Election Meltdown, Part 1

Summary

Amicus With Dahlia Lithwick | “Election Meltdown, Part 1”

Original Air Date: January 25, 2020
Host: Dahlia Lithwick
Co-Host/Guest: Rick Hasen (Professor of Law and Political Science, UC Irvine)
Theme: Deep dive into erosion of trust in American elections—disinformation, institutional failures, and the ongoing struggle over voter fraud claims and suppression. This episode kicks off the “Election Meltdown” series based on Hasen's book.

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Episode Overview

This episode launches the “Election Meltdown” miniseries, focusing on the health of American democracy ahead of the 2020 election. Host Dahlia Lithwick and co-host Rick Hasen (author of Election Meltdown) examine the growing distrust in U.S. elections, exploring the persistent and politicized claims about voter fraud, as well as the concrete dangers posed by voter suppression. Through expert interviews and firsthand accounts, the episode unpacks both myth and reality, highlighting how these challenges endanger the legitimacy of America's electoral system.

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Key Discussion Points & Insights

1. The Stakes: Trust in the 2020 Election

• [00:04–01:57] The show opens with Lithwick linking the impeachment proceedings against Donald Trump to the core question “whether and how that election can be free and fair.”
  • Quote: “Impeachment exists for cases in which the conduct of the president rises beyond mere policy disputes... that is an attempt to use the powers of the presidency to cheat in an election.” – Rep. Adam Schiff [01:25]
• [02:57] Contextualizes why the topic is urgent: erosion of trust in democracy is “the only thing that can truly matter anymore.”

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2. Election Distrust – Four Core Causes

• Rick Hasen outlines the roots of “election meltdown”:
  • Republican-driven voter suppression
  • Incompetence in election administration (both parties)
  • Dirty tricks (e.g., foreign interference, political manipulation)
  • Incendiary rhetoric from both political sides
• [04:30] Quote:
  • “Americans are increasingly distrustful of the election process... I do worry that we're going to get to a point where people might not accept the results if it does not come out to their liking.” – Rick Hasen

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3. Case Study: The Presidential Advisory Commission on Election Integrity (“Voter Fraud” Commission)

Background & Partisan Motivations

• [08:54–15:45] Explores President Trump’s pattern of fraud accusations, the formation of the commission, and participation of Kris Kobach and others dubbed the “fraudulent fraud squad.”
  • Hasen’s take on the commission:
    • “This commission I think was not set up to investigate, but to confirm Trump’s widespread claims of voter fraud.” [15:10]
  • On its members:
    • “If you were trying to come up with a rogues’ gallery... it would be these four.” [14:08]

The Internal Turmoil

• [17:43–19:46] Recap of Matt Dunlap’s (Maine Secretary of State) experience as a Democratic appointee, his being stonewalled, then suing the commission.
• Quote:
  • “I was inundated with mail... begging me to resign. Don’t be a part of it. Don’t legitimize this voter suppression sham.” – Matt Dunlap [15:45]
• Commission dissolves without findings; later lawsuits reveal internal Republican collaboration and lack of transparency.

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4. The Myth of Widespread Noncitizen Voter Fraud

The Kansas Case: Fish v. Kobach

• [22:33–28:28] Deep dive into Kansas’ “documentary proof of citizenship” law (DPOC) championed by Kris Kobach. At trial, the supposed evidence of noncitizen voting collapses under scrutiny.
• Memorable Courtroom Moment:
  • Cross-examination exposes Kobach's expert's method: coding “foreign-sounding” names as noncitizens, such as federal Judge Carlos Murguia—demonstrably a U.S. citizen.
    • “Are you aware that Carlos Murgia is a United States District Court judge who sits in this courthouse?” – Dale Ho [27:19]
    • “I am not.” – Professor Jesse Richmond (expert witness) [27:29]
• Judge Robinson’s conclusion:
  • “There is no iceberg, only an icicle created by confusion and administrative error.” [28:09]

The Zombie Myth

• [28:55–30:43] The narrative of noncitizen voting persists despite court defeats, upheld by anecdotal and dubious evidence.
• Nina Perales (MALDEF):
  • “He [Kobach] was unable to come up with a single documented instance... that's pretty consistent with our experience around the United States.” [29:27]

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5. Real-World Effects of Suppression—Texas Purge

• [32:10–36:45] In 2019, Texas claims 90,000 noncitizen voters; the number is based on outdated data. Quick action by civil rights lawyers reveals the majority were legitimate, naturalized citizens. Threatening letters unnecessarily intimidate and disenfranchise.
• Perales recalls:
  • “It took about five minutes for everyone to figure out that Texas had used an old database... That information in no way accurately portrayed who was a US Citizen today.” [34:27]
  • Some naturalized citizens vow never to vote again out of fear.
• [36:07] Quote: “A great deal of damage has already been done to immigrant voters who proudly became U.S. citizens and who now don’t want to vote.” – Nina Perales

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6. The Lasting Damage and What’s Next

• [37:33] Suppression can be measured in real numbers (purgings); but the full extent—those discouraged or permanently deterred—is unknown.
• [38:16] Hasen notes:
  • “If you think about it, the level of each voter, you’ve really deprived those voters of their dignity for no good reason... it has no basis to do it other than crass political calculation.”

