Election experts share concerns about the midterms

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0:15Richard Hasen: This is Fresh Air. I'm Dave Davies. The midterm election is less than two weeks away, and for months, President Donald Trump has been warning that American voting systems are not to be trusted, including in his July primetime address to the nation. Hundreds of thousands of non-citizens and dead people are listed and active on the voter rolls, and yet we still have elections with no voter ID, no proof of citizenship, and tens of millions

0:45Dave Davies: of ballots floating aimlessly through the mail.

0:48Richard Hasen: Trump has claimed that mail-in ballots may be forged, that voting machines can be hacked, and that corrupt Democrats will conspire to steal votes, as he claims they did in his 2020 loss to Joe Biden. He's tried to affect the election by imposing new restrictions on registration and voting, requiring the post office to screen who can receive mail-in ballots, and demanding that states purge thousands of people from voter rolls. Those moves have mostly been blocked by courts, but many election experts worry that Trump's claims are laying the basis to challenge the outcome of the midterms if results don't go his way.

1:25Richard Hasen: Today we're going to speak to two experts on elections. A little later, we'll talk to Al Schmidt, the chief elections official in the swing state of Pennsylvania. But first, we'll speak to Richard Hassan. He's director of the Safeguarding Democracy Project at the UCLA Law School and founder of the popular Election Law blog. He's author of the book A Real Right to Vote, How a Constitutional Amendment Can Safeguard American Democracy, now in paperback. and a forthcoming book, Unbent Arc, The Rise and Decline of American Democracy, 1964 to 2024. We recorded our conversation yesterday. Rick Hassan, welcome back to Fresh Air.

2:05Richard Hasen: It's good to be with you. You know, you've written that several attempts by President Trump to interfere with the coming election have been decisively defeated. One of them was an effort mostly by the Department of Homeland Security to get states to purge large numbers of people from their voting rolls, people the administration said they had identified as likely non-citizens registered to vote. That effort, it turns out, is still active, at least in California. But first, tell us what we know about where these lists of non-citizen voters came from.

2:37Dave Davies: So the United States is pretty unique compared to other advanced democracies in that we don't have a national identity card. We don't have a national database of all of our voters. We don't automatically register our voters. So we face problems here in terms of knowing who is eligible to vote and when they move from place to place to change their voter registration. So the federal government has some data on citizenship. It's got something called the SAVE database. We know that this database is not all that reliable. We also know that it's not all that up to date. So sometimes it might flag someone as a non-citizen who in recent months might have been naturalized as a citizen.

3:17Dave Davies: And so the federal government has been using the SAVE database, as well as some other commercially available databases, to try to come up with a list of citizens that they're trying to have the states compare with their own state voter registration list to take out people who are not eligible to be voting. Right.

3:37Richard Hasen: And we should note that it's been reported that the Department of Homeland Security has had hundreds of agents scouring these various state voter lists to try and find these allegedly non-citizen registered voters, right? Yeah.

3:49Dave Davies: So they've been doing that. One of the problems is that there are many people with the same names. And unless you have really good identifiable information like social security numbers and driver's license numbers, it's possible to make mistakes. So that's one of the reasons why the federal government has sued to try to get what are called the unredacted lists that have all of that personal information. Most states, it's against the law to provide that information to anyone. And the federal government sued 31 states and Washington, D.C. So far, there's zero for 26 in their lawsuits to try to get these unredacted voting rolls.

4:31Dave Davies: And that's in part because our Constitution doesn't give the federal government the power to run elections. It says that states run elections. Congress can pass statutes that govern some of the aspects of congressional elections. But there's no role for the federal government. So here you have the Trump administration trying to intrude on what's traditionally been a state and local prerogative.

4:54Richard Hasen: So in some cases, the federal government, the Department of Homeland Security has given states actual lists of people and said, look at these people, you should purge them. How have states responded to that?

5:06Dave Davies: Well, Nevada is a good example. So a few months ago, the Department of Homeland Security said they had identified hundreds of thousands of non-citizens across four different states. One of them was Nevada. There were 16 ,000 people on this possible list, it got whittled down to 185. And eventually, when state officials investigated, it went down to zero. That is, all of the 16 ,000 people who were identified either were not registered to vote or were eligible to register to vote. In California, in that same report, the Department of Homeland Security, without providing the data, said that there were up to 190 ,000 non-citizens.

5:50Dave Davies: Now, in the most recent actions in California, they've whittled that number down to 20 ,000. And so far, they've arrested 28. And it appears from those arrests that at least some of those people either were not registered to vote or did not break the law intentionally. Right.

