Now What Do We Do?

>> Bill Whalen: It's Wednesday, December 11th, 2024, and welcome back to Saint, 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.

You might recognize me from the Matters of Policy and Politics podcasts that I do. You can find that and other excellent Hoover podcasts at hoover.org/podcast, I definitely recommend you check it out. Joining me today, he is the godfather actually of Saints, Sinners, and Salvagables. This was his idea back in 2022, so if you don't like it, blame him.

But it's a great idea and it's a great podcast, I think, because he is a great guest, a great guy all around, a great fellow, dare I say, my colleague Ben Ginsberg. Ben is the Hoover Institution's Volker Distinguished Visiting Fellow and a nationally known political law advocate who was involved in several projects this past year involving election integrity in this election cycle.

He joins me today for this, the fourth and installment of Saints, Sinners, and Salvageables for 2024 at least. We're gonna talk about the end of the podcast, what the future holds for this and Ben's other endeavors and election integrity. Ben, welcome back to the podcast. Thanks, Bill. Great to be here as always.

So to recap, my friend, in the first episode it was you and me talking about the election from a 30,000 foot 11 level, what we thought might would happen. I need to go back and score about everything we got wrong, but I think actually we did pretty well on that podcast.

It was okay. It was okay, again, you can't get them all right. Second episode, you took the helm, you were the moderator. You did a really great job interviewing Justin Grimmer. For those who don't know Justin, he's a Hoover Senior Fellow and a Stanford University political scientist who studies election integrity.

And he did something very cool this year, he actually traveled to Southern Oregon. He got out of the Stanford bubble and went and watched how the locals handle voting and how the voting system is challenged. Third episode, it was me and Ben again. We recorded about 32 hours after the polls had closed in Alaska.

We talked about what worked and what didn't work in this election. I have to report it was a surprisingly upbeat podcast with two guys, I think, who were seriously sleep deprived at the time. And now here we are, Ben back again at it. For our fourth and final episode.

Let me read you something that Joe Biden said, Ben, two days after the Election. I want to get your thoughts on this. Here's the president, he's still the president, by the way. Quote, I hope we could lay to rest the question about the integrity of the American electoral system.

It is honest, it is fair, and it is transparent, and it can be trusted, win or lose. Pretty noble words from the president, I think, but also the kind of words you say when election is decisive, no?

>> Benjamin Ginsberg: Yes, you certainly do, and this was a decisive election, right?

All seven battleground states moved in the same direction for Donald Trump by sufficient margins that there weren't recounts in any of them. And, Bill, it's amazing what that did for public confidence in the elections where there was a great deal of doubt about it. With surprisingly low confidence rates by the American people after the election results, it has been historically high.

There are polls out from Pew, Yankelovich Morning Consult, an academic survey of performance of American elections. And all of them show that people believe the elections were run well and the results were accurate. A tremendous transformation.

>> Bill Whalen: Let me phrase it to you this way, Ben. You spend a lot of time talking to election officials around the country.

You've done some great conferences at Hoover, bringing these guys out to talk about what they go through. As you've talked about them since the election, Ben, do they feel like they're good or do they feel like they're lucky?

>> Benjamin Ginsberg: Lucky, I mean, let's be honest about this. The doubts about the election and the system were carried in over 100 lawsuits that have been filed largely by Republican entities.

But there were also a slew of democratic entities challenging some parts of the election procedure. The results were so decisive that none of those suits had been carried on. And there was no sort of upset over the election results, which is why confidence went up. But nobody thinks that this is not what we'd call a cicada problem.

It's going to go back underground and then reemerge at some point in the future. And so those doubts probably need to be addressed in the next few years.

>> Bill Whalen: I wish you had said cicada, Ben. I used to live in Washington as you do, and I used to have a convertible when I lived in Washington.

And I put the top down during cicada season and literally the things would fly into your car and give you a heart attack every time they'd fly in the car, so.

>> Benjamin Ginsberg: They would, well, we dressed up kids as cicadas when they were at a very tender young age, took lots of pictures.

They loved it. They've really become family icons.

>> Bill Whalen: Yeah, I wanna turn your attention, Ben, to a state you're more than familiar with, Pennsylvania. And something that happened as the vote count was going on. Pennsylvania, I think we could agree this would constitute what is genuine skullduggery. If you look at the numbers right now, Trump won Pennsylvania, Ben, by I think, about 120,000 votes or so, about a 1.7% difference.

So decisive. But as the votes were being counted, the election was still kind of being settled, you had a controversy in Pennsylvania, and here's what happened. The Pennsylvania Supreme Court had ruled before the election that mail ballots lacking formally required signatures or dates should not be included in official results.