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Notable Quotes & Memorable Moments

• “We hear all kinds of talk of voter suppression, of voter fraud, of foreign interference, of stolen elections. And with all of this swirling around, I do worry that we’re going to get to a point where people might not accept the results of the election.” – Rick Hasen [04:30]
• “This is as though the President wanted to put together an ‘Elvis Lives’ commission and found the four people who have cited Elvis in Las Vegas in the last 20 years and put them on the commission.” – Dahlia Lithwick [14:56]
• “I was inundated with mail... begging me to resign. Don’t be a part of it. Don’t legitimize this voter suppression sham.” – Matt Dunlap [15:45]
• “Are you aware that Carlos Murgia is a United States District Court judge who sits in this courthouse?” – Dale Ho [27:19]
• “There is no iceberg, only an icicle created by confusion and administrative error.” – Judge Julie Robinson (via Hasen) [28:09]
• “A great deal of damage has already been done to immigrant voters who proudly became U.S. citizens and who now don’t want to vote.” – Nina Perales [36:07]

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Timestamps for Core Segments

| Timestamp | Topic/Discussion | |-------------|------------------------------------------------------------------------------------------| | 00:04-01:57 | Opening, stakes of 2020, link to impeachment | | 04:12-06:59 | Introduction of Rick Hasen & “Election Meltdown” themes | | 08:41-15:45 | Trump’s commission, Kobach’s influence, formation and skepticism | | 17:43-19:46 | Matt Dunlap’s sidelining, transparency issues, lawsuit, and commission's abrupt collapse | | 22:33-28:28 | Kansas voter citizenship trial (Fish v. Kobach)—collapse of noncitizen fraud claims | | 28:49-31:48 | Persistence of voter fraud myth; Nina Perales' courtroom and deposition stories | | 32:10-36:45 | Texas noncitizen voting “scandal;” purging, legal response, damage to legitimate voters | | 37:33-38:16 | Lasting consequences; unknown numbers of intimidated/deterred voters | | 38:16-end | Preview of next episode & wrap-up |

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Tone and Language

The discussion is clear, urgent, and often wry—Lithwick’s dry humor (e.g., “Rule of Law Twister,” “Elvis Lives Commission”) anchors a conversation that’s deeply serious about the consequences for democracy. The speakers combine legal expertise with storytelling, making abstract threats concrete.

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Summary Takeaways

• The myth of widespread voter fraud is persistent but repeatedly debunked—in practice, claims are used to justify restrictive laws and targeted voter suppression, damaging faith in elections and disenfranchising eligible citizens.
• Real threats to election integrity in 2020 include baseless rhetoric, poor administration, targeted purges, and the chilling effect of false accusations.
• The challenge is compounded by lack of transparency, hyper-partisanship, and institutional vulnerabilities—putting democratic legitimacy at risk.
• There are no quick fixes; the problem demands vigilance, legal intervention, and public awareness.

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Listeners are left with the sobering realization that the greatest dangers to American elections are often homegrown—rooted in false narratives, procedural failures, and purposeful suppression rather than any genuine epidemic of fraud.

Transcript

[A]

Hi, and welcome back to Amicus. This is Slate's podcast about the courts and the law and the Supreme Court and the rule of law. And for the next couple of episodes, it's also a show about whether American democracy can well survive the 2020 elections. This is part of our who Counts? Project that we've launched here at Slate. If you are anything like me, you have probably spent this past week with like one ear on the impeachment trial in the Senate, the ear at the U.S. supreme Court, listening to arguments, maybe a hand on the phone, your face in the keyboard. It's a little move I like to call Rule of Law Twister. And you could be forgiven if you're feeling just a tiny bit pretzel y from all of the maneuvers we've been covering. Impeachment on what Next and on Tromcast and online at Slate. And the court arguments and judiciary have been covered so well by Mark Stern and the magazine. So everything is out there for you. But we are all in on the principle that the one thing, the only thing that can truly matter anymore is the 2020 election. And also to a question that many of us are just not yet paying a lot of attention to, which is whether and how that election can be free and fair. And that is the question at the very core of the arguments presented on the Senate floor this week during impeachment. Here's Adam Schiff.

[B]

Impeachment exists for cases in which the conduct of the president rises beyond mere policies, disputes to be decided otherwise and without urgency at the ballot box. Instead, we are here today to consider a much more grave matter, and that is an attempt to use the powers of the presidency to cheat in an election. For precisely this reason, the president's misconduct cannot be decided at the ballot box, for we cannot be assured that the vote will be fairly won.

