How to Protect Our Elections

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0:00:07.9 Aaron Powell: Welcome to Free Thoughts. I’m Aaron Powell.

0:00:09.9 Trevor Burrus: And I’m Trevor Burrus.

0:00:11.9 Aaron Powell: Our guests today are Walter Olson, Senior Fellow at the Cato Institute, and Andy Craig, staff writer at the Cato Institute. Welcome back to the show, gentlemen.

0:00:19.3 Walter Olson: Thank you.

0:00:20.7 Andy Craig: Thanks for having us.

0:00:22.4 Aaron Powell: Over the course of American history, we’ve had a lot of elections, and most of them seem to come and go without widespread hand-​wringing about fraud and subversion, but that’s changed recently. Are elections really under more threat than they have been, is there more fraud than there used to be?

0:00:43.0 Walter Olson: Powell the paradox is that there is probably less fraud than there was over many periods of American history, but there is also less public trust in the legitimacy of outcomes, so they are moving in inverse directions as it were. And first briefly, how do we know that there’s less fraud? Well, we have better ways of auditing and tracking, we have various indicia that are well-​known among campaign consultant types, of whether or not there’s likely been hanky-​panky. And the level is not zero, but the level is affecting fewer elections than was true over much of the 19th and 20th centuries. We also have, and here, you have to turn to public opinion polls for what they’re worth, but I think they’re pretty unmistakable, that not just on one side, although it’s been very, very prominent on the Republican side lately, there is generally a greater suspicion level. There is a greater willingness to believe in unproven theories, not just as we saw with the election a year ago, but also things like, “Did the Russians literally tamper with vote counts?” four years before that. Well, a significant chunk of American people in impulse thought that that had happened, although there never was any good evidence for it. And it filters down to a lot of related questions. People do not have the degree of trust in election outcomes, even though it’s very hard to find evidence that the election outcomes have been degraded in any way as far as the process of counting the vote.

0:02:25.9 Andy Craig: And on that point about the history, if you look back, I mean, as relatively recently as the 1960 election, there were shenanigans, [chuckle] there was old-​fashioned ballot box stuffing, there was violence at the polls, and none of that sort of thing really applies today. People who watch closely the actual process of counting the votes, it’s remarkably transparent, there’s very, very little that you will find in terms of malfeasance there, or fraud. That doesn’t mean there aren’t legitimate concerns about what the rule should be and what the process should be, but when we look at what happened in 2020, the actual counting of the popular votes is the thing that went least wrong, everything that happened was after that. It was the procedural wrangling about the Electoral College and what Congress did, then trying to have courts overturn the results. So that’s where we’ve recently really focused in on, and that there’s some good reform efforts of it.

0:03:38.7 Trevor Burrus: And also we don’t have things like Tammany Hall and other types of machines that were experts at that kind of rigging, nor do we have the kind of campaign stuff that I often… Campaign finance stuff that I often remind people when I talk about campaign finance. What you gave to a Senator in 1870, like Roscoe Conkling is a good example. And also, what they spent on the election, and then they just went into their… The new wing on their home. They got to keep that money in a way that just does not happen today. I think the… One reason we wanted to talk about this thing too, is that we of course have… And all of us here are very aware and concerned about where the Republicans went vote on after the election and are still going today. But the interesting thing is that the left has their own problems in thinking about what legitimacy of elections is too, especially in the sense of ‘voter suppression’. And I’m putting that in scare quotes, because it seems to me that many of my friends on the left believe that there is extremely widespread voter suppression, to the point that we had, say, Stacey Abrams in Georgia, I think still refusing to concede her loss and that. So I guess the question here is, What is voter suppression?

0:04:53.4 Walter Olson: Your question has helped to answer itself because this is a term that is not well-​defined and that is defined in terms of those who are on the warpath seeking federal legislation as things like not having enough new days of early voting, not moving fast enough toward no reason absentee balloting. And just briefly, and I have expressed a lot of frustration about the suggestion that American politics has become illegitimate because of debates that are very well within normal range. The turnout levels, and of course, with 2020, whatever else went wrong turnout didn’t go wrong. It rose tremendously, and it rose among all races. There was very little evidence that anyone in a systematic way, was unable to cast a vote, that wanted to. But something else was going on that was productive of a great deal of wrangling which is that the pandemic had forced a confrontation with issues that had been developing more gradually toward convenience voting, and…

0:06:12.3 Walter Olson: Let me plant the flag right here. Unlike many of our conservative friends, I don’t think there’s anything horrifying about making it easier in work committee, and to vote. With modern times we are making it easier to bank and we’re making it easier to shop, and I don’t think it’s that shocking. So long as security is in there, and we can talk about that, but I am not convinced that security has collapsed just because you get more convenience voting.