6:08Richard Hasen: And as I understand it, this list of 20 ,000 names that they wanted the state of California and officials in Los Angeles to check was simply provided to them on a thumb drive with a password on a sticky note? Is that right? Yeah.

6:21Dave Davies: So it's worth taking a step back and recognizing how unusual this whole set of events is. So ordinarily, there's a lot of cooperation between the federal government and state and local governments in terms of administering elections. Now we have this very different situation where the states and localities are seeing the federal government as kind of an adversary that's been threatening state and local election officials with prosecution if they don't adequately police their voting rolls in ways that the Trump administration wants. And the idea that in the middle of an election, you know, in California, ballots are already out.

6:57Dave Davies: We're getting into the period of in-person early voting. That in this period that the federal government would send on a thumb drive with the password on a sticky note the names of 20 ,000 possible non-citizen voters and ask 48 hours for the state to agree to go through this list and purge voters. I mean, it's just incredible. It's not the kind of thing that ever has happened that I'm aware of. And there's a federal law called the National Voter Registration Act. It's a law that was passed when Bill Clinton was president in 1993. And it says that states can't do these last-minute voter purges because doing so risks disenfranchising eligible voters.

7:43Richard Hasen: Now, as you said, 28 people were charged with either having registered or voted as non-citizens earlier this week. Some were actually arrested and taken to court. Just tell us what that experience was like as it's been reported.

7:59Dave Davies: Well, it seems clear that this was a publicity stunt that was meant to back up the federal government's attempt to get an order from a judge, a temporary straining order that would require California to go through this list and segregate out ballots from people who are on this list. So we know that a branch of the Department of Homeland Security did a 5 a.m. raid. There were helicopters, SWAT team, to arrest a man in pretty bad health. He had recently had six surgeries. He was arrested and taken into custody. And eventually, four hours later, they told him what he was charged with. He has no idea what's going on here.

8:43Dave Davies: What we know from what the Los Angeles Times has reported is that many of these people don't even know why they were arrested. And in the case of the man who was taken in the pre-dawn raid, it's possible that a relative who has the same name, who is a U.S. citizen, was confused for this person who was arrested. And it may be that it is the person who is allowed to vote whose name is on the voter lists rather than the person who was arrested.

9:14Richard Hasen: And I believe it was reported that the four people who on the first day made their first appearance in court were often appeared in like shackles, right? Leg irons in some cases. And then were released on their own recognizance. Yes.

9:29Dave Davies: And the federal government tipped off the New York Post, which was given an exclusive to cover this. There were photographers from the Associated Press. This was clearly an orchestrated effort to make it appear that non-citizen voting is a huge problem. The headline at the New York Post talked about a network of people conspiring to commit fraud. But there's no conspiracy charge. There's no evidence that any of the people who were charged even know each other. So this really seems to be a show, which might be for various reasons, but it doesn't seem to be for legitimate law enforcement purposes.

10:07Richard Hasen: And we should note that in many states, there have been cases where voters, when they got driver's license, as many immigrants have, were registered to vote in some cases without their knowledge, or at least it wasn't exactly clear that they understood they were being registered, right?

10:21Dave Davies: Yes. So this takes a little bit of explanation. So the 1993 law, the National Voter Registration Act, among other things, provides that state offices like Departments of Motor Vehicles have to offer opportunities for people who get their driver's license or do business at the DMV to register to vote. When you are at the DMV and you are presented with the opportunity to register to vote, you're asked if you're a citizen. And sometimes you're asked on one of those pin pads, which I know, at least here in California, they're sometimes hard to read. It's possible that someone mischecks a box and they inadvertently get registered to vote.

10:57Dave Davies: We had a situation recently in New Jersey where because of an error by a vendor of software that the Department of Motor Vehicles there used, there were 6 ,000 non-citizens who were inadvertently registered to vote. Those people were sent registration materials. They were sent voting materials. We know that 400 of them voted, but that doesn't necessarily prove any kind of criminal intent. In order to be criminally liable for violating the federal law against non-citizen voting. The federal government has to prove that you willfully violated the law. Those votes, of course, are illegal and they need to be removed from the voting rolls.

11:36Dave Davies: But in terms of finding a large criminal conspiracy or some kind of effort to register non-citizens and get them to vote in a particular way, we just haven't seen that. The last credible allegations of something like this go back to the 1980s in California.

11:54Richard Hasen: Another effort that you note President Trump made was to get the post office involved in the distribution of absentee ballots. What did he do? How did that turn out?

