasson: Who should try to reach the 30 percent? Who in the Republican
Party is a credible messenger for this kind of hardcore—like,
they're the anti-Democrat equivalent of the anti-vaxxers, you
know? Who could talk to the 30 percent?
Ben Ginsberg: That’s not the way I’d design it. I would design it more as a forum
to say, “Okay, our elections are rigged.” If they're really rigged or
fraudulent, it’s important to find that out. We’re going to give you a
chance—and maybe this is Republicans who put that together,
retired judges, retired members of Congress—who provide those
forums to let Trump try and make his case.
Page 44 of 66
Mara Liasson: So, Bob, have these audits, in some weird way, become a good
thing for Democrats?
Bob Bauer: So, this is a point on which, I wouldn’t say I register a mild dissent
from what Ben is saying. I think he’s correct that once they’ve
been established, it is imperative to meet them head on and to
make sure that the public record is absolutely clear about the
methodological flaws and anything else about the report that casts
discredit on the process and the conclusions that they're at least
attempting to project.
I do think that’s where we are now with the post-2020 audits. What
we’re seeing is an attempt to make this kind of thing routine, which
is, post-election, whether it’s now or in 2024, 2028, 2032, the
normal electoral procedures that we have for certifying and testing
the outcome of elections, recounts, contests, all of that are
suddenly bypassed by a politicized process of pseudo-audits,
each one of them in the various states structured differently,
perhaps some of them piggybacking on the Cyber Ninjas
experience, which was particularly risible, to make them appear
more credible. And that sort of thing, if it catches on from cycle to
cycle, I think is absolutely disastrous.
We have laws that permit election results to be tested, and they

can be tested in every single state, and they were tested under
those laws in the states that were most in contention in 2020, but
that wasn’t good enough. Now, we have what we have, and Ben is
correct, we need to address them, but we cannot have this
develop as a general practice for politicians to device procedures
that are outside the legal framework to raise questions about the
validity of elections. And that’s what happened in Arizona, and
that’s what’s happening in other states.
Mara Liasson: Yeah. Let me go to some of the questions that participants have
submitted to us. One of them is, “What happens if we have a
Republican House of Representatives? Can you imagine a
scenario in 2024 where a Republican House actually certifies a
win by a Democratic Presidential candidate?”
Bob Bauer: I’ll just say one thing real quickly, because I know Ben has a lot to
say on this topic, and Sarah, too. I think that the participant who
raised the question is raising a very important point, which is, this
process by which elections are contested, of course, doesn’t stop
in the states.
It can be taken up outside the Presidential campaign context

under the Constitutional provision that authorizes Congress to
judge the returns of its members. They can disregard a
certification, I think Ben’s about to give you an example, if I can
project it, they can deny a certification from a state, and then
Page 45 of 66
actually assume responsibility for recounting the vote itself on a

completely uncontested basis, meaning, at the end of the day, the
House can reverse the results that the state reached. And there
are also mechanisms under the so-called Federal Contested
Elections Act, that permit candidates to trigger a House inquiry
into the validity of an election result. It is not impossible to imagine
that, though these have occurred in the past, there have been a
lot of FCEA cases, that this becomes much more routine, given
the surrounding environment of discredit being cast on our
electoral process.
Mara Liasson: Yeah, so Ben, so, that’s like meaning the January 6th insurrection
would finally have succeeded.
Ben Ginsberg: Well, before we get too out in front, let’s remember the differences
between Congressional elections and Presidential elections. So,
this all took place for the Presidential election with the Electoral
College. For Congressional races this time, and ever time, the
House is the judge of its own members, under the Constitution, so
that the certificate of election that comes from a state has to be
voted on by the membership of the House and the Senate. And
that could be fairly significant.
I mean, after all, what didn’t get litigated in this election cycle was
that, in a state like Arizona, they tried to hold up the certification of
Joe Biden. But on the other hand, the majority Republican
Congressional delegation ran under the same election rules.
Ben Ginsberg: So, in other words, why would the House of Representatives
necessarily identify or corroborate the certifications of all members
of Arizona if they were going after one particular state?
So, the Republicans who were doing this never had to confront
the issue in this context, that they were actually challenging their
own election.
Ben Ginsberg: So, I think that’s a Congressional issue for 2022. In terms of 2024,
Donald Trump should be in favor of amending The Electoral Count
Act under pure self-interest. Because one great difference in 2024
is that his Vice President, under any circumstances, is not going to
be sitting on the chair—
Ben Ginsberg: - it’s Kamala Harris. And suppose, just suppose she sees Donald
Trump as an incredible existential threat to the United States and
actually does what Donald Trump wanted Mike Pence to do.
Page 46 of 66
So, you know, there’s all sorts of gamesmanship that is really fun
to think out, but the catastrophic consequences for both parties in
taking it too far can come home to roost in the next iteration.
Mara Liasson: Sarah, we have a question about what kind of community—what

Bob was talking about earlier, community engagement, business,
ecclesiastical, bar associations, et cetera, what can regular people
do to help?
Sarah Longwell: Well, you know, one of the things that I’ve been sort of
disappointed in is that right after January 6th, all sort of the
Chamber of Commerce types, a lot of businesses came out and
they said, “We’re not going to support any Republican who voted
against certifying the election,” and that was lots and lots of
Republicans. And it didn’t take that long for them to start walking
that back.
And this is why, I guess, I am so exercised about this is, I feel like
I have to be, because so many other people seem insufficiently
alarmed. Where January 6th caused everybody to say, you know,
people had been telling us never-Trumpers, “You’re hysterical.
Trump’s not going to do anything. Guardrails will hold.” And the
day of the insurrection, there was a lot of people saying, “Nope, he
should be impeached.” The Wall Street Journal editorial board,
they came out and said, “he should be impeached.”
And over time, though, I have what—and I had somebody say to

