“The Good, the Bad and the Ugly” of Election Integrity

>> Bill Whalen: It's Monday, October 14, 2024, and you're listening to Saints, Sinners, and Salvageables, a Hoover Institution podcast examining America's Democratic process and the many challenges inherent in staging elections in these charged partisan times. I'm Bill Whalen, I'm the Hoover Institution's Virginia Hobbs Carpenter distinguished policy fellow in journalism.

Before I go any further, let me explain what we're up to today and what we'll be offering in the weeks ahead. Two years ago, we introduced Saints, Sinners, and Salvageables as a companion to our Matters of Policy and Politics podcast. We did so because of your interest in America's elections, but also because here at the Hoover Institution, we have one of the nation's foremost authorities on elections and election law.

That would be my colleague, Ben Ginsberg, the Hoover Institution's vocal, distinguished visiting fellow and a nationally known political law advocate who's now involved in several projects involving election integrity. One example of Ben's work? He recently helped organize a symposium at the Ford Presidential Library called Ballots and Battlegrounds.

It featured elected officials from a handful of battleground states discussing safeguards in place. Ben, thanks for coming back on the podcast and for bringing back another round of Saints, Sinners, and Salvageables. Boy, the election's only three weeks away, Ben. But my gosh, it seems like 2022 was just yesterday.

>> Benjamin Ginsberg: Yes, it certainly does Bill. Thanks for having me back, and I'm looking forward to this.

>> Bill Whalen: Great. So today we're gonna kick off the series by doing just sort of an overview of things Ben. And let's begin with this, the title of this podcast, Saints, Sinners, and Salvageables.

Who are the saints? Who are the sinners been and who are the salvageables when we're talking about American elections?

>> Benjamin Ginsberg: Well, it's interesting, Bill. It sort of depends on which side of the physical divide you're standing on. Who are the saints? Who are the sinners? I think everybody agrees on the salvageables.

So the saints are either the people who are working with election officials and upholding the democratic process, or the saints see themselves as those who have been calling the election system flawed, rigged, and fraudulent and demanding a fix to save american democracy. The sinners are, of course, the opponents of either, and the salvageables are those on either side who might listen to some logical persuasion and who has the upper hand these days Ben.

I think that the weight of governmental authority is certainly with and facts is on the side of the people who uphold and say our elections are reliable. After all, in all the clutter and all the noise and all the court cases brought after the 2020 election, there has been no evidence of fraud that would have overturned any election results.

So I think the upper hand is with people who have facts and evidence on their side.

>> Bill Whalen: Okay. That is good to hear. So, Ben, I study the weather religiously because I have family in the southeast. They are very prone to getting sucked by hurricanes. Indeed, one family in Greenville, South Carolina, got whacked by it.

Normally, it's the family in Charleston, South Carolina, gets hit. So I wanna make an analogy here, and in no way do I wanna seem insensitive to the plight of people who've been suffering through these terrible storms lately. But, Ben, when we talk about american elections, it strikes me that we're kind of talking something similar to a very terrible storm that's fast approaching Florida.

It's a big, menacing looking blob that is slowly moving in our direction. It's a question, Ben, of exactly where it's going to make landfall. Like a storm bent. It's a question of how quickly the storm is going to move through and how much damage it's going to construct.

Do you like that analogy, or do you think I'm off base here?

>> Benjamin Ginsberg: Well, I don't think you're off base. I think we have been hearing a lot for a long time, that challenges, again, without evidence, the basic, fundamental institution of american elections. That institution is key to what we do as a country in terms of the peaceful transfer of power.

It's key to the consent of the governor no matter who wins the election. You need people to believe that the results are accurate. And there is so much noise about the issue that it is a gathering storm. And it all very much seems to be focused on November 5 in a handful of states, unprecedented amounts of litigation, which is certainly gathering clouds, thundering, ominous rhetoric, which I suppose we could say is the thunder.

>> Bill Whalen: Yes.

>> Benjamin Ginsberg: And the sheets of rain are, I think, all the people who do seem to be very hyped up about this issue.

>> Bill Whalen: Okay, good. So not based on that. You know, one challenge I find here, Ben, with how America does elections is we live in this very cynical age where people are just prone to conspiracies.

They're prone to looking at something and quickly thinking it's fake, it's artificial, you name it. We just pick apart everything in society this way. And elections, Ben, are prone to this same problem in this regard. It's a visual problem for people. You watch the turns on election night in 2020.

This was the case. And there's Donald Trump ahead on election night, the so called red Mirage as you see it. But then what comes after the election and the days afterwards, what's called the blue shift. In other words, a republican candidate does well on election night. But then when the absentee votes, when the mail in votes get pounded, it kind of shifts the democrats pen.

And this makes some people leery. And I don't know how you change this, given the way we do elections. If in 2024, once again, we're going to see the red mirage, the blue shift. And actually, that's one of the questions here, Ben. Are we going to see that same red to blue shift?

>> Benjamin Ginsberg: Well, I think we're certainly going to see that a shift. So some states count election day votes first. They tend to be republican. Other states actually do count their mail votes first because they're allowed to pre process them, and then they just go into the regular election night counts.

So the red wave and the blue mirage is a real thing, but it depends on states. And one thing that I think people need to be aware of is you're not going to know who won this race on election night. In fact, policymakers in five of the seven battleground states have put in laws or policies that are going to actually slow down the count from four years ago.

And they're doing that in the name of their version of wanting to get it right instead of wanting to get it fast. And that's probably a good policy, except for the turmoil that we all remember from 2020 in that period between the close of polls and the following Saturday, when it wasn't clear who won the election.