[A]

So that's Adam Schiff telling us what probably we don't want to think about, which is there is a really tight connection between what's happening in the well of the Senate this week and what's going to happen in November of 2020. And so this week we are launching our Election Meltdown series, and it's being done in tandem with our voting law sherpa, Rick Hassan. It is completely rooted in his Election Meltdown book. And we are, yes, asking you, unfairly perhaps, to add one more item to your teaming cart of constitutional democracy projects, and that is Voting Slate. Plus members are going to get an additional episode of Amicus every week during this special Election Meltdown series. You're going to get to hear extended or bonus interviews and more on the issues that we are talking about on the show. So head over to slate.comamicus+ to sign up for Slate+ now so you will not miss out on the whole entire sprawling, fantastic conversation. Okay, Here we go.

[C]

Part 1 Part 1 People that have.

[D]

Died 10 years ago are still voting. Illegal immigrants are voting.

[E]

A great deal of damage has already been done to immigrant voters who proudly became U.S. citizens and who now don't want to vote.

[B]

I was inundated with mail and email and phone calls from concerned citizens all over the country begging me to resign. Don't be a part of it. Don't legitimize this voter suppression sham.

[A]

Hopping in to the extra host chair beside me for this series is the wonderful Rick Hassan. His new book Election Meltdown, which will be out on February 4, really forms the spine of this miniseries of Amicus. Rick is professor of Law and Political Science at UC Irvine, and if you listen to this show, you know we've had him here as the go to expert on election law. He's also written extensively for Slate on the topic, and I am just so delighted that he will be here to co pilot this contested and disorienting terrain as we walk through election integrity and security in 2020. So Rick, welcome to Amicus.

[C]

It's so great to be with you.

[A]

And the title you chose for your book and that we've chosen for this series, Election Meltdown. It doesn't really fill me with bubbly optimism. Can you talk about the focus of the book and the series and maybe explain why we're doing it now?

[C]

Back in 2012, I wrote a book called the Voting wars and the subtitle of that book was from Florida 2000 to the next Election Meltdown. Well, we've now reached the next Election Meltdown. We've reached a point where Americans are increasingly distrustful of the election process, whether their votes are going to be fairly and accurately counted. We hear all kinds of talk of voter suppression, of voter fraud, of foreign interference of stolen elections. And with all of this swirling around, I do worry that we're going to get to a point where people might not accept the results of the election if that does not come out to their liking. And I talk about four reasons why I think that Americans mistrust is increasing in our elections. All four of those are illustrated in this clip from a press availability that President Trump had in February 2019. Mr. President, why haven't you condemned the.

[A]

North Carolina election fraud?

[C]

He was asked By NBC News, Hallie Jackson in the Oval Office about recent claims of ballot tampering in a North Carolina congressional race in the 2018 election.

[D]

Well, I condemn any election fraud. And when I look at what's happened in California with the votes, when I look at what happened, as you know, there was just a case where they found a million fraudulent votes. When I look at what's happened in Texas. Excuse me. Excuse me. When I look at what's happened in Texas, when I look at that catastrophe that took place in Florida where the Republican candidates kept getting less and less and less and less. And fortunately, Rick Scott and Ron ended up winning their election. But it was disgraceful what happened there. So I look at a lot of different places all over the country. I condemn any voter fraud of any kind, whether it's Democrat or Republican. But when you look at some of the things that happen in California in particular, when you look at what's happened in Texas with all of those votes that they recently found were not exactly properly done, I condemn all of it. And that includes North Carolina, if anything, you know, I guess they're going to be doing a final report, but I'd like to see the final report. But any form of election fraud, I condemn.

[A]

Okay, well, that was just a buffet, a circus, circus smorgasbord of presidential claims about voting fraud. Why don't you walk us through unpacking what the president was referring to there?

[C]

The context here is that there was a disputed election in 2018 in North Carolina's 9th congressional district. Turns out that there was a political operative who was stealing and manipulating absentee ballots. And it was so concerning that the state election board thought that it couldn't determine who the winner of the election was and actually called for a new election. And so Trump was being asked this question when here it was an actual case of fraud involving an election. But what he does talk about is something else. Unsubstantiated claims of voter fraud. He talks about a million fraudulent votes in California. And it may have been hard to hear, but Hallie Jackson interjects and says there weren't those cases. Sir, this is an actual case. And if you look at the White House transcript that's just recorded as inaudible, but I've confirmed that that is what Jackson actually said. There were not a million fraudulent votes in the state of California, as we'll hear later on in the show, there's not a massive problem of noncitizen voting in Texas. And so this is write about an election meltdown. These Four concerns Republican voter suppression, incompetence by both Democrats and Republicans, and how elections are being administered. Dirty tricks. Not just what we saw in North Carolina, but the Russian interference. And we'll talk about a Democratic attempt at some dirty tricks in a 2017 Senate race in the state of Alabama. And this incendiary rhetoric that we hear from both sides about stolen and rigged elections, put them all together, that's the concern. And then the question is, what can we do about it? Spoiler alert. I don't have any good short term solutions. So we're in some potentially serious trouble as we approach the 2020 elections.

