How Worried Should We Be About the Midterm Elections?

19:06Richard Pildes:Well, short answer, no. But I thought you might say that. But let me respond to some of the specifics, because I do like to be kind of, you know, nuanced and precise about this. So it's true that when we have seen problems with voter fraud, it has been overwhelmingly in the absentee process rather than in-person voting. And that's because, you know, if you're going to try to commit fraud, it doesn't really make sense as a practical matter to try to do it, you know, one by one with voters going in and pretending to be somebody else in the polls. That just doesn't happen. We have had some incidents of absentee ballot fraud.

19:46Richard Pildes:So there was a mayor's election in Miami in the 90s where there was like really significant absentee ballot fraud that led the courts to actually throw out all the absentee ballots. But I do want to put that in context. The amount of absentee ballot fraud that we've seen is fairly small in the overall context of things. It's just that when we've had problems, It's tended to be in the absentee process, not the in-person voting process. So I don't want to create the image that, you know, there's massive absentee ballot fraud just to say that when there's been risk, it's been more through that route.

20:22Richard Pildes:Now, I do believe and I've said that, you know, voters have more problems with the absentee process than they do with the in-person voting process because you have to do more things correctly when you cast an absentee ballot. Depends on the state you're in. But, you know, in some states, you have to put your ballot in an envelope, secrecy sleeve, it's called, and then put that in another envelope. Then you have to properly date or sign. Or in some states, you have to get a witness to your signature, you know, for the absentee ballot envelope. You have to get it back on time. And so there's a not trivial rejection rate of absentee ballots.

21:00Richard Pildes:Then on top of it, because the president has attacked the absentee ballot process, I think it's more likely to be a source of efforts to create controversy about the voting process. So if people vote in person and now people have much greater opportunities to vote in person because there's significant early voting in most states, you sort of bypass all of that process. Now, again, I want to be clear, I don't think there's anything wrong with absentee voting. I just think it's more prone to mistakes by voters and it's more prone to be a focal point of efforts to disrupt the process. Now, I do think something else that you alluded to, and this is something I wrote about in March of 2020 when it was apparent we were going to have massive absentee voting in the fall.

21:52Richard Pildes:I do think in a world in which we have so much distrust and suspicion about the voting process now, I think it becomes particularly important for states to be able to get to an accurate count as quickly as possible. And I think that when there's significant delay in being able to provide voters a final accurate account, it's predictable that that's going to be a source of suspicion and mistrust and conspiracy theories will focus on that. I call it the sea of pervasive distrust that our elections take place in right now, unfortunately, even when that distrust is not actually justified.

22:35Sarah Isgur:But if it could all be done orderly and competently, is Donald Trump's idea about the Postal Service having these uniform envelopes with barcodes, having a database so that we know that every absentee voter has received their ballot, turned in their ballot, that it's this matched system? Is that such a bad idea?

22:55Richard Pildes:Well, so there are certain things that the Postal Service wants to do that I think makes sense. I mean, marking ballot envelopes as election material is important because it enables the Postal Service to give priority to those ballots. Lots of states do that part already. It's also the case that lots of states already put an individual identifying barcode on the absentee ballots so that they can be tracked. And many states now allow you to actually follow your absentee ballot online to make sure it's, you know, it's been counted.

23:30Sarah Isgur:Like the Domino's pizza tracker.

23:32Richard Pildes:Yeah, it's nice if we can get our election system up to the level of some of these things that the private sector does. And actually, there's been a lot of effort on that front. But the problem that you have to confront when we're dealing with things like, you know, should there be a national database and the like, we don't have a national ID card in the United States that identifies you and indicates whether you're a citizen or not. Many democratic countries do have that. And so many of these democratic countries may impose various kind of ID requirements to vote, but it's not a big deal because everybody actually has a national ID card.

24:15Richard Pildes:So when it comes to things like the SAVE Act that the president has been trying to get Congress to enact, which would require proof of citizenship when you register to vote, you know, in principle, there's or in the abstract, there's nothing wrong with that idea. The practical problem in the United States, because we don't have anything like a national ID card, is that lots and lots of citizens are not going to have easy access to the documents you would need to prove citizenship. So, you know, what can you use under the legislation that the Republicans have proposed? Well, you can use a passport, but only about 50 percent of Americans have a passport.

