The Midterms Are Over: What’s Next?

Colleen and Mike discuss:

• the outcome of the midterm elections
• the challenges to election integrity in the run-up to the 2024 presidential election
• the state of democracy in the US

Opener (0:00-0:20)
Intro (0:20-1:36)
Interview p1 (1:36-11:35)
Break (11:35-12:12)
Interview p2 (12:12-28:06)
Outro (28:06-29:00)

Editing: Colleen MacDonald
Additional editing and music: Brian Middleton
Research and writing: Pamela Worth
Executive producer: Rich Hayes
Host: Colleen MacDonald

• What Now? Reflections on Post-Election Democracy in America
• Will We Let the US Supreme Court Further Dismantle Democracy in the Moore v Harper case?
• How Election Science (and Halloween Costumes) Can Protect Democracy

Colleen: With the re-election of Senator Raphael Warnock of Georgia last week, I think we can safely say that the midterm elections are over. It’s been more than a month since Election Day, and I don’t think I’ve fully processed yet just how nervous I was that our democracy wouldn’t hold up… that voters and poll volunteers would be threatened by armed vigilantes… that baseless claims of voter fraud would tie up the results in endless court cases… or that we’d see another January 6th-style armed invasion somewhere in the U.S.

I also don’t think I’ve given myself the chance to breathe a giant sigh of relief that none of this happened.

Whew!

Instead of hoping and holding our breath that the next election will be just as democratic… my colleague Dr. Michael Latner, a senior fellow with Union of concerned Scientists, has a few ideas about how we can protect our democracy now and in the future. He joined me to talk about why the 2022 midterms went so smoothly, despite our worst fears, and the one piece of legislation you can call on your elected officials to support right now to preserve election integrity for years to come.

Colleen: Mike, welcome back to the podcast.

Mike: Thanks so much for having me.

Colleen: Well, you know, we got through the midterms, and I'm looking forward to this debrief with you. So, first, on a scale of 1 to 5, with 1 being abysmal and 5 being near perfect, how would you rate the midterm election?

Mike: Well, I must say I