>> Bill Whalen: Yeah, one challenge Ben, is that if you look at the two parties right now, democratic voters and republican voters have very different attitudes when it comes to how they plan to vote. I'm not talking about the percentage who plan to vote, but how Democrats, Republicans vote. The Pew Research Center, Ben has been doing some interesting numbers on this.

They found that 54% of Trump voters say they will only vote in person. Only 20% will do it by mail ballot. Conversely, the Harris voters, only 35% say they will vote in person. 42% say they would rather do a mail ballot.

>> Benjamin Ginsberg: Yeah, there is a real difference in sort of attitudes among the country.

It is interesting what the Republican Party is going through. Many years I worked for the Republican National Committee and candidates running, we always had very active mail balloting programs and took great advantage of it. We are, after all, the older of the two political parties. And so the convenience of the voters through mail was an attribute we put into play with great success.

That obviously has been different with Donald Trump as the president, so that now republicans do not like to vote by mail as much as Democrats and do want to vote in person. But that is a flawed political strategy, as you can see today from the mixed messages coming out of the Republican Party and its nominee.

In the Republican National Committee has a very active program, really championed by Laura Trump to get people to vote early, because that is a much sounder practice for wily political operatives on the ground to have the votes banked before election day. Yet there is that fear articulated by Donald Trump about the accuracy of mail voting.

So you've got a little bit of a mixed message coming through the Republican Party that's reflected in those statistics from pew you just mentioned.

>> Bill Whalen: So the mixed message would be that the daughter, Laura Trump, the head of the RNC is saying, vote early, make sure your vote gets counted.

But her father, the nominee, has been saying, don't vote early because we don't trust your vote getting counted, right?

>> Benjamin Ginsberg: Well, some of the time, I mean honestly, Donald Trump has urged people to vote early. Donald Trump has urged people to vote early on some occasions, but then on others, not so much.

And even in a number of his rally speeches where he is criticizing the practice of mail voting, there is signage right above him that says vote early. So there is a bit of a mixed message problem.

>> Bill Whalen: Yeah, one other thing that Pew has found, Ben, is there's been a market decline in requests for mail ballots.

Pew says these requests are down 58% from 2020. They've also found that fewer voters are using mail ballots in 2024. Right now, they're estimating 31% versus 46% back in 2020. Now, I can easily say, well, we're not on the heels of a pandemic right now as we were in 2020.

So maybe more people are willing to vote in person, but would you read anything more into that, Ben? Does it get into questions of enthusiasm? Does this get into questions of the voters fondness for the two candidates?

>> Benjamin Ginsberg: I think it's more a process question. Look, I think more people would prefer to vote in person.

I think in 2020. It was really challenging to do that with COVID. I think that there will probably be more mail voting in 2024 than there was in 2016, but far less in 2020. And especially because it's not started in every state yet. I would be a little bit cautious about reading too much into those numbers.

>> Bill Whalen: Yeah, I was just looking at a map before we came on the air, Ben, and I was just shocked by how many different states have different times when they triggered the vote. Pennsylvania has been doing this. Gosh, going back to, what, mid September, I believe. I think Nevada is doing it starting in the next couple of days.

So there's no uniformity?

>> Benjamin Ginsberg: No, no, no, we believe in a fierce federalism where each state and indeed each locality gets to make up a lot of its rules.

>> Bill Whalen: Okay, Ben, let's talk about those states. So a 50 state election, but I agree that it's basically a seven state election.

Those are two states in the south, North Carolina and Georgia, two in the west, Arizona and Nevada. The new west, I guess the near west, as I like to call it, and then three in, I don't wanna say rust belt. That's insulting but Wisconsin, Michigan, Pennsylvania. So that's seven states in all Ben.

Let's talk about what these states have and have not done since 2020 and 2022. And here I'm going to turn to our friend Clint Eastwood and let's talk about the good, the bad and the ugly. So, Ben, I've assigned these states to various categories here, and I want you to push back where you think that I am mistaken.

In the category of good Ben, I have Georgia, Nevada and Michigan because they moved up their voting timelines. But I think you don't entirely agree with that assessment.

>> Benjamin Ginsberg: I don't. I certainly do agree about Michigan. That has done a lot to move up its timeline in that Nevada still has a rule that allows mail ballots, those marked on election day, to be returned up to four days after the election.

It's the only one of the seven battleground states to do that. And so if it's tighten in Nevada, you're gonna wait a long time for that to actually know what happened. Georgia has done a lot to improve its timeliness. Remember, this was a state that managed to hand recount 5 million ballots in 2020 by November 19.

So the Georgia election system is very efficient. There is currently a state election board that is passing rules that if they're not struck down by the courts, stand to slow down that process a lot. They're calling for a reconciliation account of the actual number of ballots cast with what goes through the machines, which will slow down the results.

They've also passed a rule, and this sort of supersedes state law, so I'm not sure it's gonna hold up. That says that local election officials, if they believe that there is a problem with fraud, can go about looking at specific precincts, election results before they certify. And so that can slow down the process.

So Georgia, structurally, I would agree with you on, but there are some developments that would throw it into question potential.

>> Bill Whalen: Okay, a conspiratorial mind might ask who are these election officials? Who are these?

>> Benjamin Ginsberg: Well, Donald Trump shouted out the three that now make up the new majority of the Georgia state election board at a rally he held a couple of months ago in the state.

And so they are Trump supporters.

>> Bill Whalen: Okay, so no funny business money election officials, you think? Okay, so the good we had Georgia, Nevada, Michigan. But you pushed back on that the bad Ben? I chose Wisconsin for this reason. They looked at processing absentee ballots before election day legislation.