0:06:38.9 Walter Olson: So this had been developing anyway, a couple of states have moved to all mail voting, for example, Oregon and Colorado, I think. And those Western states, which often have not had as great a burden of machine and corrupt politics to overcome, so they can be a little more trusting sometimes in jumping into new procedures. But, this was already getting some traction before the pandemic, but with the pandemic, it was clear to nearly every state that you had to at least bend the rules this once in order to make absentee and early voting easier, so that there would not be a crush of people standing next to each other, amid a pandemic spread by respiratory exhalation. So, that left the question of, to what extent should these be made permanent. Now the indications were that, and let me talk about the bad and the good, because particularly during the primary season in 2020, there were a bunch of car wrecks in which the procedures did not work well, there were delays, and long lines, and various other things. For various reasons by the actual November election day, whether it was luck or skill, those did not characterize election day.

0:08:02.8 Walter Olson: So, the good side was that you got a lot of people doing convenience voting that they were generally pleased with the… Despite the few reports of lines at polls, that was actually more of a problem in earlier elections. But of course, when the pandemic eases you have the question of, do you go back to old circumstances? And here you have a bunch of different things, it can cost more money, obviously, to set buildings aside, and set election personnel aside for many days of early voting, especially for smaller counties and that sort of thing, it can be a very real burden. And then, so you had a bunch of places saying, “Okay, we did it, we’re proud that we did it, but we don’t want to have to go on doing the same thing in every future election.” Especially for the primaries, where only a few people maybe turning out anyway, and we’re supposed to open for 15 days for early voting, for that too. And then on the other side, you had people who see this in a different way, because they see the expansion of these things as taking us further toward full democracy and as overcoming voter suppression.

0:09:22.0 Walter Olson: They have in mind terrible anecdotes of people showing up on election day and running into bureaucratic mazes, and they think, “Make these other things more convenient for them, and there will be fewer and fewer instances of this kind of frustration where someone gives up after facing an hour of bureaucracy.” And they’re probably right in the sense that if the goal is to minimize that, then yes, keeping all of these other things maximally convenient would be a way of doing that. To me, there are legitimate trade-​offs in which I can accept the people of good faith would prefer pulling in one direction or another, and the answer, the ideal answer may not be the same in the populist urban states as in the farm states, and so forth.

0:10:10.4 Andy Craig: And regarding the democratic rhetoric on this, it’s been very frustrating. The… Joe Biden came out and called it Jim Crow 2.0. And I think that’s crazy in how much it cheapens how bad actual Jim Crow was, compared to these debates. You had single-​digit black voter registration in the south, and things like that. These arguments, the things that are in the Democrat, the freedom to vote Act, and the related John Lewis bill, are normal partisan wrangling over the rules that, really, both sides inflate how much it matters. You’re talking about fractions of a point, which can matter in a close race, but there is not any kind of wholesale mass disenfranchisement going on. And that’s a big… It’s a big difference between that and what was attempted in the 2020 election, which is, we’re just gonna throw out millions of people’s votes and not count the results from whole states. That’s a kind of fundamental higher order threat than wrangling over early voting hours or voter ID laws. On the merits, I tend to favor making it easier to vote, also, I think same day registration is fine, I think no excuse absentee is good, but these are not things that the states got so wrong that there needs to be a new, very intrusive set of… Very detailed set of federal mandates.

0:11:53.0 Andy Craig: When you look at what happened in 2020, the states didn’t get it wrong. It was Congress, and the President, and an attempt to use the federal courts. So I think, when you’re looking at what needs to be fixed, it’s really not any of these voting law procedure things, it’s everything that happens after that.

0:12:12.3 Aaron Powell: But on this issue of the concerns we’re hearing from people on the left, I mean… So yeah, we’re not in Jim Crow anymore, but Jim Crow wasn’t all that long ago. And there are certainly southern states that still have… That still behave as if they wish Jim Crow was around. We have the… These debates are happening in the aftermath of the 2020 election, when you have the President specifically calling out, the problem county in Michigan just happened to be Wayne County, which is Detroit, which is where, overwhelmingly, the black vote in Michigan was. And so it doesn’t seem unreasonable to think that the Republicans have made it clear that if they can get away with excluding black voters one way or another, they’ll do it as a way to win elections.

