← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
Election Meltdown, Part 3
00:54:02
Delving into the big bag of dirty tricks ahead of the 2020 election.
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- [00:08]
Dahlia Lithwick
Hi and welcome back to Amicus and to this part three of our special Election Meltdown series where we are asking somewhat fancifully whether American democracy can actually survive the 2020 election. I'm Dahlia Lithwick. I cover the courts and the law and a bunch of other stuff for Slate. And with me doing this series is Rick Hass. He's election law professor and author of the book Election Meltdown, on which this special series is based. Welcome back, Rick.
- [00:41]
Rick Hasen
Hi there, Dalia. What a year this week has been.
- [00:46]
Dahlia Lithwick
You know, I was thinking that somehow since this series has started, we've hit the trifecta of all of our issues that we're talking about and we've done it in like a day in Iowa.
- [00:59]
Rick Hasen
Thank you, Iowa, for the inability of the Iowa Democrats Democratic Party to count votes in a timely fashion. You probably heard we don't know the results. What a night. Unbelievable. So we don't know all the results.
- [01:16]
Renee DiResta
It is too close to call.
- [01:18]
Danielle Citron
So I'm just gonna tell you what I do know.
- [01:21]
Rick Hasen
That screw up has been extremely unfair to the people of Iowa. Are we done yet? But we know by the time it's all said and done, Iowa, you have sh. Shocked the nation.
- [01:42]
Dahlia Lithwick
We are here at part three of the series and this part is meant to be dirty tricks. But let's back up and say if we had to use what happened this week in Iowa as a test case.
- [01:55]
Rick Hasen
Monday night we had our first election meltdown of the 2020 season. We have the confluence of some very incompetent election administration, a little bit of claims of fraud and some dirty tricks. So roll it all together and you've got this mess. What happened in Iowa is really something that was not so unexpected for the weeks before the caucus took place. We already saw attempts to spread misinformation and disinformation about whether there was going to be cheating. There were claims that being made that, you know, the fix was in against Bernie Sanders who was surging in the pre caucus polls. And then there were all of these reports that Iowa was going to be using brand new technology and a new set of voting rules in the new election. That's what happened. They tried to do both of those things and it turns out that the new app that they told the precinct captains to download and then use to upload all of the information, well, that didn't work. Right. The phone system that was used as a backup to call into the central Iowa Democratic Party to calculate what all the votes were, well, people couldn't get through in Part we've heard maybe because Trump supporters saw the phone number on TV and started calling and maybe jamming up those phone lines. And so days after the Iowa caucus, we still didn't know who it was that won, and we didn't even know if the counting was done right to the point where the head of the Democratic National Committee, Tom Perez, said, maybe we need to start the counting all over again.
- [03:33]
Dahlia Lithwick
While I think President Trump and some of his supporters have taken great, great joy in the failure of the Democratic leadership to do this right, these are, in some sense, again, bipartisan problems, both disinformation and errors in just administering the elections process. This could happen to anyone at any time. Bad tech, stupid apps, jamming the system. This is a bipartisan problem that's being cast as Tom Perez's fault.
- [04:06]
Rick Hasen
Usually when elections are run in this country, fortunately, they're not run by political parties. They're run by election officials who are paid to do this. But with these caucuses, they're this weird hybrid. You know, we take them as part of the nomination process that goes towards the general election, but they're sometimes conducted by political parties by themselves, maybe once every four years. And they really don't know what they're doing compared to their regular election administrators. But you're right that the Trump campaign didn't just call out the Democrats for their incompetence in running the Iowa caucuses. You had Brad Parscale of the Trump campaign accusing the Democrats of rigging this against Bernie Sanders. You had the Trump kids chiming in. And so what was, again, this pattern that we see? Democrats being incompetent, Republicans accusing them of cheating. It's a very common theme throughout election meltdown.
- [04:56]
Dahlia Lithwick
We've got Bernie Sanders supporters saying that Pete Buttigieg's team actually was invested in that app. It's also intramural smashing each other on the face. And the net effect right, in the aggregate is the thing that you're terrified of happening, which is everybody starts to think not only that it's rigged, but that there's just no point in voting at all. Right.
- [05:17]
Rick Hasen
Yeah. Well, I saw that hashtag that was trending Mayor Cheat instead of Mayor Pete. And yeah, and certainly Sanders supporters believe that they're getting screwed over by the Democratic Party. There are still wounds left from the bitter 2016 primary race between Clinton and Sanders. There's a lot of distrust in the system, and it doesn't help when you have this incompetence. And, oh, we thought we reported 62% of the results, but we actually computed something wrong. So we're going to start over again with the counting. It's just a recipe for people who want to think the worst to be able to have some good fodder to use to make all kinds of conspiracy claims and other claims against the process.
- [05:56]
Dahlia Lithwick
If you could wave your magic wand and do this caucus in a way that didn't basically detonate all over everybody's faces, what would you do? Just go back to paper ballots and phoning in the results?
- [06:08]
Rick Hasen
Well, sure, they could go back to what they did last time, but you know, the key thing is they, even with all of the mess ups at the beginning, what they should have said is we're going to get it right and we're going to announce the results when we're completely done and we're going to have a transparent accounting of what happened. That's not what happened. Instead, they just kind of released things piecemeal. Everybody is on edge because things are changing by the minute and there's no rush. Right. We already missed the night of the caucus to announce those clear results. So the big thing to do is when there is a problem, be transparent about it, own it, and explain why it's not gonna happen again.