24:56Richard Pildes:You can't really use a driver's license, even though a lot of people think you can, because in most states, a driver's license, even a real ID doesn't specify whether you're a citizen. There are about five states in which it does. So if you don't have a passport and you can't use a driver's license now, OK, now you're talking about needing to show up with your birth certificate to register to vote. And, you know, how many people have ready access to their birth certificates? What if you've moved a lot? What if you're older? And then on top of that, if you've changed your name since you were born, which, you know, many married women have, for example, then you'll have to bring a marriage certificate along with your birth certificate.

25:37Richard Pildes:And so just as a practical matter, there are lots of citizens who are eligible to vote who aren't going to have ready access to the kinds of documents you need to prove your citizenship. That's why these practical barriers can become real obstacles to people who are legitimate voters, who are eligible, who are citizens. And that's why that's so controversial.

26:01Sarah Isgur:And just to give some context, you're talking about the SAVE Act. It would require people to show an ID and proof of citizenship when they show up to vote. This is a huge fight inside the GOP. Donald Trump has said it's his number one priority and it would guarantee the election for the Republicans. But isn't this also becoming more normal? I mean, I looked into this because Arizona's voting law that they passed in 2022 is up at the Supreme Court this term on legal questions related to whether federal law preempts Arizona's law. But it's interesting because basically Arizona has said that in order to vote the full ballot in state and local elections, you have to have proof of citizenship.

26:42Sarah Isgur:If you don't want to have proof of citizenship, you can check a box and swear under penalty of perjury that you're a citizen and vote federal only in only the federal races. So we have this little experiment, you know, our de Tocqueville laboratories running in one of these states. So I looked this all up and Arizona has 4.3 million Arizonans registered, only 42 ,000 people, less than 1 % registered as federal only voters who couldn't find proof of their citizenship. So maybe this isn't really the big problem that we all think it is. And maybe the answer is just, well, we need to roll out a real ID with citizenship and then both sides could be satisfied, right, that it would allow access and it would allow security.

27:32Sarah Isgur:I mean, once again, if we turn our hymnals to the Carter Baker Commission, they pointed out this as a problem in a California congressional race where it was very close and contested, and they found 784 people who had been ineligible to vote in that very close race. So we've known this has been a problem for a while. Why not just fix it?

27:52Richard Pildes:Well, the issue is, so actually, let's say a couple of things to make sure people understand the context. So you mentioned the fact that when you register to vote on the federal voter form, you have to check a box saying that you're a citizen, you're eligible, the age you stayed is accurate and all that. And it's a crime to lie on that form. And it's a crime as a non-citizen to vote. So that's kind of where we already are. Now, Arizona is a great example because, as you say, they require proof of citizenship for state and local elections. So they have, as you mentioned, about 42 ,000 people who are eligible to vote in the federal elections and are on the rolls for federal elections, but have not provided the citizenship documents so they can't vote in state and local elections.

28:43Richard Pildes:Now, that's a lot of people, actually. Assuming those people actually are citizens, and my strong assumption would be overwhelmingly they are, maybe all of them, actually, but they don't have access to the documents to prove their citizenship. Maybe they're not as interested in the state and local races, so they're not making the effort, you know, that would be required to get the relevant documents. But so on one side of the ledger, you have 40 some thousand people who I'm assuming are eligible to vote in those state and local elections who can't do it. They're disenfranchised because they aren't on the state list.

29:25Richard Pildes:Now, you weigh that against what is the actual level of non-citizen voting that is out there. There have been lots of efforts to examine this, especially the federal government under President Trump's administration has made a huge effort to uncover non-citizen voting. And they really haven't. There is some that goes on. I don't want to say it never goes on. But they haven't been able to uncover a significant level of that. And just as a concrete example, the federal government has been trying to create this database called the SAVE database of citizens. And states can submit their voter lists to the Department of Homeland Security and have it check.