The legislature wouldn't play ball.

>> Benjamin Ginsberg: Well, two states did that, Wisconsin and Pennsylvania. Pennsylvania also is not allowing the pre processing of ballots before election day. That will slow things down. Historically, Wisconsin does a pretty good job of getting its results in early. They were about 4 or 05:00 p.m on the Wednesday after the 2020 election.

But one thing that slows it down that they didn't fix was a central count system in I believe, the 39 cities of Wisconsin. That's especially true in Milwaukee. If they counted those ballots in the precinct, it would get done much quicker than in a central count. But Wisconsin is still a pretty sound system.

Pennsylvania, as you mentioned, does not process things quickly. They have 67 counties with a great deal of autonomy. They can't process till election day. It took until Saturday last time. So again, if it's close margins and a lot of mail voting, it's gonna take a while for Pennsylvania to get done.

>> Bill Whalen: Yeah and then finally, the category of ugly. I had Pennsylvania and Arizona because they had very complicated vote counts last time. I'm not sure what they've done differently to change that.

>> Benjamin Ginsberg: Well, Pennsylvania, we just talked about, Arizona did not change a law that allows mail ballots to be dropped off in the polling place up to 07:00 PM on election day.

And Donald Trump said, don't trust your ballots to the mail. So Maricopa county, home to 60% of the state's voters, got 500,000 ballots, walked in on election day. So that took a real long time to process. Another factor that's gonna make Arizona potentially ugly is that there are so many races and referendum on the state ballot that Maricopa county has had to go to a two page ballot for the first time in history.

So that doubles the number of pieces of paper that will have to be processed in Maricopa county before they can announce results. So I think we can agree that's kind of ugly.

>> Bill Whalen: Ben, what happened to the we the people act? Once upon a time, there was this idea to fix elections.

It was called the we the People act. The idea was to create uniform standards for federal elections. What happened? What happened to this noble crusade?

>> Benjamin Ginsberg: Well, it was for the People act, and really it should be subnamed for the Democratic People act. It was sort of a Christmas tree bill for groups on the left who wanted all sorts of fixes, would have added things like two Senate seats in places that would have voted democratic, was the Democrats wish list on campaign finance.

And redistricting did all sorts of things to the courts. Basically, it was a monster that died of its own weight. Part of the provisions were an attempt to federalize elections. One of the things that I think absolutely holds true for elections is that one size does not fit all that.

In point of fact, the way people vote in an urban area is not the same as the way they vote in a rural area. I think the people who drafted that act forgot to talk to election officials, because I do a lot of work with election officials, and they uniformly opposed that act because the numbers that they had in there for the number of days of this or that just bore no semblance to the reality of real jurisdictions.

So that was a Washington test tube baby that, frankly, never got into the real world.

>> Bill Whalen: Yeah, I think one problem here, as you mentioned, there was really no local input. It seems to be, Ben, that if you're going to do real election reform, it's got to be driven from the bottom up, not the top down.

But secondly, Ben, it didn't, the act didn't get into state elections, did it?

>> Benjamin Ginsberg: It didn't get into state elections because it really couldn't. So it also would have set up, I think, a bifurcated election system where states would have gone their own way on any number of provisions that were called for in their act.

In that act.

>> Bill Whalen: Okay.

>> Benjamin Ginsberg: Bill, you're gonna be surprised to know that that act is an example of Washington, DC not knowing everything.

>> Bill Whalen: I'm shocked, I'm shocked. And you say that sitting right now in Washington, DC, as you are. All right, Ben, I know you are.

So you never call a Marine a former Marine. Do we ever call a lawyer a former lawyer?

>> Benjamin Ginsberg: Probably not. Not this time of year anyway.

>> Bill Whalen: How about a recovering lawyer?

>> Benjamin Ginsberg: Yeah, I don't believe you ever recover from it, though.

>> Bill Whalen: All right, get out your law degree, Ben, and get out your little diploma.

And let's talk about some litigation here. Ben, my understanding is that Republicans right now have filed something like 120 lawsuits across 20 states in America preparing election challenges. We don't hear much about what the Democrats are up to, though.

>> Benjamin Ginsberg: Well, the Democrats have filed their own large number of cases, maybe not that large, but they've certainly not been shy about litigating.

And the Democrats are intervening, if they're not already parties, in virtually all the cases that the Republicans have filed. So I do believe that the Democrats are, in addition to actively litigating, preparing a ground operation to deal with legal issues that would arise on Election Day, because both parties do that every election.

>> Bill Whalen: And, Ben, when we're talking about lawsuits, can you explain a bit how the legal energy is challenged and hardest? The Republican National Committee, I assume, has lawyers. The Trump campaign has lawyers to state parties have lawyers to individual candidates lawyers. How do the lawyers sort out?

>> Benjamin Ginsberg: Well, there are really two buckets of lawyers, I would say.

There are the lawyers who are representing the national party committees. About ten years ago, Congress approved a legal proceedings fund in which individuals could give up to something like $120,000 a year. And so the political parties have, as is their want, raised a boatload of money that can be used on legal proceedings.

Nature abhors a vacuum. And so there is a lot of litigation coming out of both political parties. In addition, the very robust 501 charitable organization side of things has recognized that filing lawsuits is good for the causes they promote, as well as the fundraising that they have to do to promote those causes.

And so breathless litigation is really very much a feature of our elections now, in part because the money streams are so lucrative. And that's not entirely fair, because both political parties, as we become a more polarized country and control of states, can be in one party, there is much more legislation filed that the other party feels it needs to oppose.