me, he was actually a big Democrat, say that, “I slept the best I’ve
ever slept that night, because I knew Donald Trump was finished
after that.” Because that’s what we would all assume would
happen after something like January 6th, when the evidence was
clear that he had incited an insurrection and called for an election
to be overturned.
But that’s not where we are today. Where we are today, and this is
why a lot of these audits in the states—and I really disagree,
unfortunately, with Ben, here—it’s why they want to push the
audits in the states irrespective of what the results ultimately are.
It’s because they are not about actually auditing the results.
They're a messaging tool, because most people—the Arizona
election had been audited multiple times before the Cyber Ninjas
showed up. It had already been audited, it had already been
confirmed. They’ve already done recounts in Georgia. But if you
ask voters, do they know the results of the audits, they don’t. They
still just think the election was stolen. Because the goal is to throw
up lots of smoke and confusion.
And so, people in civil society, right—business leaders, elected

officials at all levels—have to be there to say, “No, there are
consequences for behaving this way, and we’re not going to keep
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supporting it.” But when everybody walked it back, that creates a

permission structure for everyone to say, “It wasn’t that big a deal,
everything was fine. It was only a few people that died, you know,
and it’s not clear that they definitely died during the insurrection.”
And the narrative shifts, the reality changes, and that’s the part
that is so scary is, we’re starting to bake this into our politics and
Donald Trump is winning a narrative war.
And so, even to go back to your earlier pushback on me, which is,
“Oh, but you know, didn’t it actually backfire on them in Georgia?”
We’ve come a long way since then as a country, and it’s not been
in a good direction in terms of our willingness to accept all of these
bills at the state level, the pushing aside and the intimidation. You
know, in Arizona, they have changed the law so that Katie Hobbs,
who’s the Secretary of State, isn’t the one who decides anymore.
They changed it so that the Republican, the Attorney General, is
the one making the decision.
All of these things, all of these little moves are an attempt so

that—it’s an attempt to set things up so that they can go differently
next time.
Mara Liasson: Yeah. In terms of what you’re saying is, the only solution is to
actually win elections, and right now, as Larry Diamond said
earlier, we’re in this 50/50 country, really unstable. And you just
mentioned a lot of groups and people that are part of the
Republican coalition—you know, the business community. And
then there are all these Republicans in Congress—people like Mitt
Romney and Susan Collins, you mentioned them, too.
The fact that there seems to be nothing coming from those

important parts of the Republican coalition, how can this problem
be solved without leadership from those areas? I mean, without
the Republican Party, some aspect of it, trying to correct this
problem, how is it going to be solved?
Sarah Longwell: Yeah, so, I have two answers to that. One is, I sometimes don’t—
even though the practical political reality is that you’re not going to
get 10 Republicans to help you out on voting rights, sometimes
I’m loathe to say that, because we should still be demanding that
they do. You know, in some ways, we let them off the hook by
saying, you know, everybody’s mad at Joe Manchin and Kyrsten
Sinema wen there’s all these Republicans over here who are not
doing what they need to do to defend against election subversion,
even though they know it’s a threat. They do know what’s at stake,
here.
And so, we should continue to put pressure on them and demand

it from them. But the other group that I’m going to spend some
time pushing here is, the Democrats also are moving ahead as
though it is business as usual. I mean, right now, watching them
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implode, fighting with each other over the infrastructure bill,

instead of—you know, they seem to not be aware of the stakes,
not be aware of what a potential catastrophe we’re in for
democracy. And the fact is, they haven’t put any of the voting
rights, I mean, there’s a lot of, I think, Democratic activists who are
pushing it. But I’m not sure that—in fact, I’m certain, in general,
Democrats have not put that at the center of what they're doing.
You know, rolling back executive power—there’s all kinds of
things Democrats could be focusing on that would frankly keep
Donald Trump’s and the Republican Party’s abdication on this
front and their attempts at subversion, keep it front and center, but
instead, they're going after their political priorities. And that is the
other part of this problem, because they're not demanding that,
they're not putting Republicans on the spot about this, they're
fighting over normal political stuff.
Mara Liasson: Right. I mean, the theme of the last six years was like a failure of
imagination at every step. Nobody could imagine how much worse
it could actually get.
Bob, do you—
Bob Bauer: Yeah, I just wanted to add, I wanted to second something that
Sarah said about Congress’ ability to move on another front in a
democracy-reinforcing fashion, and that is to put up, restore some
of the guardrails on abuses of executive authority. Because as we
saw, after all, on January 6th, and that’s part and parcel now of
the fight between Trump and the current administration and the
Congress, more to the point, over the release of certain
documents that bear on what Trump was doing on January 6th,
who he was communicating with, whether he was discussing the
institution of martial law, whatever it may be.
Having Presidents who go well beyond—and of course, obviously,

there have been questions about Presidential overreach in prior
administrations. But there are particular abuses that have come to
light, particular excesses, extremes in the abuse of executive
authority that everyone swore—speaking of Sarah’s frustration
over things dimming over time as a source of outrage—everyone
swore something would have to happen, something would have to
be done about these abuses of power, because it put Presidents
in the position of doing what he ultimately thought he could do,
which was to try to use the federal government to save his
Presidency.
Bob Bauer: And those steps need to be taken. They're not specifically focused
on election protection, although they obviously do bear on election
protection. They have to do with keeping the President of the
United States from being in a position where he or she can
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marshal the resources of the federal government to maintain

power illegitimately.
Mara Liasson: But do you think the January 6th Committee has to get those
documents and lay out what happened and what Trump tried to do
before you can correct those abuses? I mean, there has to be—
Bob Bauer: I don't know about before. There’s some curbs on Presidential
power, reforms of the Presidency that can take place without
regard to what the January 6th Commission concludes.
Mara Liasson: Okay.
Bob Bauer: But, having said that, this Commission really does need to be able
to lay that out. It needs to put before the American public what
we’ve already seen just from a sampling is the shocking extent to
which officials of the government were prepared to take official
action to subvert the outcome of a Presidential election.
Mara Liasson: Yeah, yeah. It was almost a coup. So, we have just a few minutes
left, and I just want each of you, since this is a panel on solutions,
to talk about kind of the one or two things that you think would be
the best solution to this and that needs to happen as soon as
possible. Sarah?
Sarah Longwell: Unfortunately, I have to put this back with the Democrats and say,
if you’re going to build this big, broad, pro-democracy coalition,
you have to—the progressive solutions that your heart desires,
they might have to take a back seat, and you should be focused
on winning in 2024 by putting up very broadly appealing sort of
center left candidates like Conor Lamb in Pennsylvania who can
win. The only way you’re going to get these things done is to win
elections, and so, I would—the pie in the sky stuff, just like with
Manchin having to take something like H.R.1 and narrow it down
to something, and even there, it’s probably not going to pass. So,
you’ve gotta focus on real solutions, real things you can
accomplish so you can win.
Mara Liasson: Okay. Ben?
Ben Ginsberg: Well, I think that it comes from the answer to Sarah’s question
about why aren’t responsible Republicans standing up to folks.
And the answer to that is, nobody’s figured out how to talk to the
30 percent who don’t believe in election results. So, I’m all up for
civil society setting sort of the goals and the metrics for the way
the country should be, but I’m pretty sure what that 30 percent is
not going to listen to is the elites, the leftist elites telling them how
they ought to behave and what they ought to believe in.
So, I do think the solution comes from groups like this not turning
up their noses at the 30 percent, but in fact, figuring out the ways
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to have a dialogue, let them make their case, and then refute the
case.
Mara Liasson: Okay. Bob?
Bob Bauer: I do think community leadership is absolutely critical. That, to me,