30:07Richard Pildes:So Texas has sent in recently something like 18 million voters to this list. And after the federal government has gone through its process of checking, Texas has referred 117 people out of 18 million to the state attorney general for possible non-citizen voting. That has to be investigated. And I would imagine, based on what's happened in the past, some of those cases are going to collapse when they're looked into more deeply. So how do you weigh the benefit of making sure whatever number of those are ineligible against, let's say, 42 ,000 people in Arizona, which is a much smaller state, who may be disenfranchised by these requirements?

30:54Richard Pildes:And, you know, part of what is interesting about the context here is in the United States, we've always had the civil libertarian culture on both the right and the left that has kind of joined forces to prevent the federal government from creating some kind of national ID card. So after 9-11, I thought we actually might end up getting some form of national ID card, and there was an effort to do that. But the Civil Libertarian Coalition on the right and the left successfully fought that off. And so that's why we are where we are with this issue.

31:30Sarah Isgur:Now we just have flock cameras instead of national ID cards.

31:34Richard Pildes:Yeah, well, surveillance technology has certainly been enhanced in recent years. That's for sure. While in New York City, we have plenty of cameras I've gotten. Well, maybe I shouldn't say, but they're very... How many speeding tickets you've gotten? Let's say it's not zero.

31:51Sarah Isgur:I mentioned that Arizona case was going to the Supreme Court, and maybe this is a bit of a side point, but we have all of this election litigation that's coming closer and closer to elections. I don't think 2026 is going to be different. I don't think this is the last time the Supreme Court's going to have to weigh in on these midterm elections. And it just feels like, you know, we have Donald Trump's statements attacking the Supreme Court, attacking his nominees to the Supreme Court, specifically, you know, every time he loses these cases, whether it's birthright citizenship or tariffs or this latest mail-in ballot executive order.

32:24Sarah Isgur:And we've seen it in polls. Republicans then lose trust in the Supreme Court and think they are more partisan and, you know, less of an institution that should be preserved. Of course, then when the Supreme Court allows Donald Trump to fire someone from the Federal Trade Commission or, you know, impose his immigration policies or strike down Biden's student loan debt forgiveness or eviction moratorium, Democrats lose trust in the Supreme Court and don't think it's an institution to be preserved. But we need someone to rule on these questions before elections, even though it's going to feel very partisan.

33:00Sarah Isgur:Just what's the answer if you're advising the Supreme Court on what they're supposed to do? Yeah.

33:07Richard Pildes:So I think that it's not surprising that in a culture that has become so tribalistic, so toxic, so hyperpolarized, that decisions of all public institutions, including the court, are going to be filtered by many people through a partisan lens. And then on top of it, we've also moved into a world in which the commentary or much of the commentary on the Supreme Court, and I'll leave you aside for this purpose, much of the most prominent commentators on the Supreme Court are also themselves very, very polarized in the way they respond to court decisions, whether it's on the right or the left. And that's how most people get their information about the court.

33:50Richard Pildes:Obviously, most people aren't going to be reading opinions. I think the best the court can do on that is to the extent it can render decisions with substantial majorities or even getting closer to unanimity. I think that helps the credibility of the court. I think to the extent the court can handle these issues in a kind of consistent and principled way, that also helps the court's credibility. But I do think it's almost inevitable in this culture that court decisions, especially divided ones, are going to be processed through these more polarized and more partisan filters.

34:28Sarah Isgur:I mean, it is sort of remarkable that, you know, there are six Republican nominees on this Supreme Court and the majority of Americans view the court as being a conservative or an extremely conservative court. And yet Donald Trump has tried all sorts of stuff to change voting in the United States. He has failed in every respect. I mean, is there any win that Donald Trump has had on any of this?

34:59Richard Pildes:Yeah, so this is an important storyline that I think hasn't been absorbed at this point. But if you look at the various efforts, executive orders, federal administrative agency actions that Donald Trump has taken or encouraged, pretty much none of them have actually turned out to – they've been blocked. So he tried to get Congress to enact the SAVE Act, as we talked about. Congress has not been willing to do that. The Supreme Court rejected the administration's efforts to get the court to read the federal election statute to prohibit states from counting ballots that come in after Election Day, all of which have to be postmarked by Election Day.