So what happens? Lo and behold, a Democratic senator is trailing in his election. And Democratic officials in Philadelphia and Bucks County and Center County in Montgomery County, these are the suburbs of Philly, they ignore the court order. So, Ben, what happens when election officials go rogue?

>> Benjamin Ginsberg: Well, what happened in this instance is what should happen.

The same thing that happened, for example, when election officials decided not to certify election results after 2022. The courts put them back in line. So if election officials go rogue, which is certainly what happened in this case.

>> Bill Whalen: Yeah.

>> Benjamin Ginsberg: It took the courts to say, can't do that.

And so the ballots that the Pennsylvania Supreme Court said were not properly verified were not counted. And, Bill, you know, between what happened in Pennsylvania and what happened with certifications in 2022, but all elections were certified in 2024, the lawsuits that were brought before the election, with a lot of banging of the drum and are not continued.

It tells you that a lot of the rhetoric around elections, which has caused the decline in trust for elections, is really more about political tactics than deep seated concerns and beliefs about the system.

>> Bill Whalen: If you're on a campaign, Ben, and let's put yourself in the situation. So Senator Casey, who was involved here in Pennsylvania, his campaign.

If you're working on the Casey campaign, working on any campaign that's looking this scenario, how do you legally prepare for a situation like this? Are you, are you game planning this work, aiming this ahead of the election, or do you just kind of turn on the fly as the votes are being counted and realize that we need legal avenues here?

>> Benjamin Ginsberg: Even before Bush versus Gore, when I was a young puppy of a lawyer, we always prepared for recounts. And what that entailed and still entails, is being sure that you have the law set, that you have personnel. In all the polling places to be able to verify what's happening on election night.

And yes, you do game plan out what you may do in a number of circumstances. The game planning is more a good mental exercise because you never, ever get it right.

>> Bill Whalen: Yeah.

>> Benjamin Ginsberg: Which you're gonna be arguing. And recounts are situations where the position you take depends on whether you're winning or losing.

If you're winning, you want to stop additional votes from coming in because you like the fact that you're winning. And if you're losing, the name of the game is to loosen requirements so that more votes come in so you stand a better chance of gaining a lead.

>> Bill Whalen: Yeah, now, I know there was a movie done on the Bush who played you in the movie, by the way?

>> Benjamin Ginsberg: I think it was George Clooney, wasn't it?

>> Benjamin Ginsberg: Yeah, it might have been a short, bald, bearded guy instead of Alabama. Wonderful character, man.

>> Bill Whalen: Yeah, Brad Pitt was busy, right?

>> Benjamin Ginsberg: Yeah, that's right.

>> Bill Whalen: Yeah, but no, I mean, people.

>> Benjamin Ginsberg: DeVito was too blissful.

>> Bill Whalen: People could go back and watch that movie and see how things went down in that.

But you actually were there. So actually tell us how this worked out as an attorney in terms of that election night. And you see this incredibly, ridiculously close vote in Florida and just how the legal staff was kind of gearing up just really on the fly there.

>> Benjamin Ginsberg: And of course, what happened in Florida 2000 was really the mother of all recounts.

That there would be a 537 vote margin in one state deciding a presidency is something that was probably not on many bingo cards going into that election. So as votes keep coming in and margins keep narrowing, you keep watching more and more for what could happen. And then at some point, you make the decision, which is really the gut punch in the stomach decision that you need to prepare for a recount.

>> Bill Whalen: Right.

>> Benjamin Ginsberg: So you send people into the state in all the relevant jurisdictions, you start pulling the law. You think very strongly how you have to staff it up. So the first decision the Bush campaign made, for example, was that James A Baker III would run the effort.

The ultimate combination of scholar, lawyer, savvy political operative.

>> Bill Whalen: Right.

>> Benjamin Ginsberg: Was the perfect person to do that. And then you start building out an organization to handle the litigation that's going to come. The political operation of counting the ballots, the communications that you have to have to be able to explain what's going on to people.

You need a ton of logistical folks to make everything happen. You need fundraising because recounts are unanticipated expenses when theoretically campaigns have spent all their money. So you do the organizational chart for how you're gonna carry that out. But the real work, of course, is being sure that you have people to look over the ballots and to be present whenever ballots are counted.

>> Bill Whalen: And how do you work in terms of precedent, Ben, if you maybe I watch too many legal shows on tv, but there's always a lawyer who's going back into this room full of a million legal books, and he or she is always going back to precedent. So as an election attorney, how do you fall back a precedent, especially in a situation like Florida, which Renegart is unprecedented?

>> Benjamin Ginsberg: Well, recounts are always.