is one of the vehicles for communicating with the 30 percent, but
also, for creating a monitoring process, like a monitory democracy,
given that the officialdom that is charged with election supervision
may be increasingly compromised, and they have to feel that
somebody’s looking over their shoulder and there have to be
structured processes within every state for bringing pressure to
bear on them. I think that is going to be extraordinarily important.
I’d have to say, barring legislation—and it’s not clear to me that

any such legislation would pass, so I agree, by the way, with Ben
that there’s a prospect of amending The Electoral Count Act,
arguably in both parties’ mutual interests. I think the Republicans
need to think hard about how this door swings both ways, but
beyond that, I do think there needs to be a clear message coming
through in the debates about voting rights that tend to mush a lot
of different issues together about this specific issue—institutional
defense. Voting rules are important, I have strong feelings about
voting rules, and Ben and I were part and parcel of a commission
that put out all sorts of recommendations about the alternatives
that should be available to voters—mail and early voting and the
like. And we should continue to have those fights. They have to
happen. It’ll get resolved on a state by state basis.
But on a national, urgent level, the focus has to be on protecting

the fundamental institutions by which our democratic elections are
conducted, legitimated, and communicate.
Mara Liasson: Are the three of you optimistic or pessimistic?
Ben Ginsberg: Apprehensive.
Mara Liasson: Okay.
Bob Bauer: Depends on [Cross talk]—
Sarah Longwell: Sorry, go ahead, Bob.
Bob Bauer: Go ahead, Sarah.
Sarah Longwell: I was just going to say, I’m long on American democracy. I’m like,
we are—we will get this figured out. I think I am—so, I wouldn’t
short American democracy, but I am very concerned about where
we are right in this moment, and I would highly recommend
everybody go read the Bob Kagan piece in The Washington Post,
because I think he’s right about a very key thing, which is that
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Donald Trump is going to run again in 2024 and that our reactions
are insufficient to the crisis we are currently facing.
Mara Liasson: Bob?
Bob Bauer: And I would just conclude—
Mara Liasson: I’ll give you the last word.
Bob Bauer: - yeah, I’ll conclude by saying I agree. One of the areas in which I
take issue with Kagan is that I worry profoundly that if Trump
doesn’t run or re-election in 2024 that somebody borrowing,
frankly, his same leadership style and tactics and subscribing to
these same tenets is going to look to capture his constituency,
and we’re actually dealing with something that will outlast Trump.
And that makes it an even more serious problem, if you look at it
that way, because it means it’s here with us for a while, past
Trump, as well as during Trump.
Mara Liasson: You mean, like a Josh Hawley or—
Bob Bauer: Yes, absolutely—Ron DeSantis.
Mara Liasson: Ron DeSantis, yeah.
Bob Bauer: Yeah, I mean, but I’m not looking to have a fight with Republicans
about Republican programs, I just listen to what they're saying on
this topic, and what they will be likely to say even more if it looks
like they have to inherit the mantle of Donald Trump.
Mara Liasson: Right. Thank you, thank you, thank you. Go read Bob Kagan and
then take a couple aspirin. [Laughter]
Rick Hasen: Thank you, Mara, and thank you to the panel, and I think we’re
going to need something stronger than aspirin after this.
Mara Liasson: [Laughter]
Rick Hasen: I’m going to turn it over to our final panel, which is going to be
chaired by Ned Foley. Ned is from the Ohio State University and is
a Professor there and Director of their Election Law Center, and
we’re going to finish strong with, really, some of the top thinkers in
the country on how to deal with this problem. Take it away, Ned.
Ned Foley: Thanks so much, Rick, for what’s been a fantastic discussion so
far, and I’m looking forward to our panel. In the spirit of very quick
introductions, I’ll say that we have Guy Charles from Harvard, we
have Michael Morley from Florida State, we have Janai Nelson
from the NAACP LDF, and we have Rick Pildes from NYU.
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And I’m going to ask an initial question that’s going to go to all our
of our panelists, and I’ll start with Guy and I’ll go in the order in
which I introduced them. And as we’ve talked about this afternoon,
the risk of election subversion can affect all types of elections—
Presidential, Congressional, Gubernatorial, Secretary of State, et
cetera, et cetera. And we’ve heard mention of the Electoral Count
Act from several people today, the role that Congress has, each
House in terms of the ultimate authority for elections of its own
chambers.
And so, wrapping our minds around this problem, to what extent is
the problem of election subversion common to all different types of
elections? So, our priority solution should be something that
affects all different forms of elections, or instead, should we be
prioritizing different solutions for different types of elections
because the risk of subversion, say, affects the Presidential race
more than others?
So, with that, Guy, do you want to kick us off?
Guy Charles: Sure—happy to. Thank you, Ned, and thank you to everybody.
Happy to be there with all of my co-fellow panelists, my Con Law
teacher and Election Law teacher, Rick Pildes; my wonderful
friend, Janai Nelson; and my other great friend, Michael Morley—
not to mention Ned Foley.
So, here’s how I would think about this. So, part of the question
really depends on how we define the problem, right? And I want to
raise sort of three particular ways of thinking about how we define
the problem. So, we’ve imported the term election subversion
predominantly from the IR, the International Relations literature,
where it is generally used and understood as statecraft by one
country to destabilize and undermine the authority and functioning
of other states in order to achieve their particular goals. Now, we
can adopt it for our purposes and to think about that election
subversion really means eroding the legitimacy of the political
system, attempting to destabilize the political system—so, election
meddling, disinformation, and even violence.
And I you think of it from that perspective, of trying to capture the