[A]

Okay, so let's start. You said there's a coin, it's got heads and tails. Let's start with the heads. The claim that there has been, and there continues to be, and there certainly will be in 2020, widespread voter fraud in this country.

[C]

So Trump didn't just discover voter fraud as something to yell about. He's been making these claims for a long time. Before he was President Trump, he was candidate Trump. And the rigged election was a central theme of his campaign.

[D]

You know, I've been talking about a rigged system for a long time, and I'm afraid the election is going to be rigged. I have to be honest. The only way we can lose, in my opinion, I really mean this, Pennsylvania, is if cheating goes on.

[C]

I really believe it.

[D]

And believe me, there's a lot going on. Do you ever hear these people, they say there's nothing going on. People that have died 10 years ago are still voting. Illegal immigrants are voting. Remember, we're competing in a rigged election. This is a rigged election, folks.

[B]

Okay?

[C]

After he was elected, he kept carrying on casting doubts about the election results. And that was kind of surprising because he was the election winner. I think the reason he was doing this was because although he won the Electoral College vote, as we all know, he lost the popular vote by about 3 million people. And lo and behold, here he was claiming that there were about 3 million people who were casting fraudulent votes. And he ends up going on to claim that all of those votes went to Hillary Clinton. He tells ABC's David Muir, none of those votes come to me. None of them. None of them. He repeated this claim in a closed door meeting of congressional leaders in February of 2017. And after a collective jaws dropped, not for the first time and not for the last, here's White House press Secretary Sean Spicer trying to defend the President's comments the next day.

[B]

Does the President believe that millions voted illegally in this election and what evidence do you have of widespread voter fraud in this election, if that's the case? The president does believe that. He has stated that before. I think he stated his concerns voter fraud and people voting illegally during the campaign. And he continues to maintain that belief based on studies and evidence that people have presented to him.

[C]

Studies and evidence that people have presented to him. Right. So who's talking to him? I have an idea about who one of those people might be, and I'm pretty certain one was Kris Kobach. Kobach was the Kansas Secretary of State at the time. He was angling for a job in the Trump administration, and he was the only one out there backing up Trump's claims of potentially millions of fraudulent votes in the election.

[B]

Somebody like Kobach comes and jumps in his lap and said, I'm your boy, you know, because this is what I've been working on my whole career. And I think Trump probably looked at him as some kind of an expert, surrounded by other experts, and said, I'm just going to turn this over to the experts.

[C]

That's Matt Dunlap, who was then and still is the Secretary of State of the State of Maine. Secretaries of State are the chief election officers in each state. They're the ones that set the basic ground rules for running elections. And we're going to hear a lot about them in this series. Anyway, Dunlap told me how back in March of 2017, just a couple of weeks after the President made that remark about 3 million fraudulent votes being cast, and when Sean Spicer tried to defend that at a White House presser, Dunlap gets a call from his opposite number in Kansas, Secretary of State Kris Kobach.

[B]

And he called me up, said, you know, looks like the President may actually do something with this claim and put together a commission to investigate the integrity of our elections. And would you be interested in being a part of that, Rick?

[A]

Why are they even reaching out to Democrats like Dunlap? Why is that even of interest to them?

[C]

Election reform commissions have been around for a while, and they always had the same model, bipartisan, evenly divided people of stature at the top of the commission. So there was a Commission after the 2000 election with President Carter and President Ford. There was one in 2004 with President Carter and James Baker, who was the Republican Secretary of State. There was one after 2012 with Bob Bauer, who was Obama's lawyer, and Ben Ginsburg, who was Mitt Romney's lawyer. Bipartisan, high profile people. This commission was different. It was lopsided towards Republicans, but they wanted to have at least some Democrats on the commission, maybe Democrats they thought they could push around in order to give the veneer of bipartisanship to it.

[A]

Despite the fact that this was now bipartisan and that Matt Dunlap was named as a commissioner, you did not hold out tremendous hope for its findings. I'm guessing that has a little something to do with your longstand tracking of Kris Kobot.

[C]

Well, so if you look at who was put on the commission, four of the 13 commissioners included what I believe it was the lawyers committee called the four horsemen of the voter suppression apocalypse. You had on there, Kris Kobach, who was known for making false and exaggerated claims of voter fraud. Hans von Spakowski, who heads an elections initiative at the Heritage foundation and has long made debunked claims of voter fraud and exaggerated voter fraud.

[B]

Hans von Spakowski walks around with this spiral bound document documenting over a thousand cases of documented voter fraud. And they're real. I mean these are convictions for people who did things wrong in elections. But what he doesn't tell you is that they date back to 1948.