0:13:00.6 Walter Olson: I would raise some doubts about some of the factual premises in that series, because first, I do think that it overstates things a lot to say that Southern politics currently involves one party that actively seeks the disenfranchisement of the minority race. I don’t think, for example, that in Georgia, which is the state that everyone agreed to argue about as emblematic, although it was one of many states. The Georgia arguments were frustrating, in part because even after some retrenchment and a few issues, Georgia remained more liberal than the Alberta State, more liberal than lots of Northern states. And the few ideas that seem to have some possible racial valance, like not having Sunday voting prized by many churches in Georgia died a speedy death after… And did not muster even Republican majority support, so…

0:14:03.5 Walter Olson: And in Michigan, while we are getting into the bizarre details of Trump’s false claims, which could detain us all afternoon, if we wanted to try to list even half of them, the Republican conspiracy theory that had… Turned out to have legs about Michigan was not Wayne County were big as it was, there were also lots of people watching, it was about Antrim County, Michigan. There is no reason for you ever to have heard of Antrim County, Michigan. It’s a tiny rural county where there was a malfunction in reporting the votes. And, my goodness, you would really have thought that it was the train robbery of the century to hear the MAGA world go on about it. But this was a Republican county that voted for Trump, that through mechanical hand error recorded a wrong vote and took it back. It was like 15 minutes later. It was… In a trivially short amount of time, they noticed that they had mis-​entered a thing by hand.

0:15:00.8 Walter Olson: And the Trump… The conspiracy people were off and running, and they’re still going a year later with claims that what happened in Antrim County, Michigan was somehow nationally emblematic. Let’s spend a few minutes on those Trump theories, because they… To me, I follow them for the same reason the Jesse Walker follows great conspiracy, and millennial utopian schemes through American history, which is just so darn fascinating to see the workings of the eccentric mind. Trump launched as many different conspiracy theories as you could find on social media. He endorsed them all, if… So long as they were favorable to him. And when the audits had finally caught up, and as you have probably heard, in their various ways, Arizona did an official audit, Georgia did a hand recount. In Wisconsin, it was one of the interesting cases because the right of center think tank, I know some of the people there, and they are serious Conservatives, who are also thoughtful about trying to do a good job, they did a book-​length audit of what happened in the Wisconsin election. And they found some things to object to, where the big cities were stretching what they were legally allowed to do as far as voter convenience.

0:16:20.6 Walter Olson: But then they looked into particular things. They said, dominion voting machines, that would… Became the source of the single biggest conspiracy theory, were used in, if memory serves, something like 14% of Wisconsin voters, which tended to be in the rural counties. Trump did great on all of the dominion voting machines as a result. This information just does not filter back through the… [chuckle] The conspiracy filters kind of are meant to exclude the reverse osmotic flow of information that would [chuckle] Refute it too badly. But this is the way it is. And again, that dominion one, although it tied into juicy theories of manipulation by the Venezuela’s dictator, they were basically just grabbing at everything. It wasn’t particularly that they had a lot of racial theories. And indeed, most of the Trump conspiracy racial… Conspiracy theories did not particularly lead in a racial direction. He was just grabbing at absolutely any piece of flotsam that was floating along.

0:17:20.7 Andy Craig: And on Aaron’s question about kind of the need to have federal oversight, I do think it’s worth emphasizing that there absolutely is a legitimate role for very important historical reasons we’re all familiar with, that there are… There is a role for the federal government in making sure states can’t do some awful things. But we do have a pretty solid set of those rules now, under the 14th Amendment, under Federal court rulings, under the parts of the Voting Rights Act that are still in place, even after the Supreme Court’s, Shelby County ruling. One of the big debates is about whether or not there’s a need for pre-​clearance, which is something that was created under the original Voting Rights Act, and then the court struck it down because they said their formula is too outdated for which states are covered. But even that, the substantive restrictions on what states aren’t allowed to do are still largely there. You can still bring a lawsuit, and people do still bring those lawsuits and win them. And so I think there are legitimate debates to be had there. There are policy questions, and I don’t doubt that Republican state legislators, just like Democratic state legislators, fight for every little scrap of partisan advantage they can get in the rules. But there’s still a big gap between the sorts of things we’re seeing and the kind of historical worst-​case scenarios.