12:04Dave Davies: So President Trump has issued two executive orders on elections. So in the first executive order, he tried to get a federal agency called the United States Election Assistance Commission to change the form that the federal government has for people to register to vote to require people to provide documentary proof of citizenship, like a birth certificate or a naturalization certificate, before they can register to vote. That effort was stopped by courts, which said that the president has no role to play in the conduct of elections. That didn't deter the president. He issued a second executive order in March of this year.

12:48Dave Davies: And among other things, it created a whole system for the United States Postal Service to become the arbiters of which mail-in ballots they would accept from states. And it was this very convoluted process. First, it required the states to provide certain ballot envelope designs, and those had to be approved by the United States Postal Service. Then each envelope had to contain a unique machine-readable barcode so that each individual envelope could be tracked to know who it's going to. And then the state would have to upload a list of their voters. And the Postal Service would have to match the envelopes that are submitted by the state with the list of voters.

13:39Dave Davies: and it would have to reject an entire batch of these ballots if there was any discrepancy between the list and what was on the ballots. This was a very complicated system, but what made it particularly troublesome in this election is that the Postal Service hadn't gotten its act together. It had not set up the web portal that its own rules said it was going to set up for the states to upload their citizenship to the database. And what this would have meant is that the United States Postal Service would not have been allowed to accept even a single ballot from any state because no state would be able to upload its list of citizens.

14:18Dave Davies: It took three trips to the Supreme Court to stop the United States Postal Service from putting into effect a rule that would have shut down mail-in balloting for the 2026 elections. Now, this rule is still in litigation, and there's a chance that it will be in effect for the 2028 elections.

14:39Richard Hasen: Richard Hassan directs the Safeguarding Democracy Project at UCLA's law school. Our interview was recorded Tuesday morning. It was reported this morning that Democrats have filed a lawsuit against the Trump administration to stop it from interfering with voter rolls and threatening election officials with criminal prosecution. We'll continue our conversation after a break. This is Fresh Air.

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16:28Al Schmidt: She's right. There is money, but maybe not for France. Why does the market seem to be turning on France? And what can the rest of us learn from this? Listen to Planet Money on the NPR app or wherever you get your podcasts.

16:40Richard Hasen: This is Fresh Air, and we're speaking with Richard Hassan, director of the Safeguarding Democracy Project at the UCLA Law School and founder of the Election Law blog. Let's talk about some other efforts that might be made by the president in the course of the midterms. One thing that's been written about is that he could declare a national emergency and thereby mobilize federal resources to intervene directly in voting. What about that prospect?

17:09Dave Davies: Well, the president's already declared a national emergency at the southern border. When the president declares a national emergency, it unlocks certain powers for the president. But none of those powers are involving elections. So even if Trump declares a national emergency by falsely claiming, for example, that a foreign government is trying to interfere with U.S. elections, that still doesn't give the president the power over the administration of elections. If Donald Trump declared tomorrow that we're not going to hold elections, that would have no legal effect because it's not the federal government that runs elections.

17:45Dave Davies: It's the states and the local governments. And Trump was on a right-wing podcast. He was asked about this, and he just said something like, stranger things have happened. So, you know, kind of keeping the conspiratorial right satisfied that he's considering this. But I think it's extremely unlikely he would do it. And if he did, I don't think it would have any effect on how our elections are actually run.

18:10Richard Hasen: Another fear is that armed law enforcement personnel will appear at polling places, like particularly ICE agents. Can that happen?

18:18Dave Davies: I believe there are three different federal laws that bar armed federal officers from appearing at polling places. So it would be illegal. And if it happened, I think it would be possible to get a court order against it happening. But I think there's a more fundamental reason why I don't think it's going to happen. Remember, we're talking about a series of congressional elections and elections for Senate as well as for state and local offices. This is not like a presidential election where there's a battleground state, like we could say. It all comes down to what happens in Pennsylvania or Wisconsin.

18:53Dave Davies: There might be a very close election for Congress in Ohio or in California. There aren't enough ICE agents to send around. And also, we saw the reaction of the public in Minneapolis when there were these surges of ICE agents to try to engage in immigration activities. I think it would be a big risk of a political backlash against the president if there was an attempt to try to physically stop people from voting or to intimidate voters by sending ICE agents to the polls.

19:31Richard Hasen: Then there's the more extreme step of seizing ballots or voting machines. This has never happened, as far as I know, in an ongoing vote, right?