- [06:45]
Dahlia Lithwick
Okay, so we're caught up. And now we turn to this third part of the election meltdown series. It's all about dirty tricks. And there's just such a huge amalgam of things that come under the umbrella of dirty tr. But it's the ways in which these dirty tricks can undermine public faith in elections. And that can be from foreign actors like we saw in 2016, or increasingly domestic operatives. Some of this is using new technologies, some is just using old school tricks that seem to keep working. So we're going to talk about all of that and the ways in which when you look at them all together, much as we saw in Iowa, the net effect is that everybody starts to lose faith in elections before we even get to a head to head presidential contest in 2020. You've just given us a rundown of some of the dirty tricks that were deployed by Republicans in Iowa this past week. It does leave this question that is hanging in the air uncomfortably for Democrats. Do you fight fire with fire? So we're going to talk for a minute about a story about domestic disinformation wars and it's got a little bit of a spy novel name, Project Birmingham. Rick, can you tell us what that was about?
- [08:04]
Rick Hasen
Let me take you back to the 2017 U.S. senate race between Democrat Doug Jones, running against Roy Moore, the Ten Commandments judge, a Republican. He was a very controversial figure. Roy Moore was so controversial, you may remember he was accused of an improper relationship with teenage girls when he was in his 30s. He was the judge that defied the United States Supreme Court on same sex marriage. And I think it's only because Moore was such a controversial figure that Democrats had a chance to capture this Senate seat, which had been vacated when Jeff Sessions went on to become Trump's Attorney General. And so, hard fought race between Jones and Moore, and all of a sudden we start seeing what appear to be Russian bots following Roy Moore on Twitter and supporting him. I say apparent Russian bots. They had Cyrillic names. Several of them used Avril Lavigne for their profile pic. One declared I love Russia in its bio.
- [09:06]
Dahlia Lithwick
So these were Twitter accounts almost performing what you could call a parody of what we think of when we imagine a Russian bot. But these weren't real fakes. They weren't Russian bots. So who set these accounts up and why?
- [09:22]
Rick Hasen
So this turns out to be a liberal group called American Engagement Technologies, or aet, and they were funded by a grant from Reid Hoffman, who was one of the founders of LinkedIn. And I don't think, based on what we heard later, Reid Hoffman knew exactly what he was funding. And there were a lot of different parts of this, but there were all kinds of attempts to try to convince moderate Republican voters that they shouldn't vote for Roy Moore. Let me give you some examples of some of the things that this AET farmed out for various operatives to do. One thing was a group called Dry Alabama, which were apparently Baptist teetotalers who were supporting Roy Moore and wanted to outlaw alcohol sales in the state of Alabama. And the guy who was behind this told the New York Times that he was doing it to try to convince moderate Republicans don't vote for Roy Moore. He's too extreme. Then there were the Facebook groups that were created that were Republicans against Roy Moore. One of them tried to endorse a write in candidate and actually promote that write in candidate. There was even talk of creating a super PAC for this write in candidate, apparently looking like it was coming from conservative Republicans, but actually coming from liberals who were supporting Doug Jones. According to leaked papers that were made available to both the New York Times and the Washington Post, but that have never been fully publicly released, the goal of this group was to suppress about 50,000 Republican votes, just convincing them better to stay home than to vote for the extremist Roy Moore. And, you know, the Margin of the election between the two was pretty close to 50,000. I'm not saying that that's what necessarily swayed the outcome, but it leaves you with questions.
- [11:07]
Brendan Nyhan
The project was a failure insofar as the people who funded it and even some of the operatives who carried it out have since repudiated it. I think that style of campaign has at least been stigmatized.
- [11:19]
Rick Hasen
This is Brendan Nyhan, professor of government at Dartmouth, who's done a lot of research on fake news and political influence campaigns on social media.
- [11:26]
Brendan Nyhan
I don't think we know, however, how effective it really was. It's very difficult to evaluate the success of campaign influence efforts that take place via Facebook because the platform is so closed. It does highlight the risk that domestic political actors can use some of the same tactics that the Russians have used. And that really complicates some of the questions we're dealing with here. There's a very strong consensus that foreign actors have no place in our elections. But the questions become much more complicated when it comes to people who are part of our political process but are stretching the boundaries of conventional politics. And our legal and regulatory system hasn't fully caught up with that problem. And I think our kind of media ecosystem hasn't either. The platforms certainly have been caught off guard again and again by these sorts of incidents, and there's no reason to think that they will catch the next one in time. You can't rerun elections, or at least you couldn't, without great damage to the legitimacy of our democracy. So these kind of last minute sneak attacks remain a worrisome threat.
- [12:36]
Dahlia Lithwick
Slate plus members can hear more of your conversation with Brendan Nyhan in an extra episode of this series. So go to slate.com amicusplus to check it out. It's incredibly interesting. And do you agree with Brendan, Rick? This probably actually didn't sway the election in any way. There's just no way of knowing whether it did. And although these activities were unpalatable, they were dishonest. They just weren't illegal.
- [13:00]
Rick Hasen
So I think Brendan's right that we don't have good evidence as to how much these things sway elections. I know that Alex Stainer, who used to be head of security at Facebook, thought Trump's micro targeting was much more important than the Russian disinformation during 2016. It's really hard to measure, but that doesn't mean we shouldn't try and take actions against them if we could. The question is, you know, is it legitimate? We've had dirty tricks before, you know, dirty tricks go Back to the beginning of the country. What's different now is that you can kind of supersize them through the use of social media. Things can spread virally that are false. There's all kinds of ways to try to manipulate public opinion that weren't available before.