And so the political polarization, one party control and legislatures also contributes to this man.

>> Bill Whalen: I'd like to get your thoughts on four legal challenges in three battleground streets. And let's begin with Michigan, where you were recently there. Republicans are suing to prevent state agencies from expanding access to voter registration, restricting the use of mobile voting sites such as vans, and imposing tighter verification rules for mail in ballots.

>> Benjamin Ginsberg: Yeah, I mean, that's what I mean about the political skirmishing over rules and regulations. Democrats control the process in Michigan. They put in a suite of changes that, in the name of enfranchising more voters, would make it easier to vote. The Republicans have indicated that they think that makes it easier to cheat.

In fact, it's all about mobilizing one party's voters over another. And so let the games begin.

>> Bill Whalen: Okay, Ben, let's now move to Nevada, where Trump allies are seeking to purge voter rolls of what they claim are ineligible voters and noncitizens.

>> Benjamin Ginsberg: So the noncitizen voting part and ineligible voter parts is something that states are required to sort of weed out.

>> Bill Whalen: Secretary of State's office.

>> Benjamin Ginsberg: Secretary of State's office in most places does that. And voter roll maintenance is a part of what happens. It is, I believe that those suits have not asked for preliminary injunctions before the election, which to me is an indication that they are kind of placeholders for the same sort of cases that Trump supporters filed after the 2020 election.

In other words, make the broad allegation that the election is invalid because of ineligible voters. You got to have evidence at some point. And so by slow walking. Not asking for preliminary relief before the election means you can do a little judge shopping and hope you're lucky and then have an ongoing case in the hopper for post election.

>> Bill Whalen: And how would an owned citizen actually manage to vote? Would it be as simple as just a ballot arrived at your address wrongly sent to you, or could you show up at a voting poll and try to bluff your way through? I don't understand how exactly you could pull it off.

>> Benjamin Ginsberg: For non-citizen voting, you mean?

>> Bill Whalen: Yeah.

>> Benjamin Ginsberg: Or, well, for non-citizen voting, I think it's very hard to pull off. I mean, you do have to say that you are an eligible voter, in other words, a citizen of the country to vote. Where I think that non-citizen voting, there are checks that states do with other databases to try and be sure.

And above all else, if a non-citizen goes in and tries to vote, that's deportable. So for the act of casting one ballot, which is really not gonna impact an election, you stand up to put yourself before authorities and risk deportation seems to be something that really is not gonna happen.

>> Bill Whalen: Yeah, I mean, I mentioned, because I worked in California state government for a period, and one frustration dealing with the non-citizen part of the population is you offer state services, prenatal care, for example, and you desperately want pregnant women to come in and get prenatal care services.

But because of their legal status, they are terrified of any kind of brush with government, so they wanna cover health care. So when I hear of non-citizens lining up to vote, I'm just kinda curious why that would happen. But that does raise a question. Ben, have any battleground states moved to voter ID laws in the past four years?

>> Benjamin Ginsberg: Yeah, I believe a couple have, I'm not sure which ones. It is an idea that's supported by over 80% of the country. It's a pretty sensible way to give people some comfort that only eligible voters are voting. And so it tends to be something that when Republicans take control, they will always put into place pretty quickly.

I think the evidence that's been presented in court that it has a desperate impact on racial minority groups, which is the Democrats main argument, really has not proven terribly effective when push comes to show.

>> Bill Whalen: It would seem a pretty straightforward argument in a society where you have to prove ID, to cash a check, to prove ID, show ID, to get on an airplane, to do most anything, to.

>> Benjamin Ginsberg: Take out a library book.

>> Bill Whalen: Yeah, get liquor at the grocery store. Even though you and I obviously are well over age 21, you have to show an ID.

>> Benjamin Ginsberg: Yeah, speak for yourself.

>> Bill Whalen: Thanks, Ben, okay, Ben, two cases in Pennsylvania. Now let's get through. First of all, Republicans are fighting to enforce strict mail and voting rules and limit voters ability to correct mistakes on their ballots.

I believe there's a legal case, September 13, Republicans scored a victory when the state's highest court ruled mail ballots with incorrect dates will not be counted.

>> Benjamin Ginsberg: Yeah, correct, it may be a pyrrhic victory, but the victory was that you do have to date a ballot. It is what the statute says.

There was a belief that that was a case that would have led to the reopening of the independent state legislature theory and by the Pennsylvania Supreme Court, which is five two, democratic deciding not to take that case. It stopped that issue from going before the US Supreme Court.

So while it is not clear whether Democrats or Republicans forget to date their absentee ballots more so, that case felt like a stalking horse case to open up the independent state legislature theory.

>> Bill Whalen: Okay, they don't have dangling chats in Pennsylvania, do they?

>> Benjamin Ginsberg: Not this year.

>> Bill Whalen: This year, we're gonna get to dangling chats in a minute.

The other lawsuit, Ben, the final one, we're gonna get into it once again in Pennsylvania. Six Republican Congressman filing a lawsuit claiming state violates federal election law by failing to verify the identities of service members who apply for overseas absentee ballots. The congressman want to verify identities of people applying for overseas ballots.

Pennsylvania ban ballots received before November 5 to be segregated, not counted until the senders identities have been verified.

>> Benjamin Ginsberg: Yeah, so interesting. You know, messing around with overseas military used to be one of those things that you don't do.

>> Bill Whalen: And one of the problems here, Ben, is this lawsuit comes about two weeks after Pennsylvania counties have started mailing.

Military started them out.

