The midterm election is here. But can it go smoothly? UCLA Law’s experts weigh in
Voting by mail. Misinformation. Control of Congress. We have read the news, received the mailers, and seen all of the ads. The issues abound. It’s enough to make your head spin.
Now offering clarity: UCLA School of Law’s Rick Hasen and Shelby Wayment. Hasen is the Gary T. Schwartz Distinguished Professor of Law. The nation’s go-to authority on election law, he directs the Safeguarding Democracy Project and serves as a professor of political science by courtesy. Wayment is the project’s staff attorney. Last month, they published a white paper, “A Judicial Guide to Search Warrants Seeking Election Materials: How Alternatives to Election Material and Ballot Seizures Can Avoid Irreparable Harm, Promote Election Integrity, and Further the Public Interest,” and filed an amicus brief in the U.S. Supreme Court that argued against the U.S. Postal Service’s attempt to implement new limits on mail-in voting. The Court agreed and rejected that plan. But the midterm election offers plenty more to keep track of. Let’s dig in.
What concerns you the most about the midterm election?
Hasen: We are in the unfortunate situation where the greatest threat to the integrity of our elections is federal government interference in state and local election processes. It turns out that our highly decentralized system of election administration, despite its flaws, serves as a pretty good bulwark against attempted interference with the conduct of free and fair elections. I will be watching if the federal government seeks to interfere with the process of tabulating ballots and certifying the results, something much more likely to happen if control of the U.S. House of Representatives or Senate depends on the outcome of one or a handful of races.
Wayment: I’m really concerned about the amount of misinformation around our elections generally, especially in this midterm election. Even well-intentioned people can accidentally spread misinformation, and it can be very difficult for voters to access real-time, accurate information from credible sources. When voters are distrustful of the system, it weakens trust in electoral outcomes, institutions, and our democracy overall.
What can voters, especially those in California, do about all the misinformation?
Wayment: Because California takes a long time to count our ballots, misinformation and conspiracy theories can arise from that delay. Voters should be focused on making a plan to vote and ensuring they have sources of accurate information they trust, including from their local election office. Amplifying good sources of information is one of the best ways to fight against misinformation. I don’t expect voters in California to encounter problems actually casting their ballot, but voters should be prepared for the possibility of unintentional, or even targeted, misinformation and conspiracy theories designed to cause mistrust and chaos.
On a broader level, what is most troubling about mail-in voting right now?
Hasen: That the U.S. Postal Service, because of changes in how it handles election mail and because of inefficiency, will not be able to deliver all mailed ballots on time. My advice to people who cannot send in their ballot early is to either use a government drop box if available or drop off the ballot at an official polling location rather than into a blue USPS mailbox.
California voters once again find themselves overwhelmed with a lengthy ballot full of propositions and so many other things to vote on. For example, in one neighborhood near UCLA, the ballot runs nine pages and has more than 65 different contests in which to make a choice. Why is it this way, and what can be done to simplify things?
Wayment: I do not blame voters for feeling overwhelmed, and this is a feeling that’s shared by a majority of voters in California. The initiative process in California was created over a century ago and designed to give voters the right to enact policy changes, which has led to a lot of structural reforms that may not have ever been proposed by the legislature otherwise, like term limits. But there are some major limitations on the initiative process, including that the legislature or voters can’t generally edit proposed initiatives, which can lead to some confusingly worded initiatives and competing ballot measures that would nullify other ballot measures if passed. It’s a tricky balancing act to reform the initiative process in a way that doesn’t unduly limit ballot access while improving the quality of proposed initiatives.
Another continuing issue in California is the slow counting of ballots. This could, in turn, delay clarity on which party wins control of the U.S. House of Representatives. What should we do?
Hasen: California has taken some steps to speed up the delivery of ballots, but because millions of Californians vote by mail in the days just before election day, some delay is inevitable. Having to wait a week or so for there to be enough results so that news organizations can safely predict election winners is not itself problematic; after all, officeholders will not be taking their positions until January. But in this era of mistrust, the time as we await results is a period when conspiracy theories can take hold and voter confidence fall. The biggest factor here in terms of how much this will matter after the election is whether control of one or both houses is up for grabs. The closer the overall outcome, the more pressure there will be on places like California to count ballots quickly but fairly.
What gives you the most reason for optimism that we’ll have a broadly free and fair election?
Wayment: How prepared our state and local election officials are. Most voters, when surveyed, trust their local election officials to run free and fair elections. Election administrators are doing an admirable job administering elections, despite being underfunded and understaffed.
Hasen: The three main bulwarks against attempts to interfere in elections — the courts, state and local governments, and the people — have held so far. Courts have stopped attempts to mess with state and local election rules. Ballots have been mailed, and people are already voting by mail and in person. Election officials have transparent processes in place so that people can be assured that their votes will be fairly and accurately counted. With a lot more hard work and some luck, we should make it through the November elections. (I do hope for a future in which interviews like this before an election are no longer necessary because elections are administered fairly and all voters have justified confidence in the election system.)