- [13:40]
Dahlia Lithwick
And what about Brendan's point that it's different when they're domestic political actors, that that's a whole different kettle of fish than Russians intervening?
- [13:48]
Rick Hasen
So I think, you know, when it comes to the law, we have a lot more tools to deal with foreign interference, and we could take steps. But, you know, there's a controversy now for whether, for example, Facebook should be banning lies by candidates. Right. President Trump puts out a lie, and should Facebook take that down? Well, do we really want Facebook to decide what the truth is? You know, and so the line between what's improper campaign talk, what's illegal, what's ugly, but okay, you know, it's really hard to draw those lines. And I don't know that either Facebook or the government can really be in the business of doing that. But what we've learned is that whatever the Russians tried to do in 2016, Americans can try and do in 2020 themselves. We don't need foreign interference. We can interfere with our own elections, thank you very much.
- [14:38]
Dahlia Lithwick
And we can dress it up as clever campaigning or just free speech.
- [14:43]
Rick Hasen
That's right. And, you know, the kind of the First Amendment stalwarts are out there saying, oh, you know, it's just about what people need to hear, and the truth will rise to the top. I talked about this with Renee Diresta, who's the technical research manager at Stanford's Internet Observatory, about how hard it is to even detect or even define what counts as improper campaigning versus legitimate free.
- [15:09]
Renee DiResta
Speech in the sort of early policy frameworks that the tech platforms came up with to address what happened in 2016, a lot of the emphasis was on taking down content because the actor was inauthentic. So what that would mean is the Russians ran a fake Texas secessionist page. But there's nothing that is inherently wrong with holding the position that Texas should secede. Ergo, real Texas secessionists who are running the same page or the same content would not have been taken down. So that was this idea of authenticity, of actor. When you have domestic actors running those types of pages, that's a perfectly legitimate First Amendment free expression framework for people to express their political point of view. So the question becomes, for platforms, where are the lines between legitimate activism, like people deciding that they're all going to coordinate in a Facebook group and coordinated and authentic activity.
- [16:08]
Rick Hasen
Who is going to be the entity that's going to arbitrate what's true and what's false? Do you trust the Trump administration set up a government agency to tell us the truth? Do we trust Facebook? Right. So we lack good intermediaries to tell us what's true and what's false, even if we thought that was a good idea.
- [16:24]
Dahlia Lithwick
So, Rick, the after effects of what happened in 2016 in terms of foreign interference in domestic elections, they continue to reverberate through this 2020 election cycle. Russian tactics influencing domestic actors, as we've just heard about. Russian tactics likely influencing other foreign actors. We are in foreign interference. Information overload. Can you help me right now sort the signal from the noise here?
- [16:55]
Rick Hasen
So if we think back to 2016, we saw three very different kinds of attempts at Russian interference. First, there was the manipulation over social media, the kind of things that Project Birmingham tried to emulate. Not just false speech, but also provocative speech. Number two, we saw think back to WikiLeaks, Roger Stone, the leaking of embarrassing true emails that came through from the DNC and from other Democrats. And the third thing we saw, and this is maybe the most troubling, although it's hard to rank these, we saw probing and in some cases attempts to manipulate information in state voter registration databases. It might be that the Russians weren't really actually trying to change the databases, but were just trying to undermine our confidence in the process by showing that they could. But it was those three different things that we saw that thanks to the fact that we have a president who's not willing to punish, it really has gone unpunished and, I think, encouraged again for 2020.
- [17:59]
Dahlia Lithwick
Okay, let's chunk those out one by one. Right.
- [18:01]
Rick Hasen
We'll start with the St. Petersburg based Internet Research Agency, which used Facebook, YouTube, Twitter, especially Instagram, although that got undercovered in 2016, even Pinterest, to stir up American political unrest. Renee Diresta researched the IRA on behalf of the Senate Intelligence Committee. She describes it as a kind of black PR social marketing agency working for the Russian government, you know, creating those memes and having troll farms. But they go beyond that and they work to recruit unwitting people into acting on behalf of them in real life, infiltrating activist communities and trying to drive people to participate in the streets, which is maybe why this aspect of the Russian interference has gotten so much attention.
- [18:42]
Renee DiResta
And I think that's because it touched people very directly. So it's very much a social first participatory process that incorporates everyday people into inadvertently manipulating their neighbors as well as continuing to be manipulated themselves. It's very hard for us to say in any kind of material sense what impact that had. Even me with access to the Senate's data set, I could see the number of comments on posts, but I couldn't see what the comments said. So when they ran voter suppression campaigns, I can tell you that in some cases, 900 comments appeared on the post, but I can't tell you what the comments said. Maybe they were saying, no way we're going to go vote anyway. This is a ridiculous suggestion. Or maybe they were saying, right on, we're not going to vote. That's two very different responses to that kind of content.
- [19:33]
Dahlia Lithwick
So this is exactly like what you were saying about Alabama in 2017, in the 2016 presidential election. We have the same problem. We just don't know the extent of the effect that this type of intervention manipulation actually had. We can agree it had some effect, but we're just never going to be able to quantify it. We just can say it had an effect and it's going to have an effect again.
- [19:59]
Rick Hasen
How many people stayed home? How many people voted a different way? That's really hard to quantify. But one effect that we do know is that it's undermined people's confidence in the election process. And we're still vulnerable from foreign and domestic actors. And we make ourselves vulnerable in part because of what Renee Diresta calls bespoke realities. These online environments where we only see what we want to see. News from organizations that confirms our biases, friends sharing stories with the same political views. Brenda Nyhan says these kind of information cocoons result in self sorting, where we form into groups that can be targeted with disinformation about a particular candidate or issue. And this is especially the case for those people who are the most politically aware and the most hyper partisan.