0:18:55.0 Trevor Burrus: On that point, it’s something that strikes me in a sort of broader… Taking a step back where we talk about voting rules or anything that affects turnout, the democratic process in general. And it seems that we’re stuck at this impasse where you see the partisan advantage opposing any rule that you think might have a partisan advantage to the other side. No principle really involved. And sometimes I think that voter ID is a good example, a widespread belief that it disproportionately affects African-​Americans and therefore African-​Americans, if they disproportionately vote Democrat, therefore it needs to be opposed because it hurts Democrats electoral chances. But I feel like if the opposite were true, if voter ID helped electoral… Were perceived to help electoral chances of democrats, they would flip their position on it in a microsecond, and that we can’t really get past some of these debates unless we were in like a rousy… An original position where everyone stepped back and didn’t know what party they were in, and then had to agree to the rules of the game before you played it, and then say, “Okay, is voter ID a good idea in the abstract, aside from whoever advantages it? Can we get through some of these impasses while the people playing the game are involved in the game or the outcome of the game?”

0:20:14.5 Walter Olson: First, let me concede consider that you are right about the motives of a lot of the actors who are tussling over this. They are indeed operating on principles of self-​interest, and they are often carrying forward what they all learned when they were getting into politics about the stereotypes of high turnout helping democrats and low turn out helping republicans and the difficult voting helping Republicans and easy voting helping Democrats. And I’d like to point out partly because it annoys them and partly because I think it may be a way past some of these impasses that a bunch of this simply no longer has good evidence that it’s correct. And just to reel off the tooth that we’ve been talking about. A big study of voter ID published in The Quarterly Journal of Economics last year found that both sides were right and both sides were wrong. Voter ID did not seem to have any important results on turnout nor did it have a result by race on turnout, people went ahead and voted. But at the same time, it had no impact on apparent fraud sold in that respect, the conservatives have nothing to cry about. And it is a very popular policy, but as far as pursuing the advantage of one party over another, it appears to be an almost completely useless than to argue about it.

0:21:48.3 Walter Olson: And a turnout, which classically is the issue where people did perceive enormous party advantage seems to be changing rapidly as the nature of the party has changed. In our parents’ day, or if you’re as old as me and much of my own earlier day, it was probably objectively true that Republicans has the more affluent and better educated policy or the party could take more time off of work more easily, they had cars, they could come out in the pouring rain. Republicans had the kind of personalities that would have them come out and vote, no matter how boring the candidates were. And so low turn out elections were in fact good for Republicans. Republicans would hope for rain for all of those reasons, but we all know that we’ve just lived through a period in which the Republican party, like conservative parties in a number of other Western democracies has flipped, it represents less affluent, less educated, more economically struggling people, and they seem to be living up to the classic profile of marginal Democrats, which is it’s harder to get them out unless there’s something very exciting going on. They will stay home in a boring election, they will wait to see if there’s anyone they cared to vote for before coming out. And so five years from now, the emergent wisdom may be just the reverse of the old for the moment, we’re close enough to even-​steven but I would like for them at least to unlearn the old lessons.

0:23:25.5 Andy Craig: Just that on the point of the popularity of it, I think part of what’s happening on the messaging failure, Walter mentioned that voter ID is very popular, and I’m skeptical of it on the merits. Like you said, it doesn’t make a ton of difference either way, but if you just pull it, it pulls overwhelming majority support, including among African-​American voters. So when the Democrats are saying that this is some catastrophic threat to democracy, particularly when we all are facing other actual serious threats to democracy which we can get into. It falls flat, it’s not motivating people with that message, when that’s the sort of thing they’re focusing on.

0:24:12.5 Trevor Burrus: Maybe it’s the curse of actually being non-​partisan when I was asked to do a Washington Journal, maybe five, six years ago, and on voter ID. And so I was like, “Okay, I like Washington Journal, even the crazy people who call in, and I’ve spent two weeks reading everything on voter ID, and I’m like, Exactly that conclusion. There’s not much voter fraud and there’s not much voter disenfranchisement, and the level of heat in this is bizarre, unless I think explain it from a partisan standpoint, like Hans von Spakovsky at Heritage seems to believe that there’s much voter fraud, as many people on the left think there is voter suppression, and that’s just not true across the board, I guess, these very strange beliefs.