>> Bill Whalen: Well, recounts are triggered by, well, recounts are automatically triggered in most states by like 1% difference.

>> Benjamin Ginsberg: Certainly in some states. But all the precedents that take place in a state are covered in state law. There is, there might be an equal protection count in a recount case where not all similarly counted ballots are treated the same.

But by and large, the precedents that you look for first are what's happened in previous recounts in states. Often they are not statewide recounts, they're more localized, state legislative, maybe a statewide governor's race. And so you need to take the precedence and like you do for any legal case, apply it to the facts on the ground.

The facts are generally, developed by the lawyers talking to people who have been in the polling places on election day or are viewing the ballots as they're counted.

>> Bill Whalen: Ben, do you pay much attention to what goes on in California in terms of the election and vote counting?

>> Benjamin Ginsberg: I do, in the same sense that I watch NASCAR races for the Rex.

>> Bill Whalen: Okay, good analogy. Here's what I'd like to talk to you about, California has a mess on its hands. We can agree. One election official calls the California vote counting process a pig and a python.

In other words, we have so many votes to count, we've created a system that makes it difficult to count, that it's hard to digest it. And this is not a partisan observation. It's just a problem with common sense. And this year, Ben, state lawmakers came back to Sacramento.

New session began on December 2. Not the formal new legislature, but they came in a special second session, December 2, the governor's request. You were still counting votes in California on December 2nd. So this is confusion and this is bad. How did California get into this mess, Ben?

And how does California get out of this mess?

>> Benjamin Ginsberg: Well, the way you get out of the mess is to pass more sensible laws.

>> Bill Whalen: Okay.

>> Benjamin Ginsberg: Look.

>> Bill Whalen: We'll get to that in a minute, but let's explain how California in terms and explain to the audience just in terms of California's getting ballots and how they count the ballots.

>> Benjamin Ginsberg: Well, they count the ballots late. California has moved to becoming an all mail state. So mail in ballots. That means that people often drop off mail ballots on election day. And then California's law says that any ballot postmarked on election day can be received up to seven days afterwards.

And then there are additional time periods for ballot curing. And in other words, if a signature doesn't match or a date is missing on an envelope, the voter can be called to correct that. Mail ballots generally require a lot more verification than if somebody walks into the polls and casts a ballot.

And so it is a combination of wanting to allow ballots to come in after a week, after election day, and to have maximum cure times. I guess the essential point is it's a balance right there is wanting to count as many votes as is physically possible. But that does come at a cost for huge delays.

And what we saw in 2020 is that delays between the polls closing and getting results is the petri dish for election conspiracy viruses to spread. Just imagine if California was the outcome determinative presidential state and it was taken three weeks to figure out who won.

>> Bill Whalen: Right, and the problem in California, Ben, is it takes a long time.

California was the last state to settle a House election. I believe it's about a week ago at this time it was settled. And the problem in California, at least, and again, I'm not being partisan here, is that these counts go on and they go on and they go on and they invariably benefit the Democratic candidate.

Again, it's a state that's 2 to 1 democratic, so common sense would dictate if you have a lot of votes to count, there'd probably be more Democrats and Republicans voting.

>> Benjamin Ginsberg: It's kind of a condescending attitude. By Democrats to provide all these opportunities. It sort of says there's something with our voters that they can't meet a deadline.

>> Bill Whalen: I want to get to that in a second. You're absolutely right. It is kind of like you're treating them like children. But the problem is you hit it on the head here when you see a vote count that gets carried out for an extra month and the numbers are just moving in one direction, one party's direction.

If you're Republican, granted, this is California, Ben, and Republicans really are kind of the downcast, trodden minority out here. You just feel like the fix is in.

>> Benjamin Ginsberg: Yeah, it is. That delay is really harmful to public confidence in the election process as a whole. And that's a real downside.

I mean, the way you get out of it is to change the laws that allow for those long delays to take place. You can open up if you want to. If you're worried about depriving people of opportunities, you can extend the voting period before the election to provide the same number of dates.

But a deadline is a deadline, and many states do call for absentee ballots to be in on election day.

>> Bill Whalen: Well, but here again, Ben, we're treating voters like children because California mails a ballot to me a month before the election. Do I need the ballot two months before the election?

Now, we're getting to a separate problem. Let's say I get my ballot in the mail two months beforehand, and I decide to vote that way. What if something incredibly awful comes out about the guy I vote for? It turns out that he was a mastermind behind the guy who got shot in New York City or something like that. I can't take back my vote, can I?

>> Benjamin Ginsberg: No, you can't. Although some states do have provisions where you can go in and have your ballot pulled out.

>> Bill Whalen: Yeah, but I just think.

>> Benjamin Ginsberg: Not in California.