19:41Dave Davies: I think if the president is going to try to interfere with the elections, he's much more likely to do so on the back end of the election rather than the front end. By the front end, I mean when people are actually going and voting, millions of people going to polling places. It would be very hard to disrupt that. It would be very public. What I'm more worried about in the event of a very close election for control of the House or Senate is that Trump's Department of Justice might try to interfere with the tabulation process, that's the counting of ballots, or the certification process when state officials say, here's who the official winners are.

20:19Dave Davies: And one way that the Department of Justice could potentially get involved is by trying to get a federal court order to seize ballots or seize voting machines. The reason we care about this is because Donald Trump has said that he regrets not seizing voting machines after the 2020 election that he lost to Joe Biden and contested. Now, we did have a seizure of ballots in 2025 in Fulton County, Georgia, that took the ballots from the 2020 election, so a long completed election. We also had Chelsea Gabbard, the former director of national intelligence, have the Department of Homeland Security seize voting machines in Puerto Rico that were then taken and looked at by federal government workers.

21:09Dave Davies: But what we have not had is the seizure of ballots or voting machine in a live election, one where the winner has not yet been determined. When ballots or machines are taken out of the possession of election officials, you break what's called the electoral chain of custody. That is, one of the ways that we know that elections are free and fair is that the ballots are always under the control of election officials, and typically with transparency measures like cameras or other ways of observing to make sure that no one is meddling with the ballots. If ballots are taken out of the custody of election officials, ballots could be added to or altered or taken away.

21:49Dave Davies: It would be incredibly dangerous. It would require getting a search warrant from a federal judge. And so one of the things that we've been doing at the Safeguarding Democracy Project and others have been working on is trying to educate judges. Judges know a lot about criminal law. They know a lot about search warrants. They don't know a lot about how elections are run. And so we're trying to explain the kind of irreparable harm that can happen if ballots are allowed to be taken outside the custody of election officials. There are ways to satisfy legitimate law enforcement purposes if there is, in fact, probable cause that a crime has been committed.

22:26Dave Davies: There are ways to protect those ballots as evidence without breaking the electoral chain of custody.

22:31Richard Hasen: The other prospect that people are talking about is that after the election, that the clerk of the United States House of Representatives, who was appointed by the speaker, Mike Johnson, could refuse to seat Democrats in closely contested races. What's the check on that?

22:48Dave Davies: Well, so to begin with, there's a political check. If, for example, the news organizations have said that Democrats have won enough elections to retake control of Congress, if the clerk, who is a bureaucrat, came in and said, well, no, these races are contested. We're not going to let these people be seated and get to vote for Speaker of the House. I think that would be politically very dangerous. That would look like a literal coup d 'etat. That is, it would be trying to turn an election loser into an election winner, in this case through fraud. if it did happen, which I think is very unlikely, I think there would be resort to the courts.

23:33Dave Davies: And courts would come in. Now, ordinarily, a court wouldn't interfere with a congressional process. Under the separation of powers, that would be a political question. But the clerk who works for the House is not the House. And so I think the courts could hear such a challenge. And it's Extremely unlikely that both politically and legally this kind of move could happen if, in fact, the Democrats have easily taken control of the House. Now, that leads me to a more general point about what we expect after November 3rd. It's all about the margins. If, in fact, we do not have a close election for control of the House or the Senate, I would be very surprised to see any attempts to try to wholesale change the results of the elections so that control of the House or Senate could flip.

24:31Dave Davies: If the elections are very close, for example, suppose that control of the Senate comes down to who wins in Alaska. Alaska, which takes a very long time to count their ballots because of their rural populations and where they use ranked choice voting, which takes longer to tabulate results. If it comes down to one seat, then I think all bets are off. And then I'm very concerned that the Trump administration would try to do things to manipulate the outcome of the elections.

25:02Richard Hasen: I know you've written about campaign finance and the spending in this election is truly unprecedented by individuals. We've seen reporting that Elon Musk has pumped$276 million into the midterms, a figure that's probably out of date by now. Over$150 million has gone through a couple of transactions into the Texas state Senate race. What's this doing to our democracy and what can we do about it?

25:27Dave Davies: So there's been a real sea change since the United States Supreme Court decided the Citizens United case in 2010. Some of it is legal change, the creation of super PACs. But even the seeds for super PACs, which are independent groups that can raise unlimited sums from individuals, corporations, unions, even the seeds for that were planted in a 1976 case called Buckley v. Vallejo. But something has changed psychologically on the part of big donors in that they're no longer shy about putting their money into elections. And so just to give you some statistics, the first donor who gave at least$100 million to groups in a federal election was Sheldon Adelson back in 2018.