core aspect of the political system, if you adapt the definition from
the IR literature and you import it into our context, you then
probably should differentiate among the different types, right,
because the stakes are very different. What’s at stake, obviously,
for the Presidential election is very different from what is at stake
at the local election levels, right? So, even though there’s some
relationship or what is at stake at, say, having an election for the
Senate, for the U.S. Senate. And so, we have to think about the
various stakes and the underlying set of strategies that might be
used and that would differ, right? So, election meddling at the
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Presidential level, even in a decentralized Presidential level, has

greater harm to the political system, right? It can destabilize it well.
And I’ll just say two more things. One is, we also have to think
about, to what extent is the problem Trump and Trumpism, and to
what extent is it sort of the asymmetrical positions of the two
parties. And I think, as one of the earlier panels put it, and I think
we sort of have to think about it that way, where you have one
political party that is doing harm to the political process, right, how
should we think about its goals and its rule with respect to across
a subset of elections?
And then one last point—and we saw this in the previous two
panels, and here, I will disagree with a lot of the esteemed people
from the earlier two panels, which is the distinction between voter
suppression and election subversion. I think there’s an attempt to
say that these are two different things, and I think that’s a
significant mistake. That is, the purpose of voter suppression is to
destabilize the political system and make it easier to erode
democratic legitimacy, and both are tools that go hand in hand
along with election subversion.
So, if we understand the problem as destabilization, I do think that

we can make a distinction between the Presidential election and
all other sorts of elections, and we need to think about to what
extent is Trumpism really the problem that we’re trying to address,
and what is the real relationship between election subversion and
electoral suppression.
Ned Foley: Okay, thanks, Guy. Michael?
Michael Morley: Great. Thank you very much, and I also want to echo Guy’s
comments, it’s an honor to be included on this panel and to have
the chance to see all of you.
I agree that the question of election subversion raises different

questions with regard to the particular election that you’re thinking
about, just most basically because you have different structures
depending on the election for officially determining what the
dispositive results of that election will be. And so, to the extent that
there are different governmental officials, that there are different
processes in place for determining the results of different
elections, Presidential elections versus elections for each
chamber of Congress, versus in most states elections for each
chamber of the legislature, versus other types of elections, you
have different officials with that responsibility who were going to
come under very different types of pressure to come up with
particular types of results.
And this forces us to face the question, are there some types of
entities that we are more comfortable trusting with greater power
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over determining the election results than others? Are there

certain types of entities that are less trustworthy in this respect?
And, you know, Rick Pildes has, I recently read one of his articles
on this issue of institutional formalism versus a realist approach,
where he poses the question to us, can we really say in the
abstract that certain types of actors—be it state courts, federal
courts, Congress, legislators—can we really say in the abstract
that some of these actors are always going to be the better choice
as opposed to, might it vary over time? Does it depend who’s
holding that office at a particular point in time?
And so, focusing on the different structures in place and the

different officials that play a role in determining the outcomes of
the different elections, I think, is a major factor in figuring out how
to combat subversion, how to ensure the integrity of election
results. And I also think it’s helpful to think of it from a perspective
of how to prevent exploitation, how to prevent bad actors from
attempting to exploit uncertainty in the process, uncertainty about
what particular rules are, uncertainty in how to exploit lack of
knowledge about particular aspects of the process, right? It’s a lot
easier to try to tell people that voting machines are being beamed
by a laser, right, to change votes if they don’t know how the voting
machines work or if they don’t know about logic and accuracy
tests and they don’t know about all of the mechanisms in place to
ensure the integrity of the results.
And so, I think that focusing on the different ways in which the
process can be exploited helps focus our attention on ways of
combating subversion.
Ned Foley: Great. Thanks, Michael. Janai?
Janai Nelson: Thanks, Ned. I’ll echo my co-panelists. It’s a pleasure to be here,
and I want to thank Rick and David for servicing this question
about election subversion and really training our attention on what
I think is an absolute crisis of democracy.
You know, your question raises an interesting thought about the

hierarchy of elections, and we at the Legal Defense Fund often
emphasize that local elections are critically important and in many
ways affect the lives of individuals more directly than national
elections on a day to day basis. So, the idea that election
subversion at any level is less harmful really is, I think, a
problematic framing of the hierarchy of elections and what
different elected officials mean to different constituencies.
But I will say, if we’re thinking about the actual act of election
subversion and who has responsibility or who has the most
opportunity to subvert elections, I’m particularly concerned about
Congress, and Congress’ authority under Article 1, Section 5 to
police itself. We know that each chamber of the House, each
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chamber of Congress has the right to be the ultimate vote

counting authority for elections to its own chamber and that each
house shall be the judge of the elections returns and qualifications
of its own members. That’s written into the Constitution, which
means there is an opportunity for Congressional members to
advocate their duty and to allow for subversion of elections for
their own offices. And that in and of itself is highly, highly
disturbing and problematic, given Congress’ broad authority and
the checks and balances written into our Constitution.
So, I’m loathe to choose a particular set of elections that are more
problematic, but I do want us to recognize that unique feature of
Congress that makes it even more problematic to have Congress
police itself. But I will also say that we’ve learned from most recent
events that having a Presidential candidate talk about election
subversion, advance the idea of the big lie, call for recounts in
multiple jurisdictions that are absolutely baseless undermines our
confidence in the electoral process more broadly. The pulpit that a
Presidential candidate has is so broad and vast addition influential
that that office in my mind is a significant contender as well for
being one of the most harmful in undermining confidence in our
democracy and fueling the democratic crisis that we face now.
So, those are my responses to that idea of the different possible