35:42Richard Pildes:But they in some states they can come in after Election Day. The administration was trying to get the court to say federal law prohibited that. They lost on that. The courts have blocked the key aspects of the president's two major executive orders. on the election process. As we just talked about, the Supreme Court has blocked the Postal Service rule that the Postal Service is trying to implement for this fall. The Department of Justice has been trying to get voter rolls from states. They've lost 23 to 0 and 1 to 0 in the federal courts of appeals. So, you know, at almost every turn, the administration's efforts to change voting policy or to demand voter rolls from the states have failed.

36:30Richard Pildes:The Supreme Court has signaled pretty clearly at this point that it's not going to be receptive to late in the day changes in the process. I think the court is right about that, because I think one of the things we want out of the election process, as the Supreme Court itself has said, Justice Kavanaugh has said this, I think, most forcefully in several opinions now. You know, we want the rules to be clear. We want them to be settled in advance. We don't want last minute changes, whether it comes from the federal government, the states or the courts in the election process. And so if the administration tries yet further changes at the kind of midnight hour, I don't think the Supreme Court is going to be receptive to that.

37:13Richard Pildes:We'll see if they try further changes. So I think that's actually a significant part of the story that the public hasn't really absorbed because they read about all of these changes going on and all of this litigation. But the overall picture that's now emerging is that pretty much all of these efforts to change voting policy coming out of the federal government have been blocked.

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39:25Sarah Isgur:Okay, so Donald Trump is out there saying that Democrats are trying to rig the midterm elections and steal the vote. Joe Biden has called election changes by states Jim Crow 2.0, even though Georgia had 17 days of early voting, including Saturdays versus Delaware, his state that only had 10. Hakeem Jeffries has said that Donald Trump is trying to steal the midterm elections. It feels like both sides are trying to tell their voters, do not have trust in the outcome here if we lose. Do we need electoral reform or do we need political reform?

40:05Richard Pildes:So you're definitely right that both sides have raised the anxiety level, not just in this election, but in some of the more recent elections about what might be going on. There's complete distrust of the motives of people on each side so that any proposed change the other side views as motivated by advantage-seeking. And there has been plenty of advantage seeking, right? We shouldn't ignore that. I mean, this mid-decade redistricting cycle that was initiated by President Trump pushing Texas to engage in mid-decade redistricting that then set off a whole chain of mid-decade redistrictings, I think is very bad for Americans' confidence in the integrity of the process, the legitimacy of the process.

40:54Richard Pildes:I mean, I think partisan gerrymandering in general does that. And I have been fighting unsuccessfully, including the Supreme Court, trying to get constraints on partisan gerrymandering. But this mid-decade redistricting, I think, has raised the suspicion and the lack of confidence of voters in the process even more because it's so obvious that politicians are trying to manipulate the process for their own partisan self-interest. So I do think some election reform could help mitigate that distrust, including reforms about or constraints or elimination to the extent possible of partisan gerrymandering.

41:33Richard Pildes:And there are other changes to the election process that, you know, I would favor that I think could help, including, by the way, we need a lot more federal funding for state and local election operations because that's a major way of ensuring confidence in the process, that the process will be well run. I mean, these states and localities are very strapped in the resources they have for the election process. But I think that the political culture is now so toxic about these issues. And because we have this existential politics, as I said, where many people believe the country will never be the same if the other side wins and because election partisan control is so close.

42:19Richard Pildes:I think many people believe every little micro issue about the voting process itself becomes existential because, oh, my gosh, it could have a huge effect on the outcome of the election. And then you have lots of commentary about all the horrors of what might happen in the election process. I actually, you know, I don't know if I should say this, but I actually call this there's a sort of a genre of election pornography, as I call it, where people write these articles saying, look at this disgusting thing. Look at this terrible thing that's going on. Look at this awful thing that might happen.

42:52Richard Pildes:And it generates lots of clicks and attention, as pornography tends to do. But a lot of that can be exaggerated or overinflated. You know, we saw a lot of that going into the 2024 election. The process worked pretty smoothly. I expect that will be the case in the fall, despite all of the anxiety about it. There are real things to be concerned about. I don't want to underplay, but I think we need to put those in context. And I think there's a certain amount of exaggeration that goes on from each side about what might happen in the process.