26:16Dave Davies: We only had one or two people or couples in this category,$100 million, just an obscene amount of money for one person to be able to give an election. By the 2024 elections, we had nine individuals and couples who fit into that category. And Elon Musk set the record with almost$300 million in spending. I think he's likely to exceed that in a midterm election, which is even more astounding when typically the spending is much lower than in a presidential election year. It's a fundamentally unfair system in which we allow the wealthiest of Americans to have outsized influence, not only over who's elected by increasing the chances that the candidate support will be elected, thanks to all of the campaign dollars, but also outsized influence over what elected officials are going to do once they're in office.

27:16Dave Davies: So if you are the recipient of Elon Musk's generosity, you're going to be very solicitous of his interests and what he wants to do. And if you're on the other side, you might fear doing something that might antagonize Elon Musk for fear that he could unleash really astronomical sums against you. And so the system, we might call it corruption, it certainly is an unequal system where the wealthiest among us are able to translate their economic power into political power. And what's the prospect for doing something about it? The prospects for doing something about it in the short term are quite low because the current regime we have is the product of Supreme Court decisions, especially over the last 20 years.

28:07Dave Davies: We have a very conservative Supreme Court that on campaign finance issues takes a very libertarian view of the First Amendment and sees most limits on money in politics as unconstitutional, as a violation of the rights of free speech and association. So how could you change that? You either have to change the Constitution or you have to change the Supreme Court. Both of those things are very difficult to do. I actually think it would be probably easier to change the Supreme Court than to get through a constitutional amendment, which requires super majorities in both the House and Senate and super majority of states to approve a constitutional amendment.

28:46Dave Davies: So I think there's going to be a lot of pressure if Democrats retake the House and the Senate and the presidency in 2029 to try to deal with some of the issues related to our democracy, from campaign finance to partisan gerrymandering to the Supreme Court's evisceration of the Voting Rights Act.

29:06Richard Hasen: Well, briefly returning to the election in front of us, you know, the Washington Post recently reported that a group of former national security officials are warning state election officials to be on the lookout for meddling in interference on November 3rd. I'm wondering what you're going to be doing that day and how you anticipate affecting this, following it, covering it.

29:30Dave Davies: Usually election day is pretty quiet for me because things generally go smoothly. Of course, there's going to be some place where there's a power outage and machines are not working or a county didn't provide enough ballots to a polling place. There might be some last minute skirmishing about whether polls need to be kept open an extra hour or two for people who were not able to vote. But it should be quiet on Election Day, especially because I think many people have been heeding the advice of election experts to vote early if you can. And I would say, if we're going to vote by mail, vote as early as possible or put that ballot in a drop box or bring it to a voting center if that's allowed in your state.

30:12Dave Davies: So hopefully it will be quiet. It'll be the day after Election Day or a couple of days after Election Day when we'll really have a sense of whether or not we're going to make it through this period. And in 2020, I warned that we would have a real danger of an attempt to interfere with free and fair elections, a peaceful transition of power. and people said that I was too alarmist. This time around, as I see the bulwarks of our democracy, the states, the courts, and the people protecting free and fair elections, I'm more optimistic and people are saying I'm too optimistic. So let's hope that it goes that way.

30:48Richard Hasen: Well, Rick Hassan, thank you so much for speaking with us again. It was great to be with you. Richard Hassan is director of the Safeguarding Democracy Project at the UCLA Law School. Since we recorded our conversation, there was another large political contribution. Michael Bloomberg gave$80 million to the Democrats. Coming up, we hear from Al Schmidt, chief election official in the swing state of Pennsylvania. This is Fresh Air.

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31:33Dave Davies: Maya Higa built an animal sanctuary that's closed to the public, but welcomes thousands of online visitors every day. All the silly things that animals do when we aren't looking, or when they think we're not looking, we can watch on the live cams. Ideas about understanding wild animals without getting in their way.

31:51Richard Hasen: That's on the TED Radio Hour podcast.

31:53Al Schmidt: Listen on the NPR app or wherever you get your podcasts.

31:57Dave Davies: Want to survive the holiday conversation? Come prepared. Pop Culture Happy Hour gets you up to speed on the movies, music and TV shows everyone is talking about. This way you'll have a hot take at the table instead of quietly eating a dinner roll. Listen to Pop Culture Happy Hour on the NPR app or wherever you get your podcasts.

