Democracy Hangs in the Balance
Part two of a conversation on voter turnout, vote counting, and what we can expect now.
November 5, 2020
Nov 5, 2020
11 Min read time
Part two of a conversation on voter turnout, vote counting, and what we can expect now.
Three weeks ago Joshua Cohen spoke with Reed Hundt about Trump’s strategy for winning. On November 4 they spoke again to discuss how Trump’s strategy played out, and what we can expect now.
Joshua Cohen: Reed, it’s very good to talk to you again. We talked a few weeks ago about democracy being on the ballot in this election. I am interested to know what you're thinking now, one day after the election. In our earlier conversation, you described a four-step strategy that you thought that Trump would follow: deny people the opportunity to vote; make sure that not all of the votes that people cast were counted; ensure favorable judicial rulings when he contests the count; and get Republican legislatures to take control of the electors if Trump still needs help. Let’s talk about the first three steps. On denying people the opportunity to vote: turnout was really high yesterday, and not only for Biden. Though Biden is significantly outperforming Clinton, the popular vote is also much closer than anticipated because Trump is way outperforming Trump 2016. What are your thoughts on the denial piece and how that played out?
“When you get a really big national turnout, you look for the major variable changing. This year, I think you have to attribute that primarily to the convenience of early voting.”
Reed Hundt: I suspect that the turnout on election day was remarkably low because the voting that occurred in the roughly thirty days prior to election day was astoundingly high. It appears that votes cast prior to election day this year exceeded more than two-thirds of all votes cast in 2016. That tells us that if we give Americans a more convenient way of voting than showing up in person on a Tuesday in November, we’re going to get a higher turnout, and if more states are in play turnout also rises. In terms of actually denying votes, or denying people the ability to cast votes, it’s hard to say. It does seem like the post office may have failed to deliver in just the way that democrats feared. As of now, it’s too hard to know how many ballots got lost.
JC: So you think the large vote comes from a reduction in the costs of voting rather than the mobilization of voter enthusiasm?
RH: Well, we know that each side spent somewhere between 2 and 3 billion dollars in communicating passion to the so-called base. But the turnout variables are primarily driven by independents, as opposed to the bases. The bases turn out pretty much all of the time with just a few percent increase or decrease one way or the other. So, when you get a really big national turnout, you look for the major variable changing. The major variable that changed was that more than two-thirds of the votes that were cast in 2016 were cast this year prior to election day. I think you have to attribute that primarily to convenience, a particularly important factor when reasonable people would want to avoid standing in a ballot line during the COVID-19 pandemic.
Another thing to consider is what this tells us going forward. For a greater turnout, it really would be a good idea to, number one, have voting occur for a month in advance as just happened in many, but not all, states. And, number two, it really would be a good idea to have election day occur on a weekend or be a national holiday.
JC: So lesson number one is that this makes a compelling case for reducing the costs of voting—unless you are against democracy.
RH: Another thing is that easier voting also is good for Republicans because, as you said, Donald Trump got lots more votes than he did in 2016.
JC: Lots more votes, and the popular vote is much closer than most people were anticipating.
“Easier voting also is good for Republicans because, as you said, Donald Trump got lots more votes than he did in 2016.”
RH: You say anticipating, and the anticipating comes from polling. Just like 2016, the polling was not very accurate. The Democrats might be disappointed, but they shouldn’t really be surprised. There aren’t great techniques for polling this huge, disparate population, which is somewhat online and somewhat on cellphone and somewhat irritated by being contacted by strangers. Hardly anyone opens the door and greets the pollster. It is very hard to do the sampling and it is also very difficult to determine who is a likely voter. It is also probably true that after being told every single day, and seemingly every minute, for four years that the media can’t be trusted, a lot of Trump voters don’t want to reveal their preferences. There are many reasons why it’s hard to get a good prediction. But of course the problem is the campaigns use the predictions to allocate time and money. So poor predictions produce poor decisions, and the result is that to a large degree nobody quite knows what’s going on. That’s good for the drama of elections, so we got that going for us.
JC: To your earlier point, Reed, it could also be that people might have underestimated the extent to which reducing the cost of voting reduces it for everybody. Trump outperforming Trump 2016, in addition to outperforming expectations this year, may owe to the capacities of their ground game. But it may also owe to the fact that the costs were reduced for Trump’s constituency as well, and those voters availed themselves of that.
RH: Maybe you should believe your eyes and not the polls. You know, the passion evidenced by some Trump voters clearly exceeded any demonstrated passion by Biden voters. Trump played on that by barnstorming in front of real people and having real TV coverage of actual events. Meanwhile, for health care reasons, Joe Biden always wore a mask and spoke primarily to parking lots filled with cars. The difference between the one kind of campaigning—so vivid, emotional, excited—and the other kind of campaigning was night and day. It probably had an impact on turnout, and yet Biden is still forecasted to win the popular vote and the electoral vote.
JC: Let’s talk about the second and third steps in the strategy: making sure that not all of the votes people have cast are counted and then getting favorable judicial rulings. What are the efforts that you see in terms of making sure that all the votes are counted and what’s the litigation going to look like around that?
“In terms of actually denying people the ability to cast votes, it does seem like the post office may have failed to deliver in just the way that democrats feared.”