>> Benjamin Ginsberg: And so I think the case is unlikely to go anywhere just on what's called latches, which means you got to file this stuff in a timely fashion. But it may be, again, part of something that's set up as a challenge post election.

>> Bill Whalen: Okay, very good, so there you have it.

Any other legal challenges you'd like to bring up while we're going through the battleground states?

>> Benjamin Ginsberg: No, there's so many, I hate to choose among them. It's like choosing your favorite kid.

>> Bill Whalen: Okay, now, something I know we're gonna disagree on. This is the idea that times change and campaign issues also change.

I'm watching Donald Trump in the past couple weeks, Ben, and he seems very focused on immigration. He went to Colorado to talk about immigration. And he went to Coachella in the middle of nowhere in California to talk about immigration. To me, this is smart politics, even though Colorado and California not in play because every day when immigration is in the news cycle, that's a good day for Trump.

But my argument is that he's talking more about immigration and he's talking less about stop the steal. But you counter that. No, he's still talking about stop the steal.

>> Benjamin Ginsberg: He's still talking about stop the steal, I mean, when your rally speeches go for 90 minutes, you can hit a lot of topics.

And the stop the steal whispering is still very much a part of the process and very much a part of the campaign logic. So, I think that you're right in that immigration is a much more politically charged issue that he thinks probably rightly can get him more votes.

But the election integrity part of his argument is still there in every rally speech and certainly in all the activities of the Republican National Committee.

>> Bill Whalen: Right, but that said, Ben, we have not seen him go to Maricopa County and hold an election rally, if you will, an election integrity rally where he's with Kerry Lake, who's running in the Senate there, and they're waving the flag of stop this deal and so forth.

He hasn't gone to that point. Now, again, three weeks before the election, maybe he doesn't rally at some point, but it seems to me he's at the moment focused in other directions.

>> Benjamin Ginsberg: Yeah, it may be, and it's interesting, it may be part of a broader political strategy to just kinda keep them in safe spaces like big rallies and not to talk about that issue as much with Senate candidates who were significantly behind their democratic opponents.

>> Bill Whalen: Right, well, you can appreciate this, but as an attorney, because we're now in the closing arguments phase of essentially a very long trial for the American people, Donald Trump and Kamala Harris running for office. But I look at her side right now, Ben, and she seems to be a little off in terms of messaging right now, going after Trump on health care records, on his personal medical records, Barack Obama is complaining about black men not voting for her in sufficient numbers.

I don't hear her talking a lot about democracy dying in darkness.

>> Benjamin Ginsberg: Democracy is an issue that they're talking about. She may not be talking about it exclusively, but she's still talking about it. And certainly their messaging, at least their micro targeting messaging, is not forgetting the democracy issue.

But look, these are two. Two campaigns that are not moving forward with specific policy debates, right? They're putting out press releases that say, here's how I'm going to fix the economy. But then you read through it, and, you know, it's a lot of stuff that's getting thrown out that no Congress, even if one dominated by one party, would pass.

They're each in their own little bubbles and trying to appeal to, I guess, who their pollsters are telling them are the few persuadable voters out there.

>> Bill Whalen: Right. You know, I watch a lot of college football on Saturdays, Ben. And so I get unfortunately, a lot of presidential ads thrown in there.

And his ads against her, the main ads I see against her have been run by a Trump pack which goes after her on her policy as attorney general of allowing trans prisoners in California to have gender switching surgery. So he's going after a real kind of beet potato culture issue there.

Her ads against him, Ben, have been directed about billionaires and tax cuts and wealth. So, again, I'm not seeing him complaining about stolen elections and ads, but I'm also not seeing her showing footage of January 6.

>> Benjamin Ginsberg: Yeah, I think that is a fair point. But if you look at all the polling, it's pretty clear that the issues that voters are most animated about is the economy and how you're gonna fix it and immigration.

And so I think it is not unlikely that it really, elections, I think, strike most people, is a process issue as opposed to a pocketbook issue. And so it's not surprising to me in the final moments that they are talking about those issues.

>> Bill Whalen: So our listeners should know that Ben does a lot of work at Hoover on election integrity.

Ben is involved in projects beyond Hoover on election integrity. Ben writes about elections. But you recently were on 60 Minutes.

>> Benjamin Ginsberg: I was quite a momentous. I remember, what's the old joke?

>> Bill Whalen: You know, it's been a bad day when you lose your job, your wife divorces you, and you come home, and Mike Wallace is on the doorstep waiting for you.

>> Benjamin Ginsberg: I got to go to them. So that was good.

>> Bill Whalen: That was. So I mentioned 60 minutes because this was an episode they did on the same night they ran the Kamala Harris interview. And it's centered around Maricopa county and specifically what the fortunes of your friend Stephen Richer, who is the Maricopa county recorder, who just had one of the worst jobs in american politics, if not the worst in 2020.

His job to count the votes in Maricopa.

>> Benjamin Ginsberg: Yeah, I mean, Stephen ran the election. He did not. You know, he was not the guy in charge of the 2020 election, he was elected himself to that job in 2020.

>> Bill Whalen: And he's a Republican, he's also Republican.

>> Benjamin Ginsberg: He's a Republican, lost in the republican primary in 2024 because he did know how elections are run.

And Washington very forthright in trying to explain to people that, in fact, elections are accurate, including the 2022 gubernatorial race which carry Lake boss.

>> Bill Whalen: All right, so you talked about, on 60 Minutes, you talked about Maricopa in the election. Stephen said something rather interesting in the course of his interview that caught my attention, made me think about you, Ben.