- [20:45]
Brendan Nyhan
The ecosystems that committed partisans live in are an important kind of breeding ground for misinformation that may disseminate from the kind of digital fever swamps out into the mainstream. And it's important to address misinformation at that stage before it spreads more widely. And we've seen this transmission process again and again as fringe claims move from move into mainstream discourse, whether it was the birther myth or claiming that Barack Obama was a Muslim or the Pizzagate conspiracy theory. Again and again, these kinds of claims have started with a group of fringe hardcore believers and then have been amplified by elites and refracted out into the mainstream.
- [21:36]
Dahlia Lithwick
These fever swamps, they can breed conspiracy theories. But that fracturing of audiences and the ability to micro target Americans was also used by the Russians in 2016 to exploit existing rifts and to really focus on one group in particular.
- [21:55]
Rick Hasen
One of the most disturbing things that we saw from the analysis of the Russian activity on social media in 2016 was the targeting of African American communities. The creation of a group called Blacktivist that was trying to convince African American voters that Hillary Clinton was not in their corner and that they should just stay home. It was a whole ecosystem of various groups that pulled in actual African American voters in support of this idea that African American voters should just stay home. But, you know, this kind of micro targeting of messages to try to depress turnout, it's become a lot easier to do through social media and through the virality of various kinds of memes that get spread.
- [22:39]
Dahlia Lithwick
Almost none of this activity is actually illegal under federal election law. Correct.
- [22:44]
Rick Hasen
Well, we could thank Brett Kavanaugh for that, because in an opinion he wrote when he was a circuit court judge in a case called Blumen vs Federal Election Commission, he had upheld the constitutionality of a law that bans foreign election activity in American elections. But he, for First Amendment reasons, read the statute as very limited to apply only to express advocacy. So an ad that said Hillary Clinton is a Satan does not really say vote against Hillary Clinton. It's just declaring her affinity with. Affinity with Lucifer. That does not count as an election ad. And so it's interesting if you go back and you look at the Mueller charges against the Russians back. Remember the very first one was the targeting of those 13 Russian operatives at the Internet Research Agency. They weren't charged with campaign finance crimes, and they were charged with things that were associated with that. But no direct charges. And of course. Right, no direct charges against WikiLeaks, against Roger Stone, all of these entities that could have been accused of engaging in illegal foreign campaign activity, because that's being read so narrowly. It's actually. Much of this activity is actually not illegal, which means it could happen again, even if Facebook is guarding against illegal activity. But, you know, I think it's important to keep our heads attached to our necks at this point and not just give up and say, you know, the Russians are going to be able to mess everything up. Because, you know, even with all of this information out there, it was a drop in the bucket compared to the billions of dollars that's being spent in elections trying to convince people to vote one way or another. Brendan Nyhan talked about, you know, where the Russian activity in 2016 fits into the larger way that people's political opinions were influenced during that election.
- [24:30]
Brendan Nyhan
In 2016, the Russian misinformation was one part of a kind of torrent of misinformation that was directed at Americans, and it seems to have made up a very small part. The same is true for the so called fake news websites that have received so much coverage in the period since the 2016 election. Those untrustworthy websites which frequently published false or unsupported claims about the candidates and about contemporary politics were like the Russian content, a tiny percentage of most people's information diets. So it seems as though their effects were quite limited.
- [25:15]
Rick Hasen
So even if not that many people are being swayed by particular messages coming from the Russians or from anybody else, we're losing confidence overall that the information that we're seeing online is true and that this undermines voter confidence if they believe that there's nobody that can be trusted. You know, there was a recent NPR PBS Marist poll which found that only 62% of Americans think that United States elections are fair. 51% of American surveyed said that Trump had encouraged election interference. Four in ten believe that another country is likely to try to tamper with 2020 election results. I mean, there's just this profound lack of confidence in the process, in part because we're being bombarded with and even having this series and talking about this. Will this cause people to lose confidence in the process? The exact opposite of what we're trying to do, which is an election where the losers will accept the results and will be able to have a hard fought but fair contested election with a clear winner and a clear loser and a chance to fight in the next election.
- [26:25]
Dahlia Lithwick
So this is kind of profound, right? You're saying that we're sitting here trying to delineate the line between true and false, real and fake, manipulation and advocacy, and in so doing, we are feeding this just general nihilist sense that everything is fake. And yet I think it's probably meta, as it sounds like, useful to try to parse what is real and what is fake. So can we look with an understanding that we're making people crazy, can we look at another face of this beast of disinformation, which is deep fakes.
- [26:59]
Danielle Citron
I'm Danielle Citron. I am a professor of law at the BU Law School and the vice president of the Cyber Civil Rights Initiative.
- [27:06]
Rick Hasen
So Danielle Citron wrote a paper with Bobby Chesney of the University of Texas examining the threats that deep fakes pose to national security, to privacy and to elections.
- [27:16]
Danielle Citron
It's easy with just a few photos to create a completely fabricated video of someone doing and saying something they never did and said. And we were thinking, you know, what about the presidential campaign coming up and the campaigns across the world, and what are the implications going to be for the power that video and audio has over each and every one of us? It's so persuasive, it grabs us in the gut. And what if it's timed just right the night before an election?
- [27:41]
Dahlia Lithwick
And this is really quite terrifying, the notion that something, I guess we haven't yet seen, which is we could see what looks like an absolutely truthful video of a presidential candidate that's been completely chinned up in an underground lab. Not true.