>> Bill Whalen: Yeah, look, you're giving voters 30 days to make up their minds about something.

>> Benjamin Ginsberg: You can do that, folks.

>> Bill Whalen: Yeah. You know, I spent some time on the national association of Secretary of State's website, Ben, and looked into what various other states do. And first of all, you see the problem that California has. California has about 22 million voters, usually in a presidential election, because we're just a huge state.

About 90% of those votes, Ben, are by mail. This is the pig and the python. You can't digest that many votes if you look at each one and try to make sure the signatures match. I looked up numbers for New York state in 2020. In 2020, Ben, California actually had 15.4 million mail ball in that same cycle, Ben, New York had 1.7 million absentee mail ballots as well.

So, you know, this is the California problem. Just how dynamic it is. But then I looked at Florida, Ben, and Florida does something that I think California and other states have to consider. The deadline for returning a mail ballot in Florida, Ben, is when?

>> Benjamin Ginsberg: I believe it's election day.

>> Bill Whalen: Correct. You know, your elections, it's election day in Florida. We don't give like in California an extra week to send it in. You know, it shows up seven days later in California you still voted. You got to turn it in an election day. So this gets back to the Ginsburg theory.

Treat voters like adults.

>> Benjamin Ginsberg: Yep, and I believe that there are only 12 states that allow ballots to come in after election day. But it was also Pennsylvania was very slow in counting its ballots this year is that Pennsylvania's senate recount highlighted. But generally, the count is slow in Pennsylvania in part because the Pennsylvania legislature doesn't allow for the preprocessing of absentee ballots.

So the count becomes very late. Arizona was very slow because it allows voters to bring in absentee ballots on election day, and that always creates a huge backup.

>> Bill Whalen: Ben, how would California put, choose your favorite saying here, the horseback in the bar and the genie in the bottle, if you will.

How does California kind of undo what it's done? Because as you mentioned back during COVID California, like other states, decided to go to mail in ballots. There's a genuine health concern then, but California has since made that the permanent law. So every election, every registered voter in California gets a ballot.

They're not going to undo that.

>> Benjamin Ginsberg: No. You're not going to unpeel mail ballot. People like it. People take advantage of it. But you can have the deadline for receipt of the ballot on election day. That's a matter of changing a law. The notice and cure provisions in California extend that even further.

There are certainly states that have notice and cure provisions, which means if your signature doesn't match or there's a date that's missing, election officials will call you up and tell you to come in and change your ballot. You can reduce the time period for that. All in all, there are a number of practical changes that can be made to speed up the process.

 

>> Bill Whalen: No, I have some friends, Ben, who will tell you that money will solve all the problems, that if you simply spend more money hiring more county election officials, that they can count faster that if you spend more money on outreach, people will vote earlier. Have you seen any studies or any empirical evidence which would suggest that a public service announcement will encourage people to turn on the ballots a week before the election?

>> Benjamin Ginsberg: Well, I think a public service announcement right before an election might be able to convince people to do that. The notion of hiring more people is not the issue, however.

>> Bill Whalen: Ben, I don't know if you saw if there's a piece of the Atlantic that ran the other day.

It's called the $100 million election flop. And what it focused on was a effort by election reformers to go to a handful states across America. I find this really fascinating thing to read. They wanted to change how elections are done in Colorado and Oregon. These are two pretty blue operations here, Nevada and Arizona, which were two of the seven swing states in this election, plus Montana, Idaho and South Dakota, which are pretty decidedly Republican in national elections.

And what they wanted to do, Ben, was they wanted to bring in the Alaska approach to voting, which is the so called final four voting. For our listeners and viewers who are not familiar with this, Alaska has a rather unique voting system. They hold an open primary, meaning everybody from every persuasion is on the same ballot.

And the top four finishers then advance toward November, not two, but four. Then voters decide the winner by ranked choice voting. And what was interesting to hear, Ben, was they tried this in blue states, they tried this in red states and states somewhere in between, and the idea bombed.

>> Benjamin Ginsberg: Yeah, it certainly did. It did succeed here in the People's Republic of the District of Columbia.

>> Bill Whalen: Gosh.

>> Benjamin Ginsberg: Which the Atlantic article did not report. And Alaska held on just by a whisker.

>> Bill Whalen: Exhibit.

>> Benjamin Ginsberg: That system. Nevada was in a position where it passed two years ago but had to pass a second time and that failed.

What's interesting about this is that ranked choice voting is a project that is being very much pushed by a group of elitists. And I think you can explain the sort of bipartisan rejection of this as an effort by the elites to change the laws under which they're not capable of winning elections.