He said, and I quote, I would say Maricopa County's 2020 election is the most scrutinized election in human history. And what immediately flashed to my brain, Ben, was that image of that guy in Palm Beach County. I think it was holding up a magnifying glass to a ballot to figure out, is this a dangling chad or not?

>> Benjamin Ginsberg: Well, Steven's young.

>> Bill Whalen: Yes. He was around in 2000, right?

>> Benjamin Ginsberg: Right. He was but a lad.

>> Bill Whalen: But you were around for the legal challenge. Let's actually back up for a second. Let's talk a little bit about what happened in Florida that year with Palm Beach county with the ballot, the chat, how that compares contrast to Maricopa's experience.

>> Benjamin Ginsberg: The experience in Florida in 2000 was over a 537 vote margin election. So that is legitimately close and one subject to a recount. So that you had Democrats and Republicans all looking at the same ballots and recognizing there was a lot of skirmishing over what the rules were, in other words, what the law called for and how you dealt with chads, right?

That's very different from the way Maricopa was.

>> Bill Whalen: I'm sorry to explain better. Chad is a puncture that you make.

>> Benjamin Ginsberg: So there was an old kind of ballot called punch guard ballots, in which the voter was instructed to punch these little perforated rectangles, really called chads, all the way through the ballot, because it was something of an antiquated system.

A voter could attempt to punch through a chad and not always get all the way through. Although state law was pretty clear, you had to knock the little piece of paper out from the ballot.

>> Bill Whalen: And that's what the guy, the magnifying glass was doing. He was looking at the ballot for intent.

Intent of penetration.

>> Benjamin Ginsberg: Well, there were these things. Yeah tend to penetrate is right. Such a thing as pregnant chads in that recount where you would see little perforations or slight extension of the squares. And so people were trying to divine the intent of the voters on that basis.

>> Bill Whalen: Right. But Florida ends up being decided by the Supreme Court.

>> Benjamin Ginsberg: It ends up being decided by the Supreme Court. The ballots themselves were the subjects afterwards of media recounts to see if it was done right. Virtually all of them upheld the very narrow George W Bush victory.

Maricopa county in 2020 was not nearly so close. 11,000 vote margin in Arizona. People really don't make up 11,000 votes in a recount. That's never happened. The rules of the game were not over individual ballot markings. It was over illegal votes being cast, which is pretty different. Remember also, and why I think Stephen Richards said it was the most scrutinized election in at least his modern memory was that there was the audit conducted by the Aristona state Senate, hiring a firm called the Cyber ninjas in which they took several months to look at every ballot and try and show that there was something wrong with the result.

And in fact, Joe Biden's margin only increased in their first while audit.

>> Bill Whalen: Okay, let's now talk, Ben, about how legal challenges will factor into the selection in this regard. First of all, what do you expect, Ben, in the way of legal challenges to state tallies, state certification?

>> Benjamin Ginsberg: I think much of this depends on the margins. There is conversations about local jurisdictions refusing to certify the results, and there are instances where that's happened. Arizona had a few, Georgia had a few. There are clear laws in every state that certification is a ministerial act. You got to do it if you're a government official.

It's not discretionary. And the courts, in fact, have never allowed non certification to take place. A couple of people in Arizona are facing criminal charges now. So I think it is unlikely that any certification challenges will work. Now, interestingly enough, if you refuse to certify a jurisdiction on the grounds that you think there's fraud, that affects every race on the ballot not just the presidential race.

>> Bill Whalen: Right.

>> Benjamin Ginsberg: So if this lack of certification comes in republican counties, in effect you're gonna have republican members of Congress, republican members of state legislature, your local officials also not certified. So I think that it is something that may take place by a few misguided souls, but is unlikely it'll work.

>> Bill Whalen: Yeah, you mentioned Mendocino function just on the math, the results but is there a statistically, like. Would you say this if it's like a 1% difference, a half a percent difference, a tenth of 1% difference, what number do you think would trigger the challenge?

>> Benjamin Ginsberg: Well, it's not the job of those officials who certified to make that call.

>> Bill Whalen: Right.

>> Benjamin Ginsberg: Their job is to take the results, be sure the math is right, and sign off on. Once they sign off on it, then that can trigger a recount or a contest or litigation where you can actually see what if there is any evidence to suggest the election was done wrong.

So I think the certification is maybe an attempt in a state local level to affect a state that's narrow. But what people who think they can get away with not certifying will consider the trigger for that, I don't know.

>> Bill Whalen: Which basket of lawyers, Ben, would fight the certification, would it be the state parties, would it be the candidates?

>> Benjamin Ginsberg: Could be any of them depends a little bit by state who might have grounds to do that. I think that, especially based on the conference we held with the battleground election officials, that every state whether it's a Republican or a Democratic secretary of state, will insist that the locality certify the results and begin the process where you can recount or challenge, contest an election.

>> Bill Whalen: Okay, Ben, second kind of challenge, what if one state, Wisconsin, Pennsylvania, Georgia, Arizona, Nevada, whatever battleground state wanna choose, what if they end up in a court pipeline? The likelihood you think one of them might end up in the same court pipeline that Florida did. And maybe you can explain exactly how Florida ended up at the Supreme Court and how that would play out in 2024, how a state would go down the same road.

>> Benjamin Ginsberg: Well, in 2000, it ended up Supreme Court over fights about whether deadlines in the state statute had to be observed or not.

>> Bill Whalen: But it was adjudicated first through the state Supreme Court, right?

>> Benjamin Ginsberg: Well, twice, yes.

>> Bill Whalen: Twice, yeah.