ways in which elections may be subverted by different officers and
elected officials, but I do want to underscore that I think any effort
to do that at any level is highly problematic.
Ned Foley: Thanks. Rick?
Rick Pildes: Yes, so first, I want to thank Rick and David and UC Irvine for
putting on this important conference. Most of our discussions so
far have been about the role of various institutions, at least
potentially Congress, courts, and the like.
I actually want to shift the discussion to talk about voters, who are
often talked about as fairly passive figures in this whole scenario
that we’re addressing. And since the mid-2000s, we have adopted
early in-person voting throughout the country. Forty-five states
now have early in-person voting; the only states that don’t are
Connecticut, New Hampshire, Mississippi, South Carolina, and
Missouri. Those periods range from 3 days to 45 days in various
states. And I bring this up because, in my view, voting in person,
whether on election day or through early voting, dramatically
reduces the potential points of vulnerability through which election
administrators or state legislatures or Congress can kind of
penetrate to potentially manipulate the process for partisan
purposes.
The rules for in-person voting or early in-person voting are much
simpler and more straightforward. There’s a lot less room for
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administrative discretion in addressing those issues. And of

course, in 2020, we had this massive surge in absentee voting
throughout the country because of the conditions of the pandemic,
which made it necessary for public health reasons. But we all
know that absentee voting is wrapped up with a whole variety of
procedural issues that are more complicated than in-person
voting. And it’s these issues that create problems for voters,
potentially, who may forget to sign a ballot, create administrative
discretion about whether to view this signature as matching that
signature that’s on file, and just open up a lot more avenues for
the kinds of subversion that we’re worried about.
So, one thing I would say, which applies to all of these elections at
each level, up and down the system, is that voting in-person
through this much more expanded early voting system that we
now have would be a very effective thing that voters themselves
can do to try to reduce these risks. I understand some people will
still have to vote absentee and we will have higher absentee rates
than we did before 2020. But I think this is something that needs
emphasis in these discussions, because it really is very rarely part
of the conversation. So, I wanted to kind of put that on the table as
a starting point.
Ned Foley: Yeah, thanks for that, and I do want to come back to that, but
Janai, can I come back to you? Because I thought the way in
which you framed the risk that Congress might, itself, subvert an
election result that came to it from local government, as I heard it,
worries me, too, to be perfectly honest.
But I was almost thinking, based on the earlier discussion today of

the opposite. You know, we had Secretary Raffensperger talk
about his efforts to do the right thing, and the fear that—and as
Rick put it, the fear that he may be replaced through the upcoming
election with Representative Jody Hice running for that office of
Secretary of State, and Jody Hice being a proponent of the big lie.
And so, which is the bigger fear? I mean, should we hope that
Congress can protect at least Congressional elections and maybe
a Presidential election from the subversion of a Jody Hice, or
should we be worried that Congress is going to subvert the good
work of somebody like an honest Secretary of State, or do we
have to treat both risks equally?
Janai Nelson: That’s an excellent question, Ned. So, first, I wanted to address, I
guess, the idea that Rick put on the table about voters being in
part responsible for helping to avoid election subversion, and I
think that we have to be very careful about those types of
responsibilities being placed on voters, particularly in light of Guy’s
comment that voter suppression is, in so many ways, deeply tied
to election subversion and is, in fact, a tool for election subversion
and therefore, voters have very little agency in being able to
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subvert the voter suppression efforts that are proliferating and

have been well documented across the country, particularly visited
upon communities of color. So, I do want to flag that we have to
be very, very careful about trying to place this responsibility on
voters.
But with respect to your question concerning Congress—

Congress has an opportunity to adopt the Freedom to Vote Act,
which includes several provisions that will increase protections
against subverting Congressional elections. There are specific
provisions that address that issue. You know, we can obviously
talk politics about who might be in office in any given state that
has more extreme views about protecting elections and election
subversion and does not adhere to Constitutional principles, but
I’m more broadly concerned about making sure that we have
institutional and structural mechanisms to prevent that from
happening regardless of who’s in that position.
And if we pass the Freedom to Vote Act, there are some

provisions in there that help in this regard. For example, Section
3206 expands the scope of existing anti-intimidation provisions
that exist in the NVRA to explicitly cover wrongdoing after votes
are cast. And that amendment to the statute would apply criminal
liability to anyone, including public officials who knowingly and
willingly intimidate, threaten, or coerce any person in the
processing, scanning, or tabulation of ballots. And that’s the type
of protection that we need. That’s a way in which Congress can
increase and enhance confidence in itself as a body to police itself
and to police other elections.
There’s also another Section, 34.3 of the Freedom to Vote Act,

which adopts the Voting Rights Act definition of voting that
includes a very holistic concept of voting, including having ballots
counted and included in the appropriate totals of votes cast. So,
there are ways in which Congress can enhance its credibility in
this regard by passing the Freedom to Vote Act, and that has a
cascading effect on state offices, as you suggest, where,
regardless of who’s in position, there is an opportunity for
Congress to have greater oversight over those elections.
Ned Foley: Mm-hmm. Guy, can I come to you to maybe respond a little bit or
to pick up on Rick’s point, and can I ask it this way—I think you
started to helpfully try to, what are we talking about when we talk
about election subversion, how do we define it, are there several
categories? And Bob Bauer on the previous panel drew a contrast
between the way there was a fight over the voting process from
2000 with hanging chads and the fear that that was largely a
problem of mistakes and lack of proper administration. Now, that
could be manipulated by partisan actors at the local level or in the
judiciary for one side or the other, but he was suggesting that the
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nature of the big lie and sort of the denial of election reality that
we’re seeing now is different.
And I took Rick’s point to be, if we could minimize the scope of

ways in which potential bad actors, whether it’s in Congress or it’s
at the Secretary of the State level or wherever, is there a way to
minimize the risk by giving them less that they can fight over, or
do we have to worry that if you, you know, Trumpism, it doesn’t
matter what the truth is, because they're going to say big lie no
matter what.
How should we define the problem that we’re trying to solve, and
is Rick’s point that we should reduce the risk by containing the
risk—do you have thoughts on that?
Guy Charles: I don’t have a problem with the view that different sets of electoral
practices present different types of risks, right? And there’s a
different way of framing—Rick can speak for himself, and he
shouldn’t be blamed, just because he taught me, he shouldn’t be
blamed for the things that I say. But there’s a different way that I
wanted to frame what he said, which is, political elites and political
actors can encourage voters to take advantage of processes that
are less risky and might lead to different sets of outcomes.
So, I didn’t find any tension between sort of the way, at least, that I
posed it and the way that Rick posed it. To me, the tension is
more in sort of the broader contention that these are two separate
things. So, just think about one reason why we might be seeing
electoral subversion. It’s not unrelated to the changing
demographic of this country, right? And then think, also, about
what we believe to be some of the solutions—change the
Electoral Count Act; change some of the underlying, pass either
the For the People Act or any of the different types of legislative
solutions.
It’s really hard to pass these legislative solutions in a context in