0:24:55.9 Walter Olson: And let’s talk voter fraud because I am conservative enough that first, I want them to always keep in mind the possibility that if you stop paying attention to vote fraud you must start getting a lot more of it, it’s the old principle of our town hasn’t had a bank robbery in 20 years, but you don’t give up on bank security. And I know that Hans and others are able to point to things that have led to convictions and jail terms. What I found interesting about a lot of those is that so much of it seems to go on in the…

0:25:33.5 Walter Olson: Some of the older urban machines, but for things like primary votes, where those are the ones that often have led to the guilty pleas because no one comes out. The vote totals are so small that it’s tempting to actually just steal 50 because 50 might be enough to determine in a city council race in a primary. You often will not have the other party showing up to monitor the thing because they don’t care. There isn’t the incentive that a two-​party race does, and so… Yes, it’s worth remembering the Philadelphia cases, for example, where there were some recent guilty pleas and the few other instances. I would worry about things even if they’re not changing election outcomes, for example, I worry about money changing hands through the so called walking-​around money, even if in practice, the voters would be voting for the same candidates, and certainly they’re not necessarily voting for a different party because of the walking-​around money. Nonetheless, it’s worth taking measures against.

0:26:49.3 Walter Olson: And I will also say, I think the conservatives have a wider point that should be shared by non-​conservatives on so-​called ballot harvesting. That is the practice by which one person, aid person or an activist can go around and collect literally 100 or 200 ballots at people’s homes or at the workplace, if it’s a union organizer or for that matter, as far as I can see, it’s legal in ballot harvesting states for the boss to come around and say, “I wanna collect everyone’s substitute ballot.” Well, there are obvious issues of pressure and privacy. They’re supposed to seal the envelopes, but it’s very hard to prevent some of the abuses where someone stands there and watches, and among the things that have already come out are instances in which the ballot was not effectively sealed, the person, as so many people do, voted only for the top of the ticket and the helpful ballot harvester filled in the other races below the top of the ticket. Again, no one’s getting to be president this way that wouldn’t have been President otherwise, and yet it’s worth worrying about.

0:27:55.8 Walter Olson: Especially, one of the funny things about the whole absentee ballot debate is that it took until the late 19th century to get the secret ballot. Before voting methods often involved trooping into a public place, dividing, going to one box or another box, depending on which ballot you were dropping in, while the town party bosses sat there and watched to see which party you voted for. And one of the big reform clauses of the late 19th century was the truly secret ballot, where even your husband or wife would not see how you voted. And of course, there was a logic there because economic dependence could often make people feel that they’re not entirely liberated but the phrase was, it’s just you alone in the voting booth, your husband doesn’t have to know…

0:28:44.3 Walter Olson: Your boss doesn’t have to know how you voted. Now, I like that, it’s part of my crusading liberal sense that we made actual progress on that, and I don’t mind relaxing the absentee voting thing, even though it will lead to a few instances of pressure within families. I think by and large, America is beyond the point at which pressure goes on within families. But I don’t necessarily wanna open the flood gates to the, “Oh, and you can collect and watch 100 votes”, you can watch someone in your family while they fill out the thing as soon as it begins moving to strangers and in the workplace, again, dangers.

0:29:26.3 Andy Craig: I’ll just reiterate the point, it’s very true, which is that to the degree these things are having an impact and things happen that shouldn’t have happened, and largely it is local races. I’ve seen county alderman races, I’ve seen state rep races where I felt something untoward had possibly happened or at least that the rules weren’t followed and that it might have affected the outcome. I think there’s absolutely good reasons to do zero in on that. But at the scale of a statewide race or a presidential election, it fails for the same reason most conspiracy theories fail. You would have to have thousands of people in on it, and they all have to keep their mouth shut, and that’s just not possible. It’s in these tiny little local races where you have a county recorder or somebody like that, and they’re there in the back room, counting votes and there’s not anybody watching them. I do think that sort of thing can still happen, and there are good reasons to keep an eye on that and to have best practices to avoid it.

0:30:31.8 Aaron Powell: This conversation puts me in mind of something that our colleague, Alex Nowrasteh has remarked on in the immigration context, which is that people’s… Kind of how well immigration polls often doesn’t really track how many immigrants are coming in, but instead perceptions of chaos at the border. If people think that the border is chaotic, they tend to be anti-​immigration, but if they think that people are coming across in an orderly controlled way, then they’re much more willing to trust the process.

0:31:04.3 Aaron Powell: And it seems like a lot of what we’re seeing lately with these very heated arguments about elections is almost… Is like a legitimacy crisis as opposed to an actual fraud crisis, and people have become convinced, as we pointed out, almost entirely wrongly that our elections are all just rife with fraud and stolen all the time and so on, and that probably then makes them more willing to listen to not just crack pot theories, but be persuaded by actual bad legislation designed to get this… Get our system under control. And so I wonder if something like voter ID, which as you’ve pointed out, it doesn’t really seem to have an effect one way or another, but lots of people like it, and it might make a lot of people think, Oh, well, if we have voter ID our elections… There’s less fraud, would be a way to… You pass it, it doesn’t really do anything, but it makes everybody feel like elections are more legitimate, and then they’re less likely to do things that are actually gonna undermine elections.