>> Benjamin Ginsberg: And the state supreme court decided to ignore a US Supreme Court ruling on its first not a good policy if you want the US Supreme Court on your side.

So it is likely to be over timetables, timelines, there are strict timelines about when states need to take the action for the electoral college. So December 11th is a date where a state has to have its certificate of ascertainment that indicates who meets on December 17th in each state capitol.

The electors to cast their ballots, and then those ballots have to be in Washington before January third and the start of Congress.

>> Bill Whalen: Okay, and thirdly, Ben, let's talk about legal possibilities. Come the time things shift to Washington and the electoral college meets, to actually Congress meets, actually certify the election.

One scenario that comes to mind here, it's Donald Trump, winning the election with a scant about electoral votes, barely enough to get over the top. Let's say 273 electoral votes, Ben, then four people decide that they don't wanna vote for Donald Trump. These are called faithless electors, Trump is now down to 269 in the electoral college, or even lower.

He doesn't get the 270, the faithless, let's say, switch over to Kamala Harris, she becomes president, how legally does this play out, Ben? First of all, could don't, what would Trump's legal challenges, what would his options be at that point?

>> Benjamin Ginsberg: Well, you will know on December 17th if there are any faithless electors.

>> Bill Whalen: Okay.

>> Benjamin Ginsberg: So that's two weeks before people get to Washington.

>> Bill Whalen: Right.

>> Benjamin Ginsberg: There are a number of states, I think about two thirds of the states have laws in place to stop faithless electors from being faithless. So it depends on which state this mystical faithless elector lives in.

It's also worth noting that the process for selecting the electors is up to the democratic and republican state parties, they put the names on the ballot.

>> Bill Whalen: Right.

>> Benjamin Ginsberg: So, they are usually pretty faithful people, I think, especially this time with the way the local state parties are operating.

I suppose you also have the possibility of members of Congress trying to attack the constitutional provenance of those fake electors. So that they might be excluded or their votes not allowed to be changed.

>> Bill Whalen: And this happened in 2004?

>> Benjamin Ginsberg: Yeah, at least the attempt.

>> Bill Whalen: Yes and what senator pushed this forward?

>> Benjamin Ginsberg: I believe that that was a California senator, if I'm not mistaken, named Barbara Boxer.

>> Bill Whalen: Be the lady who held the Senate job that Kamala Harris took over Cs Barbara Boxer. She led that but the idea was that Ohio's results were bogus, and so they wanted to challenge the outcome in Ohio.

>> Benjamin Ginsberg: Yes.

>> Bill Whalen: So it's been done and there were faithless electors in 2016 but, geez, I think the count gonna that Ben was like 306 Trump and 232 Hillary. So yeah, a few people could walk either way and it doesn't matter. But the idea of somebody walking, though when they could shift the outcome of the election, holy smokes.

>> Benjamin Ginsberg: Well, again, you'll know December 17th when they meet in the state capital, so that does leave time for litigation.

>> Bill Whalen: Yeah, I think if anybody tried that scenario, my goodness, I hate to think, what would happen to me. Remember Steve Bartman, the guy who caught the baseball at the Cubs game.

>> Bill Whalen: And because of the World Series.

>> Benjamin Ginsberg: Right.

>> Bill Whalen: This would be Batman to a whole different degree. So this is the first of the series we're doing on elections. State senators establish rules, Ben, we're gonna do three more episodes, and coming up next, you're gonna take over the moderating duties for me.

I'm just gonna lurk and listen to you weave your magic, you're gonna interview your colleague, Justin Grimmer.

>> Benjamin Ginsberg: I am, I hope I've learned at the foot of the master here for this bill.

>> Bill Whalen: Why is Justin the master?

>> Benjamin Ginsberg: Justin, well, no, you're the master of the podcast, Justin is doing extremely interesting work about elections and the impact of legislation on actual votes.

He also made a recent trip up to Coos Bay, Oregon, at the invitation of the county supervisors to engage what I found to be an incredibly lively and illuminating debate with one of Donald Trump's strongest advocates. On election denial. And so we'll be talking about some of the arguments that were raised in that setting and how valid they were.

>> Bill Whalen: I was gonna ask you what camp he went into, because Oregon, even though it tends to vote democratic overall, it's a tricky state politically. Ben, you can go to Beaverton or Portland and be in the greenest, crunchiest parts of America. You can also go to southern Oregon Bend, where people have been for decades now agitating to form a different state called Jefferson.

Cause they're sick of Oregon politics.

>> Benjamin Ginsberg: Well, this county is a pretty red county. Yeah, but not exclusively.

>> Bill Whalen: Okay, you're gonna talk about Stanford's Hoover's restoring confidence in American elections program, I suspect.

>> Benjamin Ginsberg: Yes, we will indeed. Justin and I are both part of the RAI and preserving American institutions, and we will talk about all the work that's being done there, including some papers we each authored and co authored for the Tannenbaum series about American elections and some of the myths that are perhaps malforming our elections today.

>> Bill Whalen: Okay and just for the record, Justin Grimmer is a Stanford political scientist and a Hoover fellow, so well versed in these topics. After that, Ben, it's gonna be you and I back on the microphone. And I'm looking forward to this just from a, just curiosity standpoint, because we're gonna do a podcast early on the morning of the 7 November.

I'm just curious what kind of physical shape you're gonna be in because you're probably going to pull an all nighter on the fifth.

>> Benjamin Ginsberg: Yeah, I'm young and strong, fortunately. And you're going to be a little tired yourself pretty early in the morning for you.

>> Bill Whalen: I have three things going on that morning.