32:18Richard Hasen: This is Fresh Air. Our next guest, Al Schmidt, had a memorable experience in the 2020 presidential election, which Donald Trump has long claimed was stolen. Back then, Schmidt was the lone Republican on the three-member election board of Philadelphia, a Democratic stronghold in the key swing state of Pennsylvania. Schmidt helped supervise and publicly defended the integrity of the long and tedious count of hundreds of thousands of mail-in ballots. The count took days and eventually gave Democrat Joe Biden the state's 20 electoral votes. But it earned Schmidt nationally reported insults from then-President Trump and threats from some of his followers.

32:58Richard Hasen: Today, Schmidt is Secretary of the Commonwealth, the chief voting official for all of Pennsylvania, which will again be a critically contested state in a national election with high stakes for Donald Trump. There are four competitive congressional races in Pennsylvania, which could help decide control of the House of Representatives. We thought it would be useful to get Schmidt's take on this election season and what he expects and fears from the voting on November 3rd and the count and certification to follow. Before we begin, I should note that Al Schmidt and I have known each other for a long time.

33:31Richard Hasen: I was a political reporter for many years for the Philadelphia Daily News and public radio when Al was active in local Republican politics. Al Schmidt, welcome to Fresh Air.

33:40Al Schmidt: Great to be back with you, Dave.

33:42Richard Hasen: Let's spend a moment on that harrowing experience following the 2020 election. And to remind listeners, this was the first COVID election, right, 2020, when mail ballots, normally not common in the United States, were all over the country. Back then, Philadelphia was typically used to processing about 13 ,000, 14 ,000 absentee ballots. Now there were over 370 ,000 mail ballots. And the state election code prevented your election workers from even opening the envelopes until election day, which meant it was going to take a long time. It was expected that Donald Trump would be ahead on the machine vote because he had discouraged people from using mail ballots.

34:21Richard Hasen: Tell us what it was like to try and get all those ballots counted as quickly as you could. Yes.

34:26Al Schmidt: And to help sort of set the scene here, you're right. It was the first election that Pennsylvania had with no excuse mail ballot voting, meaning any voter could vote by mail. Philadelphia also had essentially new voting systems in person at the polls that election. We also had the COVID environment possibly at its peak. And we also had civil unrest in Philadelphia. So we were trying to manage our way through all of those different challenges. With mail ballot voting, we had about half of our voters, probably because of the COVID environment at the time, vote by mail. That's a lot in a presidential election with predictably very high turnout.

35:05Al Schmidt: But one thing that puts Pennsylvania at a disadvantage then and now is that our counties can't begin processing mail ballots until 7 a.m. on election morning. Other states begin that process days, if not weeks.

35:19Richard Hasen: They can rip them in the envelope so that you're ready to process the ballots.

35:21Al Schmidt: That's right. Right. So on election night at 8 p.m., they're ready to report the results of what they had worked on for many days, if not weeks. In Pennsylvania, that's not the case. So in 2020, obviously, we had the in-person results coming in first. Those are people who voted at the polls on election day, followed by these waves of updates for voting by mail as they were tabulated by our counties.

35:48Richard Hasen: Right. Right. So you would give regular updates on what the count of the mail ballot showed. And what was happening was you could see that Donald Trump's lead in the state was shrinking as more Democratic votes rather than Republican were reflected in the mail ballots. It got to a point where it got ugly and personal, didn't it? I mean threats, right?

36:07Al Schmidt: Yes. So we had had fairly general threats prior to that, like you're going to get what's coming to you or things that don't really rise to a level of concern for me, especially at this point. But as it went on, they certainly got a lot more specific, naming my children, providing my address in the threats, obviously graphic descriptions of the violence. So I really relied on law enforcement, especially the Philadelphia Police Department, which did an incredible job. And I'm always going to be grateful for really taking care of my family. Like we were inside the convention center. We had many, many police officers and sheriffs present outside.

36:52Al Schmidt: That's probably why threats were targeting your family, right? You're not there. It's all about trying to keep you from doing your job. So we couldn't allow ourselves to be distracted from doing our job because of the threats targeting our families.

37:07Richard Hasen: Was your family relocated?

37:09Al Schmidt: My family was relocated and then we had around-the-clock police protection for many months after that because the threats continued, certainly leading up to the certification of the presidential election many weeks later. So when I walked the dog, police were coming with us. When we took the kids sledding, the police were there. It was just a constant presence. Thanksgiving, Christmas. It's sort of surreal. I don't mean to laugh about it, but it was a surreal environment. And we got to know them pretty well. And like I said, I'm grateful.