Instead of going out and doing the hard grassroots work of getting people to vote for your candidate, they're proposing rules change to make it easier for their folks. So not surprising that it gets rejected.

>> Bill Whalen: It sounds like you're not a fan of the system.

>> Benjamin Ginsberg: I'm not a fan of the system.

I think ranked choice voting is far too complicated. It is capable of being gamed by wily political operatives. I think that it is sort of a short-term solution at best, and I think it is sufficiently. Complicated that it favors the elites. I mean, the Cambridge, Massachusetts City Council has had ranked choice voting about as long as any jurisdiction.

And more and more, it is sort of well-educated folks who understand how to maneuver ranked choice voting to vote for all the candidates who end up being the most successful in electoral government. I think the top two system or top four system is, in a sense, more interesting.

But on all the sort of reforms that also include things like proportional representation and a number of other cures to the system that are favored in certain academic institutions. I mean, all of them really attempts to change the rules in a partisan fashion, in a manner that really is a substitute for proponents of those reforms not being able to win elections, not having their ideas universally embraced.

>> Bill Whalen: To clarify, when you say top two system, you're referring to, say, California, which is primary. And the primary is, everybody goes on the same ballot and the top two finishers, regardless of party affiliation, advance toward November.

>> Benjamin Ginsberg: Yes, the theory is that this produces more moderate victors and forces people to the center to be able to get the majority of voters as opposed to people on the polls.

>> Bill Whalen: Right.

>> Benjamin Ginsberg: I don't know, how's that going in California, Bill?

>> Bill Whalen: Well, let's don't let California hijack this, cuz there are things I wanna talk about. But let's spend a moment on it because it's created some very funny dynamics in this state. Let me take you back to 2018, for example, when Gavin Newsom open seat, Jerry Brown stepping down as governor.

And so Democrats, Republicans are lining up to run. So Gavin Newsom, at the time lieutenant governor, he goes on to win the election. He lives in fear of having to face Antonio Villaraigosa, the former mayor of Los Angeles in the general election. Why does he fear Villaraigosa? Raigosa has high name recognition in Southern California, Latino.

He's a player in California. And Newsome doesn't wanna face this guy. So what does Gavin Newsom do, Ben? He spends a ton of money advertising against whom? Running negative ads against whom? Not Antonio Villaraigosa, but the most prominent Republican in the race. Why? Because his people come to the conclusion that the more money we spend dumping on the Republican, it's gonna raise his numbers among Republicans and he is gonna therefore finish second and I'll finish first.

If I can finish ahead of Villaraigosa and that weak Republican can finish second place overall, I then am gonna become the governor. Why? Because in California, as I mentioned, it's about a two to one democratic state in. So this is one example where the top two primaries maybe not worked out that well.

And you're gonna see this again in 2026, depending on what Kamala Harris does, if she runs for governor out or not. It's very interesting, Ben. You get a lot of aspirational people lining up for an election. And here in California right now, the governor's race, for example, there are at least six people looking at running right now, maybe more.

I've gotten, since the election, phone calls from three different people, all ask me what I think about their running or not. It's just, when there's no good seat out here because California governors tend to get reelected, everybody wants to run. But that's the problem, though. It's encouraged Newsom and other Democrats to really just try to raise the profile of the person they think is the weakest opponent come November.

>> Benjamin Ginsberg: Yeah, like I said, it's- It's not perfect. It's a performer's cure that's gonna be game pretty quickly by the political operatives.

>> Bill Whalen: Yeah, but this takes in a larger conversation for another day about the merits of that, the merits of term limits and so forth. But let me ask a question, my friend. What is your favorite political movie? Let me qualify that. What is your favorite movie that doesn't have you in it?

>> Benjamin Ginsberg: I've always been partial to that classic The Candidate, the Robert-.

>> Bill Whalen: That's what I was gonna say. Thank you for reading my mind. It's not a setup, folks. I was gonna say The Candidate. What is the last line of The Candidate?

>> Benjamin Ginsberg: Ooh, I'm gonna leave that one for you.

>> Bill Whalen: Well, let me see if I can jog your memory. So the last line of The Candidate, let's spoil it for everybody. But you know what, the movie's been out for over 50 years.

This is part of the beauty and the charm of the movie. It was filmed in 1972, released in 1972. A very young Robert Redford who didn't play Ben Ginsberg later, but could have.

>> Benjamin Ginsberg: Pretty.

>> Bill Whalen: Yeah, the parallels are eerie. Redford plays a very young aspirational Democrat named, I think Bill McKay is his name.

This is how old the movie is. He's running an uphill campaign as a Democrat in California. He run against a very well-established Republican senator. And it's a very kinda cynical look at how politics are waged. He comes in as a young idealist, and he quickly realizes that in order to get elected, I gotta ditch the idealism and just do what it takes to win.