which we are very deeply divided and in a context in which voters
do not have a fundamentally protected right to vote. Now, there
are certain things that we ought to and should encourage voters to
do—so, this is where I completely agree with Rick, right? That is,
in-person, early voting is less vulnerable, right? So, you will see
the parties behave in that respect.
So, my point is to say that I think this sharp contrast that we’re
drawing, I don't think it reflects neither the history nor the present
reality. But I don’t disagree that different types of procedures, as
well as their implementation and different sets of systems,
whether it’s at local elections or at the national level, will have
different sets of vulnerabilities, and we ought to recognize that and
focus on the places in which the system is most vulnerable—and
that, I don’t disagree with.
Page 59 of 66
Ned Foley: Before I go back to Rick, Michael, do you want to weigh in on this?
Michael Morley: Yeah, I generally agree with the tenor of the conversation. I guess
the main thing I would add is that when we think about the
electoral process, right, at the end of the day, we need to ask
ourselves what are its goals, right? Obviously, the goal is to
accurately ascertain the will of the people, right? Another
important goal is to ensure widespread fair, broad participation,
right, that we don’t have members of the community, eligible
voters being excluded.
And I think that recent events underscore that another equally

important goal is that it has the appearance of legitimacy, the
appearance of security, that it is able to give certainly, at least the
most voters, the average voter, the medium—however you want
to put it, but is able to give the general public, or at least as much
of the general public as we could reasonably reach confidence in
the outcome, and particularly even if their preferred candidate
loses, confidence that that person actually lost.
And so, I think that oftentimes in trying to craft policies and

determining what the laws are, which laws are good or bad, which
procedures are good or bad, we often place a lot of emphasis on
the first two values, quite importantly, but I think that we need to
place just as much emphasis on that third value of promoting that
appearance of confidence, appearance of legitimacy, allowing the
public to easily be able to accept the results and make it harder,
right, for people to mislead the public and make it harder for
people to try to sell lies and to try to sell conspiracy theories.
Ned Foley: So, Rick, I’m going to come back to you, and you should feel free
to respond to what other people have said, but I thought I might
put on the table also what Congress might do by way of legislation
at this moment. Obviously, the Freedom to Vote Act is pending in
the Senate, there’s the John Lewis bill, there’s another bill that I
think is devoted just to election subversion that really hasn’t
developed yet. People have mentioned the Electoral Count Act
being reformed that hasn’t—no bill to that effect has been
introduced, to my knowledge.
You know, earlier panels talked about the difficulty of overcoming

the filibuster, the difficulty of getting a coalition that includes
enough to get 60 Senators, but people talk about the need to
protect democracy at this moment. And, you know, given what
Guy said earlier about wanting to connect the two topics of
election subversion and the right to cast a ballot, where in
previous panels, as Guy acknowledged, there was some
discussion about divorcing those topics, if you will, and saying, “if
Congress can’t pass a complete omnibus Voting Rights Act,
Page 60 of 66
maybe it should at least try to pass something targeted to the

issue of election subversion.”
Do you want to weigh in on that, as you also have talked about—
Rick Pildes: Well, I think I want to put a slightly different issue into the mix as
well, partly because I’m just not optimistic that Congress is going
to legislate in this area. I agree with the earlier panel discussion,
and I think it’s meaningful coming from Ben Ginsberg that maybe,
on the Electoral Count Act, there could be a broad enough
coalition to do something. I’m not optimistic there, either.
But I think the courts can also do something, here, to help reduce
the risk of electoral subversion earlier on in the process than on
Election Day and the days after the election. And what I mean by
that is, we still have a lot of legal uncertainty that we’re going to
have going into the 2024 Presidential election. And the earlier the
courts are willing to clarify that uncertainty, the better, in my view.
And what I mean concretely, just one example that all of us are
aware of, there is now an ongoing debate about whether the
Constitution gives the state legislatures a kind of independent
power over national elections, particularly over the Presidential
election so that whatever rules they set can’t be altered by state
courts, state Secretaries of State, federal courts, and the like.
This is going to be a constant issue in the run up to the 2024

Presidential election. And unfortunately, the way our court system
works, the courts tend to be very reticent to get involved in
resolving issues until the very, very last minute when they
absolutely have to act. In the context of a Presidential election,
that’s extremely dangerous. The more we know who is going to
win or lose from any ruling, the worse position it puts the court in
and the less likely the result is to be accepted by the half of the
country that loses.
So, I very much hope courts are going to see the need to resolve
a variety of legal issues, but particularly this one, in advance of the
aftermath of the 2024 election. And I think whatever the Supreme
Court comes to as a resolution on this issue, once there’s a clear
set of rules, the various actors will adopt that rule and people will
not be able to try to subvert the election after the fact by arguing
that the Constitution has been violated, once the Supreme Court
has said, “this is, or this isn’t a violation.”
This was a hugely destabilizing issue after the 2020 election. It

became actually, probably, the primary argument once the fraud
issue turned out not to be something that could be backed up in
court. The major issue, then, became, the election had been
irregular and illegal because various actors had changed the rules
the state legislature had adopted for the election.
Page 61 of 66
I think we desperately need clarity on that issue, and of course,

there are others. And so, I think the courts can contribute here by
giving us the clarity so it takes those issues off the table and again
reduces the scope of potential partisan manipulation and
subversion based on legal theories that have been discredited in
advance by the courts. So, that’s something that could be done,
more likely than Congress enacting legislation to address these
issues, perhaps. And so, I do want to put that into the discussion,
as well.
Ned Foley: Yeah, thanks. We’ve got a lot of things on the table. Janai, if I can
come back to you—can we solve this problem, as Rick has said,
without Congressional legislation? I mean, Bob Bauer was talking
about mobilization and the previous panel was thinking there has
to be actors other than Congress if we’re going to succeed here.
So, I guess part of the question is, can we save democracy