[C]

J. Christian Adams, a former DOJ lawyer who made his name by trying to claim that the New Black Panthers in Philadelphia were a major problem that got featured on Fox News. This was after, I believe it was the 2008 election. And then there was Kenneth Blackwell, former Republican Secretary of State of Ohio, who was maybe most famous for trying to reject voter registration forms because they were not printed on a heavy enough weight of paper. If you were trying to come up with a rogues gallery of the people who are most likely to put out incendiary claims of voter fraud, it would be these four. I wrote about these people years ago for Slate and I believe it was Eugelia who who came up with the title for them, the fraudulent fraud squad, which I grabbed and have been running with ever since.

[A]

This is as though the President wanted to put together Elvis Lives Commission and found the four people who have cited Elvis in Las Vegas in the last 20 years and put them on the commission.

[C]

Yeah, I think it's kind of like the Bigfoot Commission. This commission I think was not set up to investigate, but instead to confirm Trump's widespread claims of voter fraud. And then I think the end game was to then propose federal legislation which would make it harder for people to register to vote. So the commission was established in May 2017. It had a handful of Democrats. Mostly these die hard true believing voter fraud myth makers. I felt strongly that Matt Dunlap should not take part in the commission. I wrote an op ed in a local Maine paper arguing that he shouldn't. And I wasn't the only one who thought his participation was a bad idea.

[B]

Immediately upon the announcement, I was inundated with mail and email and phone calls from concerned citizens all over the country begging me to resign. Don't be a part of it. Don't legitimize this voter suppression sham. And my response was always like, well, if I'm there, I have a bullhorn in my hand. If something goes untowardly, never for a moment understanding what I was actually saying.

[C]

One of the first things the commission does is it sends out a letter where it asks each state to turn over their voter registration files. And we think this was because they were going to do some kind of matching with DHS records, try and figure out if there were a lot of noncitizens voting. Lots of secretaries of states in each state objected. This is a state matter to run elections rather than, we don't have a single federal list of everyone running for elections. So unsurprisingly, someone like Alex Padilla, the Secretary of state of California, objected, seeing this as a sham commission aimed to trumpet up claims of voter fraud. But also some Republicans objected. So Mississippi Secretary of State Delbert Hoseman, a conservative Republican who was protecting his state's rights to be able to run their elections, said, quote, they can go jump in the Gulf of Mexico, and Mississippi is a great state to launch from. What he's objecting to is not the claims of voter fraud so much as, here's the federal government trying to steal the state's traditional power over their elections. And we'll talk about this later on. But decentralization of our elections is a central feature and bug of the process. So the commission had a number of problems. Turns out that there are set rules as to how presidential advisory commissions have to work. They have to communicate on the record. It seemed like the Republicans were coordinating behind the scenes. There's this lack of transparency. Dunlap doesn't know what's happening. He doesn't even know when the commission is going to have a meeting. And so he writes a strongly worded letter. But the reaction is not what he expected.

[B]

A few days later, about a week later, I got an email from the White House saying, you know, that they were reviewing my request with their legal counsel, and I just scratched my head. And I thought, you know, am I not on this commission? Why do I have to go through legal counsel to find out what our schedule is?

[C]

And then, in Dunlop's words, it Got kind of weird from there, as if it weren't before.

[A]

I'm sorry, it got weird. How did it get weirder?

[C]

So the commission only meets twice. It meets first in July 2017, essentially a photo op. It meets again in September 2017, which was a little awkward because the meetings in New Hampshire. Bill Gardner, who's the Secretary of State of New Hampshire, one of the other few Democrats on the commission, had just been accused of allowing voter fraud to take place by Kris Kobach in a Breitbart column that appeared just before the meeting. And not really much else is happening. And Dunlap realizes he's out of the loop. He's not getting documents. He has a sense that things are going on behind the scenes because, for example, a letter went out requesting the states provide this voter registration information. He wasn't asked for input on that letter. And so he gets this anonymous tip, hey, maybe you better get a lawyer and try and sue the commission to get access to the documents that you as a commission member, should be entitled to. And he files a suit.

[B]

We filed a lawsuit. We got the preliminary injunction. On December 22, 2017, we had a conference call with all the attorneys. And by the way, I'm not a lawyer. I was a commercial cook for 20 years, so I don't necessarily always fly in these circles. Had a big conference call, and I asked the question, I said, what do you think the odds are that the president simply dissolves the commission?

[A]

And weirdly, that's exactly what happens. Right. Ten days after the phone call Matt Dunlap has just described. January 2018, President Donald Trump announces he is disbanding the commission. Unbelievable. Is this the of the story?