You and I are gonna record that podcast, and then you and I, excuse me that I'm doing an episode of Hoover's Goodfellows after that, where we're gonna talk to Brett Stevens, the New York Times columnist, election results. And then, Ben, I think you and I are back on the microphone after that, doing a briefing for Hoover donors on the election.

>> Benjamin Ginsberg: So we are, we are. Well, we should have our, we should have our stick down pretty well. By the time the donors.

>> Bill Whalen: I will probably just stumble home and go to bed at that time. But you raised a point here. Come the morning on November 7, we may not have a winner.

>> Benjamin Ginsberg: No, I would. If the results are tight, they're as tight as the polls today are showing a, I'm not sure we will have a winner. It really took until the Saturday after the 2020 election. Maybe. Is your statistics indicated there'll be fewer mail ballots, so the processing will go quicker.

But there also are those changes, or lack of changes, in five of the seven battleground states that can slow it down.

>> Bill Whalen: And then we're going to do one last podcast in mid December, Bentley, about five weeks after the election. So surely the dust should have settled by then.

>> Benjamin Ginsberg: One can only hope.

>> Bill Whalen: One can only hope. So, I don't know. What do you think we'll be looking at by mid December? Do you think we're going to have a nice clean process and a nice clean segue into electoral votes and onto the 47th of the president, or is it going to be a little more chaotic?

>> Benjamin Ginsberg: Well, we're doing it right around the time the electoral college is actually meeting in all the states. So we'll know by then. I mean, again, if the race is really as close as the polls today indicate, it's likely to be a little yeasty then. Still in the middle of December, easy.

>> Bill Whalen: I like that.

>> Benjamin Ginsberg: Yeasty.

>> Bill Whalen: All right, so what does he got tell you about this election right now? I just, you know, we, we keep going through phases. We go through a phase where it looks like she's in a good spot. We go through a phase where it looks like he's in a good spot.

We seem, getting back to this phase, though, where they just kind of run about neck and neck. I'm doing a panel in a couple days with our colleagues, colleagues David Brady and Doug Rivers, who run a tracking poll. Ben, on the public's like a hundred thousand people who they're constantly keeping a track on.

They show a razor thin election, plain and simple. Now, they would argue that if you look inside it, that Trump maybe has the elect the advantage right now in battleground states, but no one's willing to make a wager at this point. And here we are three weeks out.

>> Benjamin Ginsberg: No, I don't think so. And look, I think that one of the things we'll learn about this election is whether Donald Trump has succeeded in changing the basis of the political party, right? We're reading an awful lot about how former blue collar Democrats are migrating to the republican party.

That means that all the historical models that pollsters use to help them weight samples and see how accurate the results are may not be valid for this election. So I think that it's particularly challenging to know what will actually happen on November 5 fascinates me in this regard.

>> Bill Whalen: Ben. I think Gallup showed the other day for the first time, and I think in like 20 years, more people now identify as Republicans than they do Democrats. So there's something to see change going on. You would think then that the republican candidate would pull away from the democratic candidate, but he does not.

On the other hand, the republican candidates about ten points underwater. The last I looked, his disapproval about ten points higher than his approval. You would think she could pull away under such circumstances, but she cannot.

>> Benjamin Ginsberg: Yeah, I think it's sort of an existential election for each party.

I mean, my republican friends are going there and going, geez, if we can't beat Kamala Harris, who can we beat? Look at her policies.

>> Bill Whalen: Yeah.

>> Benjamin Ginsberg: And my democratic friends are going, Donald Trump, man, if we can't beat Donald Trump, who can we beat? So somebody is wrong.

And the way that one of the parties is presenting itself to the american public is likely to be up for a little self examination.

>> Bill Whalen: And final note, Bennett, speaking of self examination, what do you think 2025 is going to bode for you in terms of election integrity?

Do you plan on convening some more sessions at Hoover? What, what do you have in mind?

>> Benjamin Ginsberg: Well, I think that got to wait and see what the results are because that's really going to drive that process. One thing that I think is true and what I hope to do at Hoover is take a really sort of big picture look at the system of american elections.

It is kind of creepy. And there are, it needs to be reimagined a bit. And we have over 10,000 jurisdictions. There are over 10,000 jurisdictions. You're going to have inconsistencies. You do not have a modern, the way of voting has not kept up with technological changes in the rest of the world.

And so there are some sort of root things about the election process that I think needs to be looked at and probably reimagined and rethought.

>> Bill Whalen: Yeah. I think it has simplest been two things. One, it has to be better built for speed, and secondly, just better designed for trust.

>> Benjamin Ginsberg: Yeah. And, you know, more precise. It's not be, it's not built for precision. There are too many people involved, too many jurisdictions, too many different kinds of voting equipment and ways that voter rolls are maintained. So one size doesn't fit all, but there are some improvements that would be good.

>> Bill Whalen: Well, Ben Gansburg, you are a saint for doing this podcast today. Hopefully I was not a sinner by asking pedestrian questions, and we think you're salvageable. Thank you. That's what I strive for in life. What did Michael Corleone say? Just when I thought I was out, they pulled me back in.

So here you go once again, my friend. Ben, great conversation. Thanks again for doing styled bulls. Look forward to the next show in a couple of weeks.

>> Benjamin Ginsberg: Bill thank you.

>> Bill Whalen: You've been listening to Saints, Sinners, and Salvageables, a Hoover Institution podcast exploring America's election system and the many challenges in the democratic process in this charge partisan environment.

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We'll be back soon with another installment of Saints, Sinners, and Salvageables. The next time, Ben doing the moderating. Until then, take care. Thanks for listening. And if you haven't already, don't forget to vote.