And so it's him just doing all kinds of various campaign stunts. But it's arguably the best ending of any political movie. Why? Because it ends on election night when he, spoiler alert, has probably won. And you can appreciate this having been on campaigns. They show what's going on in his hotel suite.

Everybody's running around, his wife's talking about where they're gonna get a place in Georgetown and so forth. And what Redford, the candidate, does is he gets his guru, his Svengali, his campaign manager, pulls him aside, and they go to a quiet space, they sit down, and Redford looks up at him.

These are the final words of the movie. He goes, now what do we do?

>> Bill Whalen: It is correct. And it's brilliant because it points out that this is, sadly, how a lot of elections are played in America right now. It's not what you're gonna do, it's just about winning.

So now what do we do? That is a very long-winded way, Ben, of me getting to this question, now, what do we do with election integrity, election reform in America? Now, there are scholars who are busy at this, in addition to you. For example, this group called Scholars for Electoral Reform, who have actually written to Congress. And here's what they want, and I quote, electoral system changes such as proportional representation, expanding the size of the US house, instant runoff voting, fusion voting, open primaries, and independent redistricting commissions.

>> Benjamin Ginsberg: Yeah, good luck with that.

>> Bill Whalen: Yeah.

>> Benjamin Ginsberg: Look, that's what I mean about elites who can't win elections wanna change the rules to favor themselves.

There are some of those reforms that are probably pretty good. But if you're going to change the rules of the game, it has to be bipartisan. And there is nothing, I think, bipartisan about that group. So I think that the rules changes that are being talked about will not take place with a Republican Congress and a Republican President and Mitch McConnell chairing the Senate Rules Committee.

>> Bill Whalen: I thought about McConnell, but that was my next question. You want bipartisanship, but look, it's Republicans' games, Republicans' rules. Granted, it's, what is the Congress right now? It's what, 220 to 215 in the house. But actually it's soon going to be 217 to 215 when the members don't come back.

So good luck muscling stuff through. But you look at that Congress, Ben, what do you think they're gonna do in the way of election reform? Or does this tie back to what we talked about in the beginning, that everybody's kinda calm right now?

>> Benjamin Ginsberg: Well, I think there may be a Republican version of election reform.

Remember when the Democrats controlled all three branches, they did the poorly-named For the people Act.

>> Bill Whalen: Mm-hm.

>> Benjamin Ginsberg: That was kind of a wish list of Democratic ideas. That crashed because it had too many ideas in it, frankly. So that while it gained more supporters, that also gained more opponents, and ultimately cratered.

>> Bill Whalen: I think also history show that that was Kind of the beginning of the end of Kamala Harris and that was kind of her first task as the vice president, to shepherd that through Congress, and it just-

>> Benjamin Ginsberg: Yeah.

>> Bill Whalen: Yeah, belly flopped.

>> Benjamin Ginsberg: Didn't go anywhere. I think Republicans might try a election administration type bill.

With things like voter ID, mandates to clean up the rolls, amendments to the NVRA, the National Voter Registration Act, which is pretty old and does need some help. There might be some cyber safeguards in some legislation. I mean, I do think that while the complaints about the conduct of the 24 election went underground, that the issue is still alive. 

But of course, the problem with any election bill in a new administration is that Donald Trump has a very robust policy agenda that with those margins is not going to be easy to get through. And so while I think there may be a bill drawn up by the House Administration Committee Republicans on election reform, it's not going to be a high priority and unlikely to go anywhere.

Of course, what happens in the states can be an entirely different matter. Although the political makeup of, I think only the Michigan legislature changed in all the legislative races. I do think that there is an opportunity, not in the legislative arena, but rather in sort of the policy area for Trump folks to explain the evidence that they have that elections are not reliable.

And to sit down and see if there aren't a series of things that can't be examined for the flaws that are perceived in the system. With either corrections for that or recognition that the system works pretty well no matter who wins.

>> Bill Whalen: What about governors Ben? Is it too kumbaya for me to think that maybe Josh Shapiro in Pennsylvania could hook up with Ron DeSantis in Florida and just a handful of red, blue and battleground governors could get together and talk about common sense reform?

Or is this just not America in 2024?

>> Benjamin Ginsberg: Well, I think they can talk about it as leaders of a nationwide commission to offer ideas. The election laws and the system in Pennsylvania and Florida are pretty different. For example, Pennsylvania has a bottom up system where each of the 67 counties has a huge amount of independent authority.

Florida is a much more uniform state. They only have one type of machine. And while the counties in Florida do have a pretty large degree of independence, it's not as much as in Pennsylvania.