[C]

It's the end of the story. To the extent that the commission produces no findings, nothing comes out of the commission. But lawsuits continue, as is the American way, including Dunlap's lawsuit. And they lead to lots of documents being disclosed about what was going on. And in fact, it was true that it was Von Spakovsky and Adams working with Kobach behind the scenes to craft the letter that demanded the voter registration information. I think we should pause for a second and recognize that this is a really important victory for democracy that the commission collapsed. In a recent book on how democracies move into authoritarianism, Professors Levitsky and Zablatt make the point that a commission that is meant to change the rules for elections and go after political opponents is kind of a hallmark of authoritarianism. So it's really important not only that this commission failed, but that it failed resoundingly and that we're finding out all of this behind in order to promote the rule of law and belief that elections need to be fair. Then there was a question of Kobach. So Kobach goes on to the radio and he says, oh, it's not over yet. The Democrats didn't play nice, so we're taking their toys away and making them go home. But we're going to continue this work over at the Department of Homeland Security. Department of Homeland Security says we have no idea what he's talking about. Kobach goes back to Kansas. Eventually he runs for governor, loses the race for governor, and Kansas, a solid red state, gets a Democratic governor. Now he's running for Senate. And Republicans in the state are worried that he might lose that election for Republicans as well.

[B]

You know, after the President had dissolved the commission, Secretary Kobach said publicly that, you know, Secretary Dunlap is willfully ignoring the voter fraud happening right under his very nose. And I was asked to respond to that. And I said, if Secretary Kobach can give me one illustrated case of voter misconduct, I will retract everything I've said. I've never heard back from him.

[C]

Even though the commission has ended, President Trump has revived his claims of voter fraud. And I expect as the 2020 election heats up, we're going to see him do the kinds of things he did in 2016, which is to try to claim that voter fraud is a major problem and to send his supporters into the major cities to look for evidence of voter fraud efforts which could be seen as trying to suppress the vote.

[A]

Kris Kobach, in the end, not only couldn't get his governorship, but he couldn't make stick this claim of widespread non citizen voting. But nevertheless, he does get his day in court. And we're gonna talk about that next. You're gonna take us through the other side of the same coin, which is.

[C]

Voter suppression, in which Kris Kobach reprises his role as election fraud fever dreamer. So we're going to take a little bit of a deeper dive here, and we're going to look at some cases in Kansas and Texas where the claims of voter fraud were really put to the test. And what we see is that they failed the test and that really these are tactics aimed at voter suppression.

[A]

So where are we going first, Rick?

[C]

Kansas 2018 Julie Robinson's courtroom Julie Robinson, fourth generation Kansan, first African American woman federal judge sitting on the bench in Kansas. This is a case brought by the ACLU called Fish v. Kobach. Fish v. Kobach is arguably the most important voting Rights trial of the 21st century.

[A]

And I remember this case. But can you remind us why this case in Kansas becomes so significant?

[C]

Kris Kobach wasn't done with his efforts at voter suppression when the commission disbanded. He instead was one of the lead trial lawyers in a case that was testing a law that Kansas had passed called the documentary proof of citizenship law, or dpoc. And what this law did was it said that if you wanted to register to vote, if you aren't already a registered voter in Kansas, you had to provide either a birth certificate or a naturalization certificate, something to prove that you were an American citizen. And before the ACLU and others came in and brought this suit, we know that 30,000 Kansans who tried to register to vote had their registrations put on hold. We hear a lot about voter ID laws. We don't know how much they suppress the vote, and we don't know how many people are not voting because they can't produce an id. And I think that there's some validity to those claims. We really have a hard time knowing how many people are deterred by voter ID laws. But this is a different law. This is a law about voter registration. And we know a number, we know that 30,000 people in Kansas had not, at least to that point, been able to produce the right piece of paper. And so this law has a potentially huge suppressive effect, could affect outcomes of elections on a massive scale. And even more importantly, it was depriving Kansas voters, who would be eligible to vote otherwise, of their right to vote based mostly on the fact that they haven't produced this piece of paper that Kansas wanted. Now, the ACLU and others claimed that this law violated federal law which provides streamlined procedures for voting and instead was really aimed at a non problem. The case bounced back and forth between the district court and the appeals court. At this point, when the case goes to trial, the main question is how much non citizen voter fraud is there in Kansas. Is it a big problem? Because if it's a big problem, that might justify a law that requires show me your papers. And so here was the chance to actually prove it in court. You've got Von Spakovsky as an expert witness, you've got Kobach. Even though this is so unusual, as a secretary of state, he normally wouldn't be running the trial, but there he is running the trial. And they're litigating over this question of whether or not non citizen voting is a big problem in Kansas. And the star witness is a professor named Jesse Richmond who comes in and has a bunch of different models where he's trying to show that non citizen voting is a major problem. Now, one of his studies was based upon 4 out of 14 people in a nationwide survey responding from Kansas saying they were not citizens but that they had cast a vote. And he extrapolated from that and said, oh, that probably means about 32,000 noncitizens voting. Now, this methodology was criticized as so weak that 200 political scientists wrote a letter saying this was bad way to try to figure out how many non citizens were voting. So he came up with a different way. And this way is really incredible. There's this moment that really has to be heard to be believed. Unfortunately, there's no audio of the trial that's been publicly released. All we've got is the transcript. So we've asked Dale Ho, who directs the ACLU's Voting Rights Project, to read his part of this cross examination, and I will read the part of the expert witness.