0:32:09.9 Walter Olson: Well, I think there’s a lot of truth to that in that the first, there is real value in the visibility. You think of the restaurants that have a glass panel so you can watch what’s going on in the kitchen. Now, I don’t think that the rate of slipping adulterants into the food is actually any different in those kitchens, but people feel somehow that they are better protected against bad cooking techniques, if they can see the food being made. And you mentioned voter ID, my mind immediately goes to auditing. Now, one of the ironies of the post-​2020 election is that a bunch of Trump supporters simultaneously cried out demanding auditing as if this was a new concept. Whereas auditing in fact is a well-​accepted old concept that you have not just the count and the recount and the other things directly involved in vote… By vote, but you have also for a long time, and in a lot of jurisdictions, had accepted methods of auditing in order to detect whether there might be patterns of something going wrong due to… In order to improve best practices by finding where things might have had clutches previously.

0:33:33.9 Walter Olson: So when I see some of these bills from Trump supporters saying, We need more auditing, that’s one case where I kind of nod and say, “Okay, we’ve got some, but we certainly can afford to have more. It’s likely to improve our understanding of how to further modernized technique and it’s likely to improve the reassurance level of many people who are allowed back into the kitchen to see that there are no mice being put into the sausage”.

0:34:03.9 Andy Craig: And I think that’s something that you hear about these 20-​something, 30 republican states that have passed all these bills that Democrats are calling voter suppression, certainly they are fighting for partisan advantage, and that’s what some of these are, but I think a lot of it is relatively reasonable. Republicans are under pressure from their base that’s screaming about election fraud, and so they feel they have to do something. And so they pass some really marginal tinkering with the rules, but then they can point to that and say, “Look, we did something”. I think that’s a lot of what’s going on in the these state bills.

0:34:46.8 Walter Olson: And that has certainly been a big reason for support of auditing-​type things, is that the Republicans who know better as far as the “Stop The Steal” charges figured that that is a thing they can do to show that they are taking seriously the complaints and that it will not actually harm the system to introduce some of it. Aaron, you mentioned that something I wanted to just circle back to, which is the same people who are suspicious of the outcomes of elections, generally, when you ask them, “Alright, your community or your county, do you think that the administrators are trying to steal any votes?” Typically, they will say, “Oh no, well not here”. I’ve actually met some of these people, they are the last people who would steal votes, and so the workings of the human mind simultaneously aware that your neighbors are not stealing elections, you know your neighbors. But that it is necessary for greater political purposes to believe that elections are stolen, this is what drives people toward the mysterious technological tampering of the Russians or the Venezuelans or the Italians can send out a signal, and seven two 7-2 flips to two seven in some machine in Indiana.

0:36:07.2 Walter Olson: Now, again, this ties in with the fact that people have been worried about this for quite a while, and technology as so often has come to the rescue by pointing out some of the bad designs of machines that are no longer much used and we can kind of help that along or finish it off by moving to a complete paper-​trail system, we’re already nearly there. The great majority of votes already produce a paper trail for auditing, and we can get the rest of the way there, and we can perhaps in settings in which people from who were suspicious of the election get to learn about the technology and buy in. We can explain why those ones and zeros just cannot be sent over the ether without a trial showing up that we would know about it.

0:36:56.1 Andy Craig: And one other point about the political incentives, you know, I think that that is largely fuelled by the procedural ambiguities that have been argued. Why was Trump out there screaming about fraud? Well, because he thought and argued that Congress could throw out the results if Congress determined there was fraud, which is not a good theory, and that’s why there’s work under way on fixing the Electoral Count Act and that whole procedure. But I think that kind of creates the incentive for a losing party to go out and scream about fraud if there are ambiguities in the process where raising that argument could possibly change the outcome.

0:37:42.0 Trevor Burrus: On that… Oh, I just wanted to ask if you just… Well, you could… The Electoral Count Act, at some point, clarify what that is and how that actually could be made better.

0:37:52.7 Walter Olson: Go ahead Andy and talk about that, and then I want to get back to some of the ways in which Trump did personally change things, he made the system different because of what he was willing to do, and after the 2020 election, but Andy, on the Electoral Count Act. Go ahead.