RH: Well, judging by the way that this seems to be playing out, Donald Trump will need to have recounts that change the result in some states and he’s also going to need to hold his margin in other states. It looks like he’s going to need to have a recount in Wisconsin and Michigan. In other states, like Georgia, he needs to stop vote counts. So he cannot have a consistent strategy. He needs to recount in some states because he is behind, and needs to stop counting in states where he is ahead. He is in a difficult, and probably impossible position, which is good for democracy and a relief for Chief Justice Roberts, I’d guess.
JC: The spread in Wisconsin is roughly 20,000. That’s more than thirty times higher than the spread in Florida in 2000, as I recall. It would be difficult to win or to flip 20,000 or 30,000 votes.
RH: As a rule of thumb, no matter how big or small a state is, a recount never changes in any number greater than 10,000. I don’t see any recounts changing any results, but it’s too early to have a view on Georgia or North Carolina.
The Republican Party is going to be tempted to repeat what it successfully did in Florida in 2000. That is, find an issue that gets into the federal courts and out of the state system and have that issue be determinative of the outcome. They will try to get it to the Supreme Court. Now, this analysis doesn’t require any tremendous powers of perception, it just requires ears. Donald Trump said this earlier today.
JC: Right. That will happen in Pennsylvania. And what are the prospects? There’s “ballot curing,” where people sent in a mail-in ballot, there was some defect, they were told there was some defect, and then they sent back a new ballot. But that’s a really small number. They can just throw all the cured ballots away. The larger issue is the Pennsylvania Supreme Court’s deadline extension for sending in mail-in ballots, which have to be received by Friday. The Supreme Court turned down the cert petition from the Republican Party of Pennsylvania on this issue basically because they said they didn’t have time to deal with this before the election. But it was 100 percent clear from what Justice Alito wrote, signed by Gorsuch, and Thomas as well, that they would find in favor of the Republican Party of Pennsylvania. That is, they would say that it was unconstitutional for the Pennsylvania Supreme Court to have extended the deadline for receiving mail-in ballots. Fortunately, though, lots of mail-in ballots were received by Tuesday.
I think about 80 percent of the people who received mail-in ballots already returned them. Only half of them have been counted and Biden is running roughly 75 percent on the mail-in ballots. So just making the case that the mail-in ballots received after Election Day shouldn’t be counted and that the extension of the deadline by the Pennsylvania Supreme Court was constitutionally infirm may not be strong enough arguments to turn things around.
If Biden has Arizona, Wisconsin—I’ll take your number that you never turn around more than 10,000 in a recount—as well as Michigan and Nevada, then even without Pennsylvania, that’s 270.
RH: That’s what the Biden camp is thinking. If Pennsylvania ends up close and then there’s a federal court avenue for changing the counting in a way that gives Pennsylvania to Trump, then that’s pretty scary. It’s pretty scary to imagine the result in this particular Supreme Court. So, the Biden camp is thinking, I really hope that Pennsylvania either is not close or doesn’t matter. You have to believe that Chief Justice Roberts can probably persuade his colleagues not to get involved in altering the Pennsylvania result if it does not matter to the final outcome. The Supreme Court altering the Pennsylvania result would be a reenactment of Bush v. Gore, but on steroids. In that case, of course, they stopped the counting. But in Pennsylvania, the Court would have to change the result by throwing some votes out. Chief Justice Roberts wouldn’t want to do that because it would jeopardize the independence and integrity of the Court.
JC: We haven’t talked at all about Georgia. At some point on election night, the New York Times needle on Georgia flipped back from 95 percent Trump to 65 percent Biden, then it stayed there. Yesterday—with still north of 150,000 votes waiting to be counted from places that were going to favor Biden—the margin in Georgia was less than 100,000; it was about 80,000. As of this morning, Trump is leading by less than one percentage point, with an estimated 50,000 ballots remaining to be counted. If Biden prevails there, which it looks like he can do on the account of the mail-in ballots, then that puts him at 290. If Georgia goes his way, he’s at 306. I believe that that makes it, in Donald Trump’s lingo, a landslide.
“It’s not too early to say the following: this is an utterly dysfunctional election system. We knew it before, and now it is even more clear.”
RH: Whatever happens in Georgia, it’s not too early to say the following: this is an utterly dysfunctional election system. We knew it before, and now it is even more clear. There’s no possible benefit to such widely different methods state by state for counting through such attenuated processes. There’s no benefit to having a post office that isn’t organized to deliver all the mail. What you have now is extreme uncertainty for an indefinite time period. We can hope that this will be the last election that will be this crazy, because maybe this will produce reform.
On a very different topic, which I want to close on, it looks like the Republicans will hold the Senate. If there’s a President Biden and a Republican Senate, one true, absolute, and uncontested strong suit for Joe Biden is his ability to reach across the aisle. We will have to see whether that is possible—whether there are, in a world in which Trump is not the president, Republicans who are willing to compromise.
We understood that while Trump was the president, Republicans were afraid of his fandom. We’ll just have to see if there’s a willingness to compromise as there was in 2009, right? Then, there were Republicans that crossed the aisle to vote for the stimulus. That is what Biden would have to look for starting as soon as he can be declared the victor.
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November 05, 2020
11 Min read time