without Congress coming to the rescue? And if we need Congress
to do something, is it better for Congress to sort of do half a loaf or
at least some of the things that are on the list as opposed to the
entire list? How would you prioritize what we need to do going
forward?
Janai Nelson: Well, one of the things that I think weave some of this together is
that what makes election subversion much more difficult is when
there is a clear winner, when there is an overwhelming majority.
And so, legislation that enables more voters to have access to the
ballot and secure access to the ballot—so, increasing the methods
of enabling voters to cast a ballot will, I think, in many ways take
some of the confusion and the uncertainty off the table. It won’t
rule it out entirely but it certainly makes it much harder to contest
election results when you have an overwhelming majority in favor
of a particular candidate or a ballot reform.
But I do think that—so, in that regard, I do think that Congress

needs to act, and Congress needs to make sure that the voter
suppression efforts that have galvanized so many conservative
legislatures, there needs to be a federal solution to that. Short of
that, we do have courts to rely upon and, as we know, when we
saw efforts to abuse executive authority in the last administration,
many courts across the country stepped in. All the courts denied
those efforts to overturn election results in a quite unanimous way.
And so, I do have some hope that courts will play a backstop role
when we see this inevitably occur in 2024 and potentially also in
2022. I don't think we should only be focusing on the Presidential
election, because I suspect that some of this playbook will be
teased out in the upcoming midterm elections and we’ll be starting
to see some of the hints of undermining confidence in our election
process as early as 2022.
Page 62 of 66
But I do think that there’s a long history that the court, the
Supreme Court in particular, has had in pushing back against
wrongdoing in vote counting and certification processes well
before Bush v. Gore. The problem, however, is the crisis in
confidence in this particular Supreme Court, and I will point to the
Brnovich case that the Court just issued at the end of this term,
and the idea that the Court really invented new rules around
Section 2 of the Voting Rights Act that are completely unmoored
from its earlier precedent. And that gives me great pause in
relying on this Supreme Court to necessarily play the backstop
role that it traditionally has, and that it will necessarily be viewed
as an impartial actor.
So, to answer your question, I’m really of mixed views about

whether we can rely on another institution outside of Congress
and without federal legislation to help put an end to this.
Ned Foley: Michael, can I come to you next to weigh in on this? Do you think
we can protect sufficiently against election subversion, whether
in ’22 or ’24 or beyond, without some form of new Congressional
legislation, you know, relying on the courts or maybe other means
besides Congress? And if we need something essential from
Congress in your view on this, what is that piece of Congressional
legislation that might have some prospect for enactment?
Michael Morley: Well, particularly with regard to Presidential elections, I think a lot
does come back to the Electoral Count Act, and certainly, if there
is any aspect of the process where we should be able to have
easy bipartisan agreement where there isn’t an obvious partisan
valence to clarifying particular parts of the act where there isn’t
any particular political party that can easily predict that it would
systematically tend to benefit from certain clarifications to the act.
I think the ECA, amending the Electoral Count Act, would go—that
should be the low-hanging fruit. That should be a reform that could
go a long way toward limiting or even eliminating opportunities for
the types of controversies that arose in 2020, and even to a lesser
extent in 2004 with regard to objections on the floor of Congress,
trying to get electoral votes thrown out.
But then one of the main problems—and obviously, Ned, you are
one of the nation’s leading scholars on this, right? One of the
major problems with the Electoral Count Act is that most of the
key terms are basically legal black holes, right? What are the
minimum legal requirements for something to be a valid slate? I
don't know. What does it mean for a slate to be lawfully certified?
What does it mean for electoral votes to be regularly given? These
key terms, they're vague, they're amorphous, they're undefined,
and as a result, you have this law that’s supposed to be laying out
a neutral, fairy uninteresting process, in fact, allows for the
Page 63 of 66
opportunity for chaos, because everybody’s free to interpret these

vague terms for themselves.
So, trying to get some clarity on the ECA, trying to provide some
greater specificity to the ECA so we know what the—to echo on
Rick’s point, so at least we know what the rules of the election are
before the election is held, before we know which candidates are
going to benefit from particular interpretations. I think that that
should be the low-hanging fruit that would, particularly given our
experiences with 2020, would be one of the most urgent things on
my agenda.
Ned Foley: Mm-hmm. Guy, do you want to weigh in on courts versus

Congress and the path forward?
Guy Charles: You know, I don’t have that much to say. I mean, I agree with my
co-panelists. I think it would be great if we can get legislation in
this area, whether it’s the Electoral Count Act that Michael has
characterized as low-hanging fruit, whether it is one of the major
pieces of legislation. I also agree with Rick. I’m not optimistic that
we’re going to see, even on what one could say, to quote Bob
Bauer, that there is a mutuality of interests, here, on the Electoral
Count Act. I’m just not optimistic.
I also agree that the Article 2 question is extremely important, and

even the broader point that Janai and Michael and Rick have
made that getting clarity on the rules at the very beginning is
important. And the one place of vulnerability on what can
legislatures do, that’s a live argument. It’s live not because I agree
with it or because I think that there—right, but it’s live because
there’s partly a tradition, but there are also, you could count at
least two, maybe four votes on the Supreme Court on that
question.
So, I think there are other areas of vulnerability and the problem
is, it’s not clear that we have solutions. So, it’s not clear that we
can get a legislative process solution out of Congress. It’s not—we
want the Court to provide us with clarity, but we see that the Court
is divided. And I think Bob Bauer did make an additional important
point earlier today as well, saying, “Look, the Court might feel
differently about some of the voting rights issues versus some of
those other questions.” But the Article 2 question is actually one in
which we might see it go in multiple directions, right? So, it’s not
clear that they're going to be useful there.
Civil society—Sarah made a wonderful point in the earlier panel,

saying that, well, first, you had the corporations coming out and
saying, “We’re not going to support anybody who subverts
elections” and then everybody forgets and backs off, right? So, it’s
hard to find where is the place that we can realistically say? The
best that I can offer is the state legislatures that are controlled by
Page 64 of 66
Democrats—that’s the best that I can offer in terms of a place