0:38:12.2 Andy Craig: Sure, well, the Electoral Count Act is this very poorly drafted, very old law that lays out the process of when the presidential electors meet the Electoral College in their states, they have to send their ballots to Congress and then Congress counts them, the Vice President opens the envelopes and this is all spelled out in the Constitution. The Electoral Count Act is intended to fill in the details, and there are some legitimate reasons why Congress might have to say that’s not a valid vote. If somebody voted for an ineligible candidate or a state did something truly wacky, like tried to cast more votes than it has.

0:38:52.4 Andy Craig: But the way this was worded, this is what happened on January 6th, that’s why the mob targeted the capital on that day. There is a very open-​ended ability to raise objections in Congress. And then the idea that you could just throw out states and by that get a result where Trump won. So now there’s a lot of talk and there’s a lot of interest in Congress on fixing that, on tightening it up, making it very narrow on what would be a valid ground for rejection. And really, when it comes to who… The question of who won a state, that’s an operation of state law that reaches its determination through the courts, before the electoral college meets and votes. All that should be settled long before it gets to Congress. So that’s one of the kind of things where if that had been tightened up, if there wasn’t the perception that Congress had this power, then not only might not things have gotten less heated, but you might not have had… Might not have had a mob sacking the capital, trying to disrupt the process.

0:40:03.6 Trevor Burrus: Do you see that as… A reform on that as… Are you optimistic on just that issue, because again, when you get to the Electoral Count Act, maybe that’s the kind of law that doesn’t have the perceived partisan change to it, correct, like I’m like voters, I don’t have perceived partisan, in that…

0:40:22.1 Walter Olson: It is possible to get both parties interested because they are well aware that the frivolous objections could come from members of either party, depending on who gets elected. That the… That procedure kind of was stolen by a loser, whichever party that loser may represent. So yeah, we have found that Cato’s work on the electoral conduct and trying to come up with the best basis for reform has been very well received, and really all over Capitol Hill, from a bipartisan and both Houses bases can’t get more specific than that. But there is a reason to think that on this issue, at least, there is a lot of ground for bipartisan effort to actually get something done.

0:41:13.9 Andy Craig: I was just gonna say, I’m pretty optimistic. There’s always questions of, is this gonna get caught up in the machinery and really get done in time, and then the complexity of getting something through Congress, but I think you can see just from the public reporting, there is a lot of motivated bipartisan interest. And I think the chances are pretty good that there will be some kind of Electoral Count Act reform going to the President’s desk in the next year or so.

0:41:42.2 Walter Olson: I’d like to say a few things about how Donald Trump made things different, because we’ve talked a lot about how some of these trends had been building over the years, and were already trends before Trump came along. But Trump who has a record of never acknowledging that he has been beaten fairly in any election… When Ted Cruz beat him in the Iowa caucuses, he said that the Iowa caucuses had been rigged and had to be done over. Trump’s…

0:42:08.7 Aaron Powell: And he also disputed the results of the election he won. That’s the other thing I remember.

0:42:13.6 Walter Olson: Yeah, he said that it had been stolen even though he won, but the… Because he didn’t like conceding that he had lost in the popular vote, even while winning the electoral vote, so he would not concede that and insisted that millions of votes had been stolen. But Trump, in this respect, is different from other political figures that we had seen any time recently in that he launched an attack not just on the vote counting process of January 6th under the electoral conduct, but he launched an attack on each of the elements. It was the kind of stress test that involves dumping it on and put on the computer, setting it on fire, aiming the fire hose at it, pouring acid on it. Trump used these different things. And although horrible in one sense, at least now we know how our institutions performed under his stress test, and this has its reform implications or in some cases, it’s implications for reassurance. We mentioned how Congress responded and Congress responded with the Senate more or less holding the line, but even there it’s often a hit, senators who were willing to get behind for lots of objections.