- [27:57]
Rick Hasen
Yep, that's pretty scary. But that's not all there is to deepfakes. Just as Brendan Nyhan was talking about with disinformation. Generally, false information is a problem, not necessarily because people are going to believe the fakes, but because it's going to undermine our trust in real, true information, also known as facts. In the case of deepfakes, Daniel Citron and Bobby Chesney have come up with a term they call the liar's dividend. The idea is that deepfakes make it easier for liars to avoid accountability by claiming things that are in fact true are actually not true. The existence of deep fakery, then, can be leveraged by bad actors to cast doubt on things that actually happened. Of course, President Trump is the world's loudest, quote, fake news proponent. He even claimed that the Access Hollywood tape wasn't real.
- [28:46]
Danielle Citron
Not only did the President say that about the Access Hollywood audio tape, but he also said it about the Holt interview. You know, the interview where he says, it's just this Russia thing. You know, I fired Comey because I wanted this Russia thing behind me. And he said about a year after the interview, that was just fake. Can't believe anything you see in here. I never said that. And my sense, at least, and this is anecdotal, but my sense is from talking to people about, especially Trump supporters, is that they believe it, that they believe that it's all fake news and that, you know, the President can do no wrong. And then, of course, he wasn't thinking about Russia. He was just thinking Comey was a bad guy, he wasn't loyal, and he needed to be fired. I think people, it's not surprising because we know that we have motivated reasoning, so we tend to that. You know, the notion of confirmation bias is that we tend to believe information that accords with our own, you know, viewpoints. And so for folks who are motivated to believe the president that what he says is true and that it's fakes, you know, it's a fake, the Holt interview or the Access Hollywood tape, then for that audience, they're gonna believe him. So confirmation bias just. It will reinforce your own thinking and viewpoints.
- [30:12]
Rick Hasen
This is dangerous, not even for those who have the technical ability to create a sophisticated deep fake. You may remember there was the cheap fake, which was when Nancy Pelosi's words were slurred. And it was just kind of slowing down a video and changing the pitch a little bit to make it seem like Pelosi was drunk. And if people want to believe that, you know, the idea that Nancy Pelosi is. Is drunk, you know, speaking in public, people are going to believe it, you know, so. So it's really hard to get someone who wants to believe something bad about the other side to recognize that maybe they're being manipulated and maybe things are not as they appear.
- [30:54]
Dahlia Lithwick
This is the Steve Bannon playbook, right? Just flood the zone with garbage. And this is also the Putin playbook, right? Flood the zone with garbage. And at the very best, you get people to believe something that isn't true, and at the very worst, they don't believe anything is true. And it's kind of win, win. Except if you care about trut truth, it's lose, lose. I'm going to ask you the depressing question I keep asking you, but is there some role for, let's say, the law in regulating all this?
- [31:22]
Rick Hasen
Well, you know, Facebook and these other platforms, they're private actors, so they can kind of do what they want. Now, one thing California is trying to do is to regulate deep fakes by banning them, you know, but not banning parody or satire. I can't wait to be the judge that has to decide what counts as legitimate parody.
- [31:41]
Dahlia Lithwick
It's not funny. Yeah, that's gonna be cool.
- [31:44]
Rick Hasen
I think a good approach would be a law that requires any kind of manipulated video to be labeled as manipulated. So it could be satire or not satire, you know, at least giving voters more information, more transparency. But I'm not sure that that would work. And Danielle Citron is not sure either.
- [31:59]
Danielle Citron
The difficulty is finding the perpetrators, ensuring that those perpetrators are in our jurisdiction so that they live in the United States in a jurisdiction which we can prosecute them. And then for civil suits that you resources to sue someone, and that it's timed in a way that it will make a difference. Right? So for the deepfake release the night before an election, the harm is done when it tips the election, not, you know, the after effect of suing later on. Those sorts of remedies, they exist. They're modest. The problem is, you know, can we save ourselves, right, with counterspeech? Can we think of the marketplace of ideas as something that we can engage in and that truth will rise to the top? And I'm really worried. Law has a really modest role to play when it comes to elections and speech about matters of public importance. And if law doesn't, can we fix this ourselves? And are we at the mercy of Facebook and Twitter to fix it for us?
- [33:01]
Rick Hasen
Dalia, maybe you need to lift your head up off the desk.
- [33:05]
Dahlia Lithwick
You remember when you told us we had to keep it together? Mine actually just popped off. It's rolling around the podcast booth like a soccer ball. And we're not even done on dirty tricks yet. Okay, my head's back on. We are moving on from social media disinformation campaigns that are run by Russian contractors at the Internet Research Agency. Now we're running into the legit spy stuff, the gru. This is Russian military intelligence just working straight up directly for the Kremlin to meddle in US Elections.
- [33:38]
Rick Hasen
Right? So now we're talking about things that are clearly illegal. Less about social media, more about stealing and weaponizing information. Renee Jiresta spent most of 2019 researching what the GRU was doing with their hacking and leaking operation using a data set that Facebook had provided to the Senate Intelligence committee. And what DiResta found was that the hack and leak started out as a failure. When the Gruff first released information over.
- [34:06]
Renee DiResta
Facebook, they got almost no engagement at all. And that's because they didn't, you know, they didn't run any ads. They didn't do any audience building tactics. They created Facebook pages. They tried to entice people to go to their document drops, and nothing happened. And then what you see is you see them begin to DM journalists, and you see them begin, you know, per the Mueller report, to reach out to WikiLeaks as well, and to capitalize then at that point on the larger audiences that mainstream media coverage or WikiLeaks audiences afforded them. And what you start to see then is anytime they want to control a media narrative or shift a media narrative, a new set of documents is dropped. For example, immediately following the, I believe it was Access Hollywood tape, there was a new kind of tranche of documents that was released the next day, right Change the conversation.