[B]

Just hypothetically, Dr. Richmond, if you came across the name Carlos Mergia, would you code that as foreign or non?

[A]

Foreign.

[C]

I'm sorry, could you please spell the name? Sure.

[B]

Carlos. C A R L O S Mergia.

[C]

M U R G U I A. Richmond says probably.

[B]

Probably what?

[C]

Richmond says probably would code it as foreign.

[B]

Okay. Are you aware that Carlos Merguia is a United States District court judge who sits in this courthouse?

[C]

Richmond says, I am not. So here it was. They're in the courtroom. It's their chance to try to prove that this is a major problem in Kansas, that noncitizens are voting, they're affecting our elections. Remember, Trump has said, 3 million noncitizens voting, and yet they can produce basically nothing. Both Trump and Von Spakovsky kept claiming it's the tip of the iceberg. And yet Chief Judge Robinson, when she concludes her opinion in the Fish versus Kobach case, rejecting the argument that this law is needed to prevent noncitizen voting, she says, quote, there is no iceberg, only an icicle created by confusion and administrative error. We saw this from the Pence Kobach Commission. We see it from the trial. No iceberg. Not even an icicle. It's more like a evaporating, melted puddle of water.

[A]

So it's good, right? It's all settled. The trial has quashed the notion of widespread voter fraud. We now know it is a myth and ponies and unicorns and rainbows. We all can just get onto the project of ensuring the dignity of one person, one vote in America, right?

[C]

Yeah. In fact, we can cancel the rest of this podcast because everything is perfect.

[A]

Everything's good.

[C]

No, unfortunately not.

[B]

No.

[C]

The voter myth keeps coming back like a vote suppressing zombie rising from the dead. Someone who knows a lot about this, Nina Perales.

[E]

I'm the Vice President of litigation for maldef, the Mexican American Legal Defense and Educational Fund.

[C]

She's litigated many cases of voter suppression. She's argued before the United States Supreme Court in a gerrymandering case. She's been in the trial court, in the trenches. She even had a case in Kansas, an earlier part of the challenges to these documentary proof of citizenship laws.

[E]

Well, I remember being in a courtroom with Kris Kobach in federal court in Kansas, and he was unable to come up with a single documented instance of an individual who was not a US Citizen purposefully registering to vote, knowing that they were ineligible. He just couldn't come up with anything. And that's pretty consistent with our experience around the United States. That was certainly what was going on in Arizona when we litigated the Arizona case as well. On the one hand, we had tens of thousands of people who had been rejected for voter registration because they hadn't come in with the kind of burdensome paperwork that was being required of them. And on the other hand, the evidence was that there was really only a handful of individuals who had ever been registered to vote as non citizens. And in all of those instances it was inadvertent. So for example, somebody with a language barrier may have gotten registered to vote by accident at the motor vehicles department while getting a driver's license that they were entitled to, or somebody may have been inadvertently registered to vote as a noncitizen by an over enthusiastic voter registration driver.

[C]

Well, maybe in Texas there's better evidence. But Nina Perales recalls a deposition, a case challenging that state's restrictive voter ID law.

[E]

The witness that was testifying was a state representative and she was asked whether she had personally witnessed any instance of voter fraud and particularly non US citizen voting. And the state representative very proudly told a story in which she had been in the polling place voting and another voter who was an elderly Hispanic woman needed assistance in voting on the machine and she needed that assistance in Spanish. And the state representative testified that this was evidence of non US citizen voting because the voter was Hispanic and needed language assistance. And it certainly wasn't evidence of non US citizen voting. It was evidence that a naturalized citizen needed help in her own language to tackle the complexities of the voting machine.

[A]

So this kind of flawed individual, perfectly anecdotal claims of Non citizen voting. This kind of myth making gets a huge boost by a surprise announcement out of Texas from the Texas Secretary of State in the spring of last year. And what was the claim there?

[C]

So, you know, every once in a while, states have to go in and they have to clean out their voting rolls. They have to get rid of the names of people who died or moved. And we call this a voter purge. Names are removed from the rolls and done properly. It's very important because you want to have accurate voter rolls. But Texas announced that they had found upwards of 90,000 non citizens on the voting rolls who needed to be purged. And as many as 58,000 non citizens voting in Texas elections. An astounding number. I mean, really talk about a major scandal of voter fraud the likes of which we haven't seen in this country for at least decades. It's pretty incredible. So Secretary of State makes the claim, followed by tweets by the Governor of Texas from the Attorney General. And later that weekend, President Donald Trump claims that there were close to 100,000 noncitizens on the Texas voter roll and they're going to be purged.

[E]

The Secretary of State had instructed counties to begin sending letters to specific individuals warning them that they were going to be taken off the voter rolls and their registrations would be canceled if they didn't immediately, within the next 30 days, come in with documentary proof of US citizenship. We reached out to people in the community and were able to find fairly quickly naturalized citizens who were receiving these purge letter. And this was in fact a pretty wide scale voter purge that Texas had launched through using the counties as their tool. And the folks that were primarily targeted were naturalized citizens. People who had naturalized and registered to vote within about the past seven years.