0:43:27.4 Walter Olson: The House of Representatives did not do so well, one reason why the electoral conduct is a peculiarly important area to look at, but at the same time, Trump was trying to pursue bad legal cases. Federal judiciary came out with flying colors, it did amazingly well, including the Trump appointed judges, in sorting through and basically not coming up with any measures that I can think of, but at the same time, that litigation process revealed some disturbing weaknesses. For example, when the Attorney General of Texas filed an extremely unmeritorious suit, trying to get Pennsylvania’s electoral votes thrown out, he got something like, what was it, 13 or 17 Republican attorney generals from among the other 50 states to back him up with amicus briefs. This, to me, if you’re going to take away only three or four highly disturbing things from the aftermath of Election 2020, the fact that he was not left out there as a public laughing stock with no one supporting him, but managed to get so much support from elected Republicans is extremely disturbing. So that’s… It did not do quite so well under the stress test, but the biggest single thing that Trump was plotting was before the electoral votes reached Congress. He was trying to get state legislatures to assume the extraordinary power, a power which they do not in fact have under our reading of the Constitution, to…

0:45:13.5 Walter Olson: Come in and let him have a do over by throwing out the electors that had been chosen on election day under those states duly established law and replace them with electors of their own choosing. Now he did not get any stead even to the point of voting on this, he got a rather disturbingly large number of legislators in certain states like Pennsylvania. Although Pennsylvania legislature has lots and lots of people in it, so you can get up to a couple of dozen people and still not be anywhere near… Even the majority of the Republican caucus, nonetheless, he made some fascinating inroads on this palpably wrongful theory, extraordinarily dangerous theory which took as it starting point, a truism about how state legislatures do have a great deal of leeway before election day in laying out how election process will go. On that part, they would not be straying from plausible constitutional theory, but then carrying at that insane step further to say that even after the electors are chosen, they can come back for do overs. And so we need to at least have that in mind.

0:46:27.9 Walter Olson: I’m not sure that there is a specific policy fix because Congress cannot necessarily just order them not to do insane things, I believe the courts would have struck it down had they tried that nor is it a policy matter to say, “Please don’t elect insane people at the state level.” That’s a political thing, and I’m not gonna talk politics. People will have to decide for themselves whether to vote for insane theory holders. But it’s one of the moving parts that was moving in a distributing direction, and it’s certainly one that the Trump forces have been working on seeking to cultivate and extend the idea that state legislators can do that.

0:47:06.6 Aaron Powell: So outside of reforming the Electoral Count Act and potentially passing voter ID, and also fingers crossed, not electing crazy Secretaries of State and so on. What are some things, like actual policy changes that we could make or could be recommending that have, especially in as we’ve discussed, the highly charged partisan nature of this environment that would have a chance of helping and actually gaining some degree of bipartisan support.

0:47:47.0 Andy Craig: There is kind of a bigger picture or problem of the runaway polarization and the kind of extreme two-​party tribalism, and that’s where all this ultimately comes from. And so I think there is an important long-​term perspective there that we should be looking at electoral reform options like ranked-​choice voting, things that alter the incentive structure. Because right now we do have a political system and a partisan ecosystem that rewards kind of running to the extremes. And so that’s not so much an election administration’s problem, it’s not how you count the votes and how people vote and all that, but I do think… And there are some good prospects here, a couple of states have already adopted ranked choice voting, there’s kind of a percolating movement for a bunch of different reform ideas coming up through the states.

0:48:47.8 Andy Craig: One of the advantages of our federal system is that the states can experiment here, so I do see some good long-​term potential there. But short of that, I don’t think there’s a lot about the election administration procedure that is necessarily gonna… You can lock it down so that nobody can actually overturn the result, but how much that’s gonna affect the public debate and the public perception, I think is a question of a broader political incentives.

0:49:19.7 Walter Olson: I would back that up. This is not a problem that is gonna be solved by the federal government or by Federal legislation. Most of it goes on at the state level, and most of the progress that we are likely to see is also likely to be at the state level. There are some things that Congress and the federal government can do on gerrymandering, which we have not mentioned, but which plays its role on perceptions of legitimacy. There are some limited things that Congress could do to, for example, prescribe compactness for house districts and a couple of other standards where they would be well within their constitutional and historical role to do that, and it would have some good and reduced, one of the obvious evils of the system. But when it comes to the interest in different voting methods, whether it be rank choice voting or other things, there is no prospect that the federal government is gonna lead the way on that. It might get around to paying attention once 20 states decide that they are happy with their own experiments in that area. And in a way, this is also part of the strength of our system, our system is not easily manipulated by Washington and we probably should be glad because someone would have tried to do it in order to solidify power by issuing orders, had it all been centralized at certain points of course.

0:50:56.5 Aaron Powell: Thanks for listening. If you enjoy Free Thoughts, make sure to rate and review us in Apple Podcasts or in your favorite podcast app. Free Thoughts is produced by Landry Ayres. If you’d like to learn more about libertarianism, visit us on the web at lib​er​tar​i​an​ism​.org.