37:45Richard Hasen: So you're still a registered Republican and you're serving a Democratic governor in a swing state. So here we are. And President Trump has been very, very active in warning that there will be fraud and that mail ballots are subject to fraud. And not just talking. I mean he's tried to do things and get the government to do things which would affect the voting in this election. Give us a sense of the kind of incoming demands you have gotten from the federal government.

38:15Al Schmidt: Well, there have been several, primarily from the Department of Justice and from the Department of Homeland Security. The biggest, of course, was demand that we provide Pennsylvania's voter rolls to DOJ and not just the publicly available voter rolls but the Social Security numbers of every registered voter in Pennsylvania that we have, every driver's license number and all the rest. So that's information that we are obviously typically prohibited from sharing. It would not be legal for us to share. And it was clear that we weren't going to provide that information and we declined their demand.

38:50Al Schmidt: That information has to be safeguarded. Nothing would jeopardize election integrity more than Social Security numbers and driver's license numbers being shared with multiple government agencies with unclear control over that sort of information. So we declined. The courts ruled in our favor as they did in more than two dozen others at this point in these lawsuits against DOJ.

39:17Richard Hasen: Right. I believe also the Department of Justice told you that there were 14 ,000 non-citizens registered to vote in Pennsylvania. Do I have this right?

39:27Al Schmidt: Department of Justice and Department of Homeland Security. The accusation was that we have north of 14 ,000 non-citizens registered to vote in Pennsylvania because of whatever data matching using whatever data sets in whatever way that led them to reach that conclusion.

39:46Richard Hasen: This came your way when? Like two months ago?

39:48Al Schmidt: Some months ago. OK. And then we responded rightly, I think, asking for more information on this. Like what data was used? From what data sets? How did the matching occur? What do you consider a match and not a match? Like I have the same name as my dad. Would we show up as a match as the same person? Because they obviously did not have social security number, driver's license number, which is a unique identifier that everybody has that would be necessary to do that sort of matching. And even when that matches, you still have to do the hard work. You still have to do the research. And I was a Republican election commissioner in Philadelphia for 10 years.

40:26Al Schmidt: Election integrity is very important from my point of view. And it's important to handle it responsibly and not just cry wolf every time you have some sort of data match based on garbage information.

40:40Richard Hasen: And so you responded saying, give us more information. And then what happened?

40:44Al Schmidt: We had a virtual meeting with them where we asked more questions. The answers to those questions obviously were insufficient to provide us with any sense of security or certainty related to the reliability of their data. And that was the end of it. Other than a letter from the Department of Justice saying, as you currently know, you are under criminal investigation.

41:05Richard Hasen: Criminal investigation?

41:07Al Schmidt: Yes.

41:07Richard Hasen: When you're under criminal investigation, you generally know that by other means, like you get a grand jury subpoena or investigators come to you to talk to you.

41:15Al Schmidt: You would and it also doesn't usually start as you must know or as you know. But there's nothing certainly special about that. Every secretary who refused DOJ's demand received the same letter.

41:27Richard Hasen: We'll take a break here. Let me reintroduce you. We are speaking with Al Schmidt. He is Pennsylvania's secretary of the Commonwealth, the state's chief election official. We'll talk more after this short break. This is Fresh Air.

42:05Al Schmidt: or wherever you get your podcasts.

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43:03Richard Hasen: As you look forward to the election just a little less than two weeks away, what worries you?

43:09Al Schmidt: Well, anyone involved in the election administration worries about everything all the time. And any issue, big or small, can be exploited to undermine confidence in election results. So that's always a concern. It's never a question of things not being a concern. But obviously now we've had to consider a lot more things than we did in the past, such as the threat of federal interference or anything like that. So we work with our counties. We do tabletop exercises with them. We work with our state partners, Pennsylvania State Police and National Guard and others to work through different scenarios so that should anything occur from any direction, we're all prepared and can communicate and know what everybody's roles and responsibilities are.

43:56Richard Hasen: There's a lot of discussion about how common or uncommon election fraud is in the country. And you're in a better position than most people to have an opinion about this because you participated in elections not just as an election official but as a Republican candidate running for office in a city run by Democrats. You also, when you were a city commissioner on the election board in Philadelphia, did a study of election improprieties and fraud. So what did you find? I mean, is there fraud out there?

44:25Al Schmidt: Well, we did find evidence of cases of voter fraud as we always have in Pennsylvania and elsewhere. It's just that it occurs extremely infrequently and has never had any impact on the outcome of an election. But that's not to shrug it on. And I made several referrals to a U.S. attorney's office and to the district attorney's office and attorney general's office and worked with all three levels of law enforcement in Pennsylvania and in Philadelphia to investigate and when warranted, prosecute and hold people accountable who did commit acts of voter fraud. And it was always at a very local level affecting very small races because that's where a handful of votes can really impact the outcome of an election, not necessarily president of the United States or any statewide race.