- [34:57]
Rick Hasen
So, look, we don't know exactly what's coming at us in 2020, but I think we can expect Russia to repeat successful tactics like the hack and leak. Just last month, it was reported that the Russians hacked the Ukrainian energy company Burisma, a name we've heard a lot.
- [35:11]
Dahlia Lithwick
Convenient.
- [35:12]
Rick Hasen
Renee Diresta says this tactic poses a big question for journalists.
- [35:17]
Renee DiResta
How do you cover a hack? People will think of it as newsworthy, and oftentimes the documents contained therein, you know, it's a glimpse into the behavior of powerful figures. One thing that we've seen with GRU hacks is that they are willing to incorporate manipulated or false documents in there as well. So this is a challenge for media as they think about racing to break something while at the same time validating the content and contextualizing it as what it is. Media wasn't doing a very good job of that in 2016. So the question about will they be better prepared with a plan for 2020? Still an open one.
- [36:00]
Dahlia Lithwick
So this goes back to your earlier point, Rick, which is it's bad enough that you can have a hack and a dump, but now you're saying, oh, we could have a hack and a dump. And some chunks of that dump are just completely fabricated. And the people who are supposed to in the moment, breaking news, ferret out what is true in that dump and what is completely false are the press who have no skills to do that in the moment.
- [36:23]
Rick Hasen
Yeah, well, it's this misinformation mashup is especially dangerous because, you know, what is the instinct of the press? Gotta be first. Gotta get the scoop.
- [36:33]
Dahlia Lithwick
Yeah.
- [36:34]
Rick Hasen
And so there's gonna be a rush to publish before there's full vetting. And lots of journalists are responsible, but it doesn't take much for something to be spread and for people to find it, even if some journalists are acting responsibly.
- [36:48]
Dahlia Lithwick
And three weeks later, when you say, oh, this Burisma thing, this part of it is fake, is really too late. Let's just look at the last stop on the high tech meddling. And that is what your worst case scenario, your thing that scares you the most.
- [37:06]
Rick Hasen
So, you know, I talked about how the Russians were sneaking around state voter registration databases in 2016. Doesn't look like they did much damage. Although, you know, not all the information's been released. Right. So one of the fears, Marco Rubio talked about this. What if Florida voters go to the polls and they're using an electronic poll book, you know, which lists everybody's name and that they're eligible to vote. What if that's all messed up and people can't vote on that day and people have to cast thousands of provisional ballots? It would be a huge mess. It's worrisome, but I have a much worse scenario. And when we think about election security, it's not just about the voting machines. Are the voting machines going to be hacked? It's not about the voter registration databases. What if there's attack on a power grid in the city of Detroit or in the city of Milwaukee? You know, pick a swing state, pick the Democratic city with the large Democratic minority population and turn the lights off. The Russians were able to do this in Ukraine in 2015. You know, they kind of practice on the Ukraine before they get to us. And, I mean, I'd like to think that the president would treat that as an act of war, but he might actually invite that to happen. And so I don't think our election officials, if you think back to what we heard about Detroit in an earlier episode, I don't think election officials in Detroit would be prepared to deal with people not being able to get to the polls. I don't think the courts would be prepared to think about, do we want to have an election do over in the state of Michigan that could determine the outcome of the election? Do we want to leave that to Neil Gorsuch? I'll leave that question to you.
- [38:31]
Dahlia Lithwick
So you hear that Michigan bring candles.
- [38:36]
Rick Hasen
It's gonna take a lot more than that.
- [38:38]
Dahlia Lithwick
Rick, you're not done with dirty tricks yet, are you?
- [38:42]
Rick Hasen
No. You know, we've talked so much about high tech dirty tricks, but it doesn't take a black site or a troll farm or a deep fake to try to erode confidence in our elections. Remember that very first piece of audio in part one of this series? President Donald Trump's scattershot dissembling on voter fraud, calling out California.
- [39:00]
Joe Bruno
When I look at what's happened in.
- [39:01]
Rick Hasen
California, California with the vote, Florida, that catastrophe that took place in Florida. But he seemed really reluctant to talk about what was going on in North Carolina. If anything, you know, I guess they're.
- [39:09]
Joe Bruno
Going to be doing a final report, but I'd like to see the final report.
- [39:12]
Rick Hasen
Well, I do want to talk about North Carolina and North Carolina's 9th congressional district in particular. And to do that, I got in touch with TV reporter Joe Bruno of WSOC tv, who's emblematic of one of the pillars of our democracy, shoe leather, local reporting. And I'm going to let him tell the story, taking us Back to the election in question, a race for North Carolina's 9th congressional district in 2018.
- [39:34]
Joe Bruno
This was a race that a lot of people were watching. It was one of the races that people were seeing, taking a closer look at to see if a Trump district that swung to him by 12 points could swing to a Democrat during that year. And a lot of money and a lot of resources were invested in the Democrat in that race, Dan McCre. He was facing Mark Harris, who is a pastor in Charlotte. Harris is a more conservative Republican. Dan Macready is a more moderate Democrat. The race was being flooded with ads. This was, it was being covered very heavily. And it ultimately came down to just a couple hundred votes on election night in 2018.
- [40:19]
Dahlia Lithwick
So what is it that threw this whole election into question?
