I did this Q and A with Politico’s Zack Stanton, and here’s the introduction before the Q and A:
Rick Hasen isn’t getting much sleep these days.
One of the nation’s foremost experts on the laws that hold together democracy in America, Hasen used to be concerned about highly speculative election “nightmare scenarios”: the electrical grid being hacked on Election Day, or the pandemic warping turnout, or absentee ballots totally overwhelming the postal service. But now, what keeps him up at night aren’t fanciful “what if” exercises: It’s what has actually happened over that past nine months, and how it could truly blow up in the next presidential election.
For the first time in American history, the losing candidate refused to concede the election — and rather than dismissing him as a sore loser, a startling number of Americans have followed Donald Trump down his conspiratorial rabbit hole. The safeguards that ensured he left office last January after losing the presidential election may be crumbling: The election officials who certified the counts may no longer be in place next time he falsely claims victory; if Republicans take Congress, a compliant Speaker could easily decide it’s simply not in his interest to let the party’s leader lose.
“You could look at 2020 as the nadir of American democratic processes, or you could look at it as a dress rehearsal,” says Hasen, a professor of law at UC Irvine.
To understand this fragile moment for American democracy, you could take a 30,000-foot view of a nation at the doorstep of a constitutional crisis, as Robert Kagan recently did for the Washington Post. Or you could simply look around you at what’s happening at the ground level, in broad daylight, visible to the naked eye, as Hasen has been doing. As he sees it, it’s time for us all to wake up.
“I feel like a climate scientist warning about the Earth going up another degree and a half,” Hasen told POLITICO Magazine in an interview this week. “The rhetoric is so overheated that I think it provides the basis for millions of people to accept an actual stolen election as payback for the falsely claimed earlier ‘stolen’ election. People are going to be more willing to cheat if they think they’ve been cheated out of their just desserts.”
Hasen has ideas about how to preempt some of this — they range from the legal to the political, and are the subject of a major conference that took place Friday at the Fair Elections and Free Speech Center, which he co-directs at UC Irvine. But even as he and other elections experts warn of a three-alarm fire, he’s troubled that Democrats in Washington seem to lack the same sense of urgency and focus.
“I think this should be the number-one priority, and I thought that Democrats wasted months on the For the People Act,” he says. “The Democrats’ answer … is ‘Well, the Democrats just have to win elections.’ There needs to be a plan B to that.”
If the same state and local election officials are in place in 2024 as in 2020 — many of them Republican — Hasen is confident they would be able to stand up to Trump’s pressure to disregard the vote count and declare him the winner. But Hasen isn’t confident they will be in place. Many election officials are fleeing and, he says, are “being replaced by people who do not have allegiance to the integrity of the process.” (We got a taste of that this week, when Texas announced an “audit” of the 2020 election results in four counties some eight-and-a-half hours after Trump publicly called for one despite no serious evidence of problems.)
Or consider how things might’ve played out in January if Congress’s makeup had been different. “What would have happened if the election was exactly the same, except Kevin McCarthy was Speaker of the House?” Hasen asks. “I don’t know that we’d have a President Biden right now.”
What realistically can be done to secure American democracy at this fragile moment? POLITICO Magazine spoke with Hasen this week to sort through it all. A transcript of that conversation follows, condensed and edited for length and readability.