45:22Richard Hasen: One of the things you hear about corruption in Philadelphia is that dead people vote. You actually looked into this once, right? Tell us that story.

45:29Al Schmidt: I did at great length. It is the easiest thing in the world to prove if it occurred. You know when a vote was cast and you know when a voter died. You have a record of when the person died and you have a record of when their vote was cast. So we worked comparing the Social Security Death Index against the voter rolls and narrowed it down to in the end it was about 10 to 12 cases that I was sure that we got. I was sure that we had identified 10 to 12 cases where a dead voter had voted. But you can't just rely on a data match and say that's evidence of anything. It was only a lead. So that's where you had to do the hard work.

46:09Al Schmidt: You had to knock on doors. The first door I knocked on in North Philly, I remember the woman answered the door and her record was that she was deceased. It's just that she had the same name as someone else in the same precinct or division in Philadelphia and her record was canceled, not the person with the same name. So it showed up as a false positive. There was that. There was where people would go to vote and someone else in the same place, usually mother and daughter or father and son with the same name. And they would sign in the other person's spot, not in their spot. So it was never a question of more votes.

46:43Richard Hasen: The voter roll book that the election worker would say sign here. That's right.

46:46Al Schmidt: So it would be Al Schmidt followed by Al Schmidt and they would sign where it had the one person, not the other. It wasn't a fraudulent vote or anything else like that. It was signing the poll book under the wrong person's name with the same name. And in the end, we ended up with zero out of that 10 to 12. It was kind of disappointing because I thought for sure that you heard so much about all this over all these years and you put in all that hard work. And I mean it was a relief knowing that you didn't have voter fraud going on. There was certainly something important to take from it all. But you end up in this search and in the end, everything that could be done was done and there was no evidence of it.

47:25Richard Hasen: I'm wondering if the experience of 2020 has affected people's willingness to serve on election boards and assist in elections.

47:34Al Schmidt: We track it at Department of State and we've certainly seen an increase in turnover when it comes to the people responsible for elections. And there are many reasons for it, right? Sometimes people are just ready to retire. For others, it's because of the environment, the way that it's been around elections. And also the requirements to be an election director have changed so much since I got involved in 2011 and 2012. So you have to be a lot more public-facing. You have to be better at communicating. We have never had so much interest in elections. People have a lot of questions. It's just incumbent upon us to provide them with truthful answers to their questions so that they're not deceived by people who lie for a living.

48:19Richard Hasen: Al Schmidt, I wish you a smooth and peaceful election day. Thank you for coming in and speaking with us. Thank you, Dave. Al Schmidt is Pennsylvania's Secretary of the Commonwealth, the state's chief election official. On tomorrow's show, actor Betty Gilpin. If you watched the series Widow's Bay, you saw her Emmy-winning performance as a woman in the 1700s who realizes her new husband may be at the center of a satanic curse. She now stars with Ethan Hawke in the new season of the FX show The Lowdown. She also starred as Mary Todd Lincoln in the Broadway play Oh, Mary. I hope you can join us. To keep up with what's on the show and get highlights of our interviews, follow us on Instagram at NPR Fresh Air.

49:01Richard Hasen: Fresh Air's executive producer is Sam Brigger. Our technical director at Engineers is Audrey Bentham. Our interviews and reviews are produced and edited by Phyllis Myers, Anne-Marie Baldonado, Lauren Krenzel, Teresa Madden, Monique Nazareth, Thea Chaloner, Susan Yacoundi, Anna Bauman, and Nico Gonzalez-Wisler. Our digital media producer is Molly C.V. Nesper. Roberta Shorrock directs the show. For Terry Gross and Tanya Mosley, I'm Dave Davies.

49:27Al Schmidt: Stay tuned for the following announcements and messages from our sponsors.

49:31Dave Davies: This message comes from Mint Mobile. This holiday season, unwrap a new wireless plan from Mint Mobile. Keep your current phone and your number and go to mintmobile.com slash switch.

49:42Al Schmidt: The number one issue in America right now is the economy, whether it's the high price of gas, a potential AI bubble or the unsteady job market. At NPR's The Indicator, we've got you covered. Understand the economy in 10 minutes or less each day. Listen to The Indicator from Planet Money on the NPR app or wherever you listen to podcasts.