where you can get realistic reform to assure at least in those that
there is clarity of rules, that there is some model process that is to
be followed.
So, other than that, I think it’s hard to identify a place that we can
put a lot of faith in terms of actual reform.
Ned Foley: Mm-hmm. We have just a couple minutes left and Rick, I’m going
to come back to you for a point that, again, came up in earlier
panels, but was echoed here a little bit, and that is, the best way
to avoid election subversion is by electoral victories that just can’t
be questioned. But electoral victories are in part determined by the
electoral systems and rules for running in elections. And Larry
Diamond, on a previous panel, made a plea for ranked choice
voting and, as I think about the race between Secretary
Raffensperger and Jody Hice or other races like that, it does seem
to me that the mechanics of electoral systems make a difference.
So, as we think about the strategies for dealing with the problem
of the big lie and election subversion, should we be thinking about
the rules for counting votes and making sure that we have
accurate results, or should we be thinking broader in terms of how
we run elections in general?
Rick Pildes: Yes, I think that’s a good question. So, I think our electoral
institutions, the way they're designed right now, create tendencies
for factional candidates to be able to get elected to office who
actually are not the candidates that a majority of the electorate
would support if we had different structures for voting, for
example. The nature of our primary election process is one
example of that.
So, as some of you know, I have been, under a separate hat, very
concerned with political reforms that would reduce extremism in
American politics, and I have written on a number of different
topics in that area where I think changes to the structure of our
elections could make it more likely that candidates who actually
have a broader appeal to the electorate get elected. I think those
candidates are probably less extreme and less likely to participate
in election subversion activities. So, that is a whole big additional
topic, but I agree with your instincts about that, that we do need to
be thinking on that front, as well.
Ned Foley: Thanks. Well, I see Rick Hasen coming back on the screen and
so, I want to turn it back over to him, but I thank my co-panelists
for a very lively discussion, putting a lot of issues on the table, and
I hope we can move forward to pursue this important topic further,
so thank you.
Page 65 of 66
Rick Hasen: Thank you, Ned, and thank you to the panelists. A lot of things to
think about. I think we should think about this as the beginning of
a discussion rather than the end of a discussion. I know that we at
the Fair Elections and Free Speech Center at UCI Law are going
to be thinking about these issues, and we look forward to your
suggestions of how to move forward from ideas on a screen to the
reality of protecting our elections and assuring that people can
vote fairly.
I also wanted to direct you to the Fair Elections and Free Speech
Center website, law.uci.edu/fefs, where we have events coming
up, including a three-part series on disinformation in American
elections, and the first panel will feature Michigan Secretary of
State Jocelyn Benson, joined by Neal Kelley, who’s the Registrar
of Voters in Orange County, California. We have a lot coming up.
We appreciate everyone’s attention today, we appreciate your

interest in this. It is obviously something that people are
concerned about and we want to do things that are constructive to
help keep American democracy strong and vibrant.
Thank you, all, for coming. We’ll see you again soon.
[End of Audio]
Page 66 of 66

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Election Subversion: Is American Democracy in Danger?

September 24, 2021

Howard Gillman: Good day, everyone. My name is Howard Gillman, I am the

No one doubts that research universities have an obligation to

There is little doubt that one of the most important challenges

This conference is one of the very first events hosted by the

I have no doubt that the very future of American democracy is at

the fragile safeguards that allowed, just barely, for a successful

I’m Rick Hasen, Professor of Law, and Co-director with my great

Today’s event, “Election Subversion: Is American Democracy in

Why a conference on election subversion? The United States

simultaneous elections for President when we hold our elections

The conduct of former President Donald J. Trump in repeatedly

Those Republican elected officials who stood up to Trump in 2020

This conference asks how big a problem election subversion may

Brad Raffensperger: Good morning.

And I want to ask each of you, starting with Secretary

There were a lot of people, obviously the President in particular,

As everyone knows, the President called and asked me to find

We have to understand that we run elections, we have 159

people, we had in one county, Bartow County went 75 percent for

Isabel Longoria: Correct, yeah, Harris County, which encompasses Houston,

So, I, in my capacity in November, was there as a Senior Advisor

We were able to breed those innovations and even during this

as medical workers who didn’t want to expose people in the

But that’s it. There is no large fraud, there’s no Russia, there’s no

Interestingly enough, the December runoff elections, the direct

Rick Hasen: Secretary Raffensperger, turning the same question to you—do

I think the challenge that we have as Republicans is that right now

So, I think we need to look forward. I think that we need to really

How do you win a Republican primary? It seems like you have to

And so, how do we understand kind of the pressures you’re under

The one thing that we did is, we do have an accountability

So, that, I think, answers most of your questions there, but if I

But I’m going to stand on the truth. I understand that eventually it

As a Republican, I was disappointed, but those are the facts. A

Rick Hasen: Turning back to you, Administrator Longoria, you’re in a kind of

You know, innovation is a way of thinking. It’s a belief in a system,

That way of thinking, of innovating, of jumping through hoops of

So, now, moving forward, you know, we have engaged in this

I struggle with this question. I know you pitched it to us because

on the integrity of any one individual. And I think that’s what

So, I think Secretary Raffensperger might join me in that we have

And now, we’re facing a situation where, because of the difficult

This is not done, something in Washington, D.C., 2,000 miles

But if your people do something that doesn’t meet those high

Rick Hasen: Turning to you, Administrator Longoria—what do you think, how

I am actually pretty ruthless of going through, since I’ve been

Same with our staff, right, holding ourselves to the accountability

So, there’s nothing we can do legislatively to mandate someone’s

Good idea, bad idea? Starting with you, Administrator Longoria?

Rick Hasen: Secretary Raffensperger?

So, we have to build a bigger coalition, we have to be happy

It is a little redundant. We do risk-limiting audits not kind of in that

So, you want to add a risk-limiting audit which says, post-election,

And I wonder if, Secretary Raffensperger, if you think that those

And instead of doing a 90 percent risk-limit audit, which would’ve

I also could’ve chosen any statewide race. I chose the President’s

It’s a great way to build confidence. We have several County