>> Bill Whalen: Right, well put. Okay, getting back to Congress, let's say Congress moved forward on voter ID, Ben.

I could see one or two ways to advance this argument. One is the common sense argument that Ben Ginsberg goes to buy a bottle of booze in the grocery store, they're going to ask for his id, even though clearly you and I are a few years past age.

>> Benjamin Ginsberg: Or a library book, Bill, that's library book.

>> Bill Whalen: Or a library book, okay. We'll put you on a higher plane. Booze for me, library book for you. Ben Ginsberg wants to rent a car, he needs to show an ID. Ben Ginsberg gets on an airplane, he's gonna show ID.

You need to show identification to do most anything in society, but not to vote. So that's the common sense argument, Ben. But is there a fraud argument? In other words, could you, if you're presenting this case to Congress, could you point to fraud?

>> Benjamin Ginsberg: Well, I can't point to instances of fraud.

What I can do is point to the public opinion polls that show that over 80% of the people favor voter ID because it gives them confidence that there aren't ineligible voters voting. So I think that the factor that it raises, confidence in the institution of elections is really the strongest argument for voter ID.

>> Bill Whalen: Okay, all right, Ben, let's put you back out there. In the 50 states, one election ends, another one begins. There are people, as I mentioned in California running for governor in 2026, this just never stops. Let's start looking at the system moving ahead. I mentioned Bill McKay, Democratic icon.

Let's talk about another Democratic icon, Teddy Kennedy. What did he say at the 1980 convention in his swan song? The work goes on, the cause endures, the hope still lives, the dream shall never die. I cannot do a Kennedy imitation, maybe you can. But let's talk about the dream shall never die, Ben.

What work remains to be done on election integrity?

>> Benjamin Ginsberg: It's building back public confidence in election results. Again, this may be a magic time where both parties seem to agree that this election was done well. But I think we have to be honest that the system itself is not perfect, it is not built for precision.

We have over 10,000 different jurisdictions. That means the counting and casting of ballots is going to vary as much as human nature does. There's not 10,000 of anything that will be secure. There's a perpetual problem with enough research and development in the voting technology area simply because it's a product that's used a couple of times every other year and largely not much.

There's a workforce problem. The system is really fueled by people even older than me who volunteer for elections. That problem has been exacerbated by threats to election officials so that fewer people are volunteering. That's gotta be corrected. There are a number of standards of reliability and laws that can be put in again to raise confidence that the system is working properly.

So I think that you can do a number of reforms like that, including a better voter roll maintenance system. We're a very mobile society, so people move from jurisdiction to jurisdiction. There is a program that only about 30 states, maybe less than that now, are a part of, where they cross check their voter registration rules to stop dual voting.

I think more robust participation in that would certainly help. The slow count that we were talking about before.

>> Bill Whalen: Right.

>> Benjamin Ginsberg: In California and some other states could be corrected. So there are some improvements that could be made to the election system. And the complaints that has come from Republican officials in the form of their lawsuits should be litigated.

If there's evidence of real problems in the system, we ought to get that evidence out on the table and address how to fix it to increase confidence in the institution of American elections.

>> Bill Whalen: Right now. Voter ID law, Ben, that would be federal and that would apply to 50 states.

But are we talking about 50 state solutions as well in terms of election integrity, or are we back to square one and hoping that the 50 states individually do the right thing?

>> Benjamin Ginsberg: You're back to it being a system where the state States really control.

>> Bill Whalen: Right.

>> Benjamin Ginsberg: You could have federal ID for federal elections, but you could also see a state saying, well, you don't have to have photo ID for our state elections because we think it cuts back on the vote.

So the elections area is one where you do need bipartisan buy in to common sense reforms to improve the system uniformly.

>> Bill Whalen: Yeah, I think where I'd see frustration would be you look at a state like California, New York, Illinois. The really big states have big voting populations, especially California and Ben, where everybody gets a ballot in the mail.

California needs to be constantly purging its system and going through and changing it. I don't know how long we lived in your house, Ben, but I imagine when you moved in, there was a period for several years where you're still getting mail from the person who lived there before you.

And eventually it goes away. But you wonder in a state like California, just how long into the future are you gonna be seeing people in one house getting multiple ballots? I'm not playing dark conspiracy card or anything like that, but just common sense dictates that you just need to be scrubbing that thing constantly because why?

You're right, people come and go from addresses.

>> Benjamin Ginsberg: Yeah, on mail ballots, which you're right, is like the preeminent example of something that just feels wrong to people. Those ballots don't get counted because there are checks when the ballots are received to make sure it's a valid voter.