43:30Sarah Isgur:What are the best actual proposed reforms to fix partisan gerrymandering and are they politically feasible?

43:38Richard Pildes:So Congress, in theory, has the power to put constraints on partisan gerrymandering for congressional districts. I don't know if there's any. It's unlikely that that will happen. It probably wouldn't be a product of bipartisan consensus.

43:54Sarah Isgur:because members of Congress don't want more competitive districts.

43:58Richard Pildes:Well, they don't want more competitive districts for sure. Everyone would love to be in a seat that, as one of my witnesses said, an expert witness has said in a case I litigated, everyone wants to be 99.999 % sure that they're safe. Maybe with unified government, the Democrats did try to push something through to limit partisan gerrymandering when they had unified control, but they didn't get through the filibuster. It's possible that could be revived if there's unified democratic control after 2028 elections. But short of that, reform has to be at the state level. That can take the form of actually voters putting constraints in their constitutions on partisan gerrymandering, which has been done in some states.

44:45Richard Pildes:It can also...

44:46Sarah Isgur:problem we saw with that was Virginia voters did do that. And then as soon as there was an advantage to be had by getting rid of it, they get rid of it to do partisan jury. Yeah. And that's that's

44:55Richard Pildes:the problem that once there's what we really need is a uniform national solution to this that could either come from the Supreme Court. But the court has now closed the door on that possibility in a five to four decision that that's a case I represented common cause in and was part of the four or on the side of the losing four, or it could come through Congress. And we talked about, you know, the remote possibilities of that. If you can't get a nationally uniformed solution, then we're exactly in the situation you described, which is there may be states that want to impose these constraints, but if they're kind of unilaterally disarming, it becomes an unstable equilibrium.

45:34Richard Pildes:And so that's been unraveling some, you know, even states that had adopted independent commissions or had banned partisan gerrymandering like California. Once red states started doing this, then blue states said, well, you know, we can't really hold the line with our independent processes. So it's very difficult at the state level for that reason. That's why we do need a uniform national solution. But, you know, don't see great prospects for that in the immediate term.

46:02Sarah Isgur:Are there things you're concerned about before November 3rd? Can the midterms be stolen?

46:08Richard Pildes:Stolen is a I think that's a really extreme way of talking about it. Can there be disruptions of the process? Can there be doubts cast on the process? I mean, you know, there are things I'm concerned about. I'm not I don't know that any of them are actually going to happen. You know, their concerns about whether we might have ICE or FBI agents at polling locations. The heads of DHS and the FBI have been asked that question, and they have refused to put to rest the possibility that they might send in ICE or FBI agents to the polls. I don't think at the end of the day it's going to be a huge issue, partly because it's already illegal under federal law to do that, and I assume the courts would step in and do something about it.

46:55Richard Pildes:I think there's some basis for concern that the administration might try to declare there's some kind of fraud going on in some cities, even trying to send in DOJ or FBI officials to seize ballots or voting machines. President Trump apparently after 2020 was sort of pushing to do that, and Attorney General Bill Barr refused to let that happen because he said there was no basis for the allegations. There's concern that people like Bill Barr, whatever you think of him, he did stand up to the president and say no about that. That figures like that are no longer in the positions that comparable figures were in 2020.

47:41Richard Pildes:And, you know, people worry about whether they'll be at the local or state level officials who refuse to certify outcomes based on their own suspicions that there's some kind of nefarious fraud going on. I think the courts will take care of that issue if that arises. So, I mean, I don't want to say there's nothing to be concerned about, but one thing we're now being able to say with more confidence is a lot of these efforts by the administration to make formal legal changes and access to the ballot box and how people vote are not going to go into effect for 2026. And so all the hue and cry about a lot of those issues now can kind of be put to the side because that has gotten settled through the courts.

48:30Sarah Isgur:Rick Pildes, thank you for joining us.

48:32Richard Pildes:I'm very happy to talk to you, Sarah. Thanks for having me.

49:17Sarah Isgur:I'll see you next time. Find a welcoming place to learn, listen, and be inspired. Listen to new episodes Mondays through Fridays at 7 p.m. on 98.7 FM, wfmt.com, and the WFMT app.