[A]

Remind me where they get this 90,000 number from.

[C]

So everything's bigger in Texas, including the number of people who become citizens. Nearly 1 million Texas residents had become naturalized citizens between 2007 and 2016. And they're comparing an old list of Texas citizens with their current voting rolls and they're seeing people listed as non citizens who actually are now citizens and are perfectly entitled to vote. So Nina Perales told me it was immediately obvious the number was based on flawed data.

[E]

It took about five minutes for everyone to figure out that Texas had used an old database of people who had gotten driver's licenses while they were still permanent resident immigrants. That information in no way accurately portrayed who was a US Citizen. Today.

[C]

The story unraveled and Maldef went to court.

[E]

What we were facing at that time was close to 100,000 people who were going to receive purge letters. And even if 2 in 10 of them had failed to come in and provide their naturalization certificate, we could have seen 20,000 or more registered Texas voters cast off the voter rolls at that time. We were able to secure a temporary restraining order from the judge in San Antonio to protect our clients from being taken off the voter rolls. And the judge warned the Secretary of State very sternly that this problem needed to be fixed.

[C]

So Maldef got some relief. The judge said that Texas was looking for a needle in a haystack of voter fraud out of 15 million Texas voters. The judge quoted from Robert Fulgham's book All I Need to Know. I learned in kindergarten that people need to clean up their own messes. But there was no apology, and the claims weren't retracted, and they're still floating around to be picked up again on social media. The Attorney General's tweet about this was liked 85,000 times, and it still appears on his Twitter feed. On top of all of this, Nina Perella says the damage was already done for some of her clients.

[E]

At least one of my clients expressed that she never wanted to vote again after this experience, even though she was a naturalized US Citizen and had every right. It wasn't just about taking people who were registered to vote and who were legitimate voters off the voter rolls. It was about sending threatening letters to people who then would become very worried that they had done something wrong, and ultimately a number of them would be deterred. A great deal of damage has already been done to immigrant voters who proudly became U.S. citizens and who now don't want to vote.

[A]

And Rick David Whitley, Secretary of State there, his career does not get boosted from all this either. Right.

[C]

Well, Democrats, even though they're in a minority in the Texas legislature, managed to scuttle his confirmation, and he's no longer the Secretary of State of Texas.

[A]

Okay, so this is where this question of voter suppression becomes extra tricky. Right. And Nina Perales, a little bit flicked at it there. On the one hand, we have big, big numbers. We have 3 to 5 million fraudulent VOT. On the other, there is actually a number that we can put on the number of people who are purged from the voter rolls. We know that number, too, but we cannot. Right. And I think Nina says this even begin to estimate how many folks who experience all this and are deterred from ever going to their polling place again. What's the answer to that?

[C]

So there is no good answer. I mean, there are lots of things we could do. One thing we could do is adopt online voter registration in Texas, something that I think would make it much easier in a place like Texas with its vast distances for people to be able to register to vot think you've really hit on something important, which is that regardless of whether these oppressive voting laws are swinging elections, regardless of whether they're skewing turnout in favor of Republicans against Democrats, if you think about it, the level of each voter, you've really deprived those voters of their dignity for no good reason. With states putting up roadblocks, it's making it harder for some people to register to vote, and it has no basis to do it other than crass political calculation. And that's really the main story of this and why this is so depressing.

[A]

We've got election fake election fraud on the one hand, actual suppression and purging of rolls. Is that everything we need to be worried about going into 2020 were it only true?

[C]

I think it's actually worse than that. And it turns out that if you're worried about your vote counting, you might have more to worry about if you're in the city of Detroit or in Broward County, Florida, than you do if you're in a jurisdiction in Texas. And that's because incompetence knows no particular party affiliation. We have incompetent Democrats, we have incompetent Republicans. But we have some places where your vote may not count, not because someone's trying to disenfranchise you, but because they simply don't know how to run an election.

[A]

Okay, so lots more to come. Our Election Meltdown series continues next week, and plus members will have access to an extended interview with Maine's Secretary of State, Matt Dunlap. It drops tomorrow, in which he reveals more details from the Presidential Advisory Commission on Election Integrity, AKA the Voter Fraud Commission, and its various shenanigans. And that is a wrap for this special episode of Amicus from me and from Rick Hassan. Thank you so much for listening in. If you want to get in touch, our email, as always, is Amicus. You can always find [e-mail] amicuspodcast and if you want to know more about Rick's work, you can go to electionmeltdown.com and we love your letters. Today's show was produced, but more than produced, it was actually sherpaed in complicated ways by the divine Sara Burningham. Gabriel Roth is editorial Director of Slate Podcasts. Judge Thomas is senior Managing producer of Slate Podcast, and we will be back with another special meltdown episode of Amicus in a week.