But you're right, getting this ballot that could be voted is something that decreases confidence in the system, and that's why it's worth changing, even if those votes are ultimately screened before they're counted.

>> Bill Whalen: But it jams the system, Benny. But say, okay, the good news, the vote doesn't get counted, but that means that poor Ben Ginsburg or Bill Whalen has still had to waste ten minutes of their life scrubbing the darn thing.

>> Benjamin Ginsberg: You are correct.

>> Bill Whalen: Okay. All right, let's talk now about what you're doing at Hoover. What comes next for you?

>> Benjamin Ginsberg: I want to take a look at this way that we can air all the concerns about the accuracy of the system and be able to bring people from across the political spectrum together to take a look at what evidence may exist that there are real problems.

Part and parcel of that is the common sense solutions we were just talking about and trying to get some bipartisan buy in for that, maybe draft model legislation for the states. And I think on a longer term, we need to spend some time reimagining our election system to make it more accurate, more reliable to give people a greater sense of confidence in it.

>> Bill Whalen: All right, are you looking at other states, Ben, or are you looking at other countries?

>> Benjamin Ginsberg: Well, I think you gotta start this at home and look at other states. I think it is helpful to have some comparativists tell, tell you what's going on in other states.

>> Bill Whalen: Right.

>> Benjamin Ginsberg: We have such a long, rich history of the way we vote that I think it can. Looking at other countries can be informative for solutions. But American exceptionalism is gonna prevail here and its ideas that will come as opposed to usually do it the way they do it in X country.

>> Bill Whalen: Exactly. Is there any one state you turn to? I think on the last podcast I talked up Florida, cuz Florida just impresses me with just how fast they move. And it's a big state, it's a complicated state given time zone changes and weather, you name it. Florida trouble always seems to find Florida, but Florida does their elections really cleanly and quickly really well.

>> Benjamin Ginsberg: I would give a lot of kudos to Georgia this time around. It did a really good job. I think the, you know, North Carolina suffered from the hurricanes right before the election. And actually, although they have one painfully tight state supreme court race, the system itself for counting ballots really held up well.

Including in that tight race where all the counts seem to have been accurate. Michigan passed some new laws for this year that seems to have sped up their accounting considerably and they all deserve a lot of credit for that.

>> Bill Whalen: Okay, and then what about Donald Trump and his followers?

On election night when the election was not settled, Donald Trump was out there saying that the fix was in in Philadelphia and phony votes were being counted. I think he said the same about Detroit as well. Then suddenly the election went his way and he got very quiet.

 

But I think there's still that strain out there that elections are still rigged and it's us versus them.

>> Benjamin Ginsberg: Yep, that's, that's what I mean about gathering the evidence that would have been presented in 1000 or so lawsuits. And really examining the evidence that would have been behind those complaints to see if there is a problem or it can be corrected.

So whether you agree with Donald Trump on his charges about elections, which I don't, I don't believe they're accurate. But even if you do, now is the time to surface all that, all that evidence and really try and address any problems.

>> Bill Whalen: Yeah, well put. Well, Ben, I think we should wrap this up.

I think, you know, there's a lot to be thankful in this holiday. Season. I think you and I should be very thankful for the fact that we're doing a podcast which contains relatively good news, as opposed to you and I. When we first were scheduling this out, we thought we'd be sitting here in the middle of December going through hell scenarios with the constitutional crises, an electoral count vote being challenged, and states fighting each other over the outcome.

We had a pretty grim view of what might happen, and you know what? It didn't pan out, did it?

>> Benjamin Ginsberg: Yeah, I mean, I think you can make dinner reservations for January 6th now, Bill.

>> Bill Whalen: Sounds good. Yeah, you behave yourself on January 6th, Mr. Ginsburg, okay?

>> Benjamin Ginsberg: I will.

>> Bill Whalen: Okay. Ben, I enjoyed the conversation. I really enjoyed doing these podcasts with you, and just thank you very much for being part of the Hoover Institute. You do great work, and it's really an honor to have you on board.

>> Benjamin Ginsberg: Likewise, you do a great job with this podcast and all the other ones you're involved with.

And Hoover is just a marvelous institution I feel really fortunate to be affiliated with.

>> Bill Whalen: I'm gonna remember that I need a lawyer when I'm in jail, Ben.

>> Benjamin Ginsberg: [LAUGH ]

>> Bill Whalen: You've been listening to Saints, Sinners, and Salvageables, the Hoover Institution podcast exploring America's election system and the many challenges of the democratic process in these charged partisan times.

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That's delivered to your inbox weekdays. For the Hoover Institution, this is Bill Whalem wishing you all the best for these holiday seasons. Thanks for listening.