- [40:22]
Rick Hasen
Well, it involves absentee ballots, how they were collected, who collected them, and what was done with them. In poor rural Bladen county, population 33,478 people, in the 2018 general election, the absentee mail in ballots overwhelmingly favored the Republican candidate, Mark Harris. And then people started looking back further in time in Bladen county and a pattern emerged.
- [40:43]
Joe Bruno
We looked at the 9th congressional district race in 2016 that was a little surprising because we saw that Mark Harris only received a handful of votes, four votes in that election. The incumbent at the time, Robert Pittenger, he received one vote. And then a guy by the name of Todd Johnson received 98% of the absentee by mail votes with a total of 221. In the 2018 primary, Mark Harris put up huge absentee by mail numbers against the incumbent, Robert Pittenger. 437of 456 Absentee by mail votes went to Mark Harris. Incumbent pittenger only received 17. So I mean, here's you're looking at these huge numbers that these candidates are able to rack up against an incumbent. And the thing that Mark Harris had in common with Todd Johnson in 2016 was that he had someone on his campaign team. The same person, McCrae Dallas, who was running this absentee ballot operation for him in Bladen County.
- [41:47]
Dahlia Lithwick
Okay. She says, sighing. Who is McRae Dallas, Rick?
- [41:51]
Rick Hasen
Well, he spearheaded the operation to collect these absentee ballots in Bladen County. He's being paid by Mark Harris. He's also an elected official and he's still on the Bladen County Soil and Water Commission Board.
- [42:02]
Joe Bruno
He has a reputation down there for being a political operative. He worked on several different local campaigns and he was hired by the Mark Harris campaign through third party consulting firm called Red Dome to basically run Ship down there.
- [42:18]
Dahlia Lithwick
And, Rick, can you tell us what, quote, running ship means down there in Bladen County?
- [42:23]
Rick Hasen
Well, I think we know some of the story, but not all of it. What we do know is largely thanks to reporting by Joe and other reporters down there. Once the alarm bells started ringing about these weird absentee ballot results and some affidavits got leaked to Joe, he drove down three hours to Bladen county, and here's what he found.
- [42:42]
Joe Bruno
And the first day we were there, we went an apartment complex in Bladenborough where there was just a cluster of people who requested to vote by mail. And just talking to people, just randomly encountering them in the parking lot, talking to them about the election. The first guy we spoke to in interview told us that lady in a Mark Harris T shirt came to his store and asked for his absentee ballot. And he handed it to her. And we said, you know, why'd you do this? I mean, are you worried that your vote counted? And he basically said, I didn't think anything of it. I just. Somebody came to door and asked for my ballot, and I gave it to them. So that was our first sign of wrongdoing, because in North Carolina, you are absolutely not allowed to collect another person's ballot. And here we just interviewed a man who said that that's what happened.
- [43:31]
Rick Hasen
And the evidence of wrongdoing just kept piling up. Joe was contacted by a source who handed over copies of absentee ballot envelopes. And the envelopes had some interesting characteristics.
- [43:41]
Joe Bruno
What we found was just a pattern of the same people signing as witnesses. That's a really unusual thing, because if you think about it, if you're sending in an absentee ballot and you need two people to witness the ballot for you, who are you going to ask? You're probably just going to ask somebody who's in the room with you or, you know, a family member or a friend, just whoever's sitting near you. And here we had the same group of people repeatedly signing some of them dozens of ballots. So that showed that, I mean, unless they have a lot of friends, that showed that there was signs of a ballot harvesting operation.
- [44:18]
Rick Hasen
So Joe and his team tracked down some of these people who were, you know, like Zelig, showing up witnesses everywhere. And he talked to them, you know.
- [44:28]
Joe Bruno
For 75 or $100, that's all these workers were being paid to pick up these ballots. One person told me that they needed the money for Christmas, and they just thought it was good work. They thought it was trustworthy work. It's elections. They Thought they were doing a good thing. They were never told by mccrae Dallas that what they're doing is illegal. And it seems like mccray always knew what he was doing was wrong.
- [44:56]
Rick Hasen
So at this point, the story breaks open. It's getting national attention. The state board of elections launches an investigation. And here's the good news I was promising you. It kind of worked the way you would hope, albeit with a couple of dramatic moments. There's a hearing before the commission, and mark harris is on the stand, and he's being asked questions about what he knew about the hinkiness of the mccrae Dallas operation and whether he shared any information with his son. And he's claiming he doesn't remember. I think he claims he doesn't remember. Four times. They have a recess just before Democratic attorney Mark elias was about to pounce on him in cross examination. And he says, yeah, you know what? Let's have a new election. And the bipartisan board of election votes to throw out the results of the election and do it over. That's a pretty rare thing to happen, that an election is so infested by concerns about fraud that there has to be an election do over. So a new election is held. The state starts tightening up some of its rules about ballot harvesting. And, you know, Joe bruno says, that took a while. Things finally seemed to be moving in the right direction.
- [46:09]
Joe Bruno
The people of blaine county are extremely nice and friendly people who care about their local elections. It just seems like they were taken advantage of in this situation. And for weeks, national media descended upon this small community and really shed light on everything. And it took a lot of sunlight to really disinfect some of the issues that had been plaguing that county for several years. But I believe that I would say that the people of blaine county are a lot better off now that they can trust that the elections that they are having are fair, that these absentee ballot harvesting programs are no longer being run, and they can trust that the person that they have representing them in congress or maybe in a local office is there because that's who people want to be in place.
- [46:58]
Dahlia Lithwick
If this has been happening for years and years, why does it only just come to light in 2018?
- [47:03]
Rick Hasen
Part of the reason is that, you know, bladen county is three hours from charlotte, and, you know, you don't have a media presence that's down there observing things really closely. But also, state election officials were concerned about what mccrae Dallas had been doing in earlier elections. They had brought it to the attention of the united states attorney and the United States Attorney, who as a Trump appointee really had not focused his attention, and they still have not really focused all that much attention on Bladen County. Instead, they've kind of gone after really low level voter fraud just to try to make a splash. At one point, they went after a poll worker who had registered her boyfriend, who was a permanent resident but not a citizen, to vote. They asked the person that they were handing the voter registration form to if he was eligible to vote. They did not check the box that he was a citizen. And she was eventually part of a plea deal. She pled guilty to voter fraud. And the press release said, North Carolina election official, because she was a poll worker, pleads guilty to fraud. And so they trumpeted fake voter fraud, but didn't focus on what the state really wanted them to focus on, which was real voter fraud. And one of the investigators for the state said he just had no idea why the feds were not interested in in what seemed to be a serious fraud operation going on in Bladen County.
- [48:26]
Dahlia Lithwick
Even though good shoe leather reporting smokes out a pretty horrifying story of a systemic problem, a little bit of what you're saying is the legal systems are not always adequate to address them. This really required a massive vote harvesting operation before anyone sort of kicks in with actual legal consequences.
- [48:48]
Rick Hasen
Well, so here's maybe more of the good news story, please. There is. Everyone's paying attention to elections. And when there are anomalies like this guy Mark Harris getting the lion's share of absentee ballot votes in a part of the jurisdiction that should be voting for Democrats, red flags go up. Right? So we see all kinds of weird patterns in voting. That's a signal that there needs to be an investigation. And although the federal government did not step up quickly, the state government did, and it did the right thing. And in a state like North Carolina, you know, you've talked about it a lot on your show. Lots of fighting over voting rules in that state. Here, the state Democrats and Republicans were able to get together and to deal with the situation and hopefully take steps so that it can't happen again in a place like Blaydon.
- [49:37]
Dahlia Lithwick
One of the paradoxes that we are dealing with here is that we are just doling out horror stories and bad news. We talked a little bit about Project Birmingham. We talked a lot about Bladen County. We're talking about bad actors and malefactors that we don't even know about, doing things we may not hear about. And it would be entirely reasonable to say the system is broken. And yet. And yet the system is fixable. It just can't be fixable in October of 2020. We need to fix it now. And I think the meta part of this entire show is that people need to believe in systems. In other words, if we don't fix them, all we're going to do is foster more doubt. But if we can persuade our elections officials, our political officials, our voting public that actually there are tweaks to systems that could make this thing serve all of our interests, then let's do that. Right. That that's all you're really calling for, is have confidence that systems can be tampered with, but also that they can be fixed and work to fix them.
- [50:46]
Rick Hasen
So the first thing I'd say is it's not an on off switch on whether or not the system works or doesn't. We need to think about this in terms of 2020 as what are the things we can do to lessen the chances that dirty tricks and attempts to manipulate the process are actually going to interfere. And so we want to take it step by step. I don't share Joe Bruno's optimism overall, but I think the message here is one of activism. You know, you have to kind of take it in your hands and say, what can we do to make sure that systems are transparent, people understand what's going on, and that there are steps taken proactively to make sure that when there is an attempt to try to mess with our elections, we're ready and we're ready to react in a way that's going to reinforce the strength of the system and not further bring it down.
- [51:28]
Dahlia Lithwick
And what's your answer to the normative question that dances throughout all of this, which is, should Democrats be engaging in their own dirty tricks? Do you fight fire with fire? Is it a mistake to disarm on one side?
- [51:43]
Rick Hasen
Well, you know, I think this is a different situation than, for example, Democrats not having a super PAC when Republicans have a super pac. I don't think there's something immoral about having a super PAC in a regime where they're allowed. But I do think there's something immoral about trying to suppress the vote by spreading misinformation or trying to demobilize people. You know, that's the kind of thing that we saw time and again. We saw the Russians do it in 2016. We saw some of the pro Jones forces trying to do that in the Project Birmingham situation. I think we don't want to see anyone engaging in tactics that demobilize people and try and convince them that there is no point. And that, of course, is the danger here. We're having a five part series on Election Meltdown and, you know, one answer is just to crawl under your desk and not come out till after the election. And I think that's exactly the wrong reaction here.
- [52:38]
Dahlia Lithwick
And so, Rick, what's coming in part four of Election Meltdown next week?
- [52:42]
Rick Hasen
So we're going to deal with what I consider to be a very difficult question. When is it okay to call an election stolen or rigged? We're going to talk about the rise of incendiary rhetoric with Professor Carol Anderson. She's the Charles Howard Candler professor of African American Studies at Emory University, whose book One Person no How Voter Suppression is Destroying Our Democracy is something everyone should have on their shelves.
- [53:07]
Dahlia Lithwick
I blurbed that book. Such a good book. That is a wrap for part three of our Election Meltdown series here on Amicus from me and from Rick Kasson. Thank you so much for listening in. If you want to get in touch, our email is amicuslate.com youm can always find us on Facebook, facebook.com amicus and today's show was produced by Sarah Burningham. Gabriel Ross is editorial director of Slate Podcasts and June Thomas is senior managing producer of Slate Podcasts. Slate plus members, you have a bonus episode coming your way again. Everyone else, back with you next week for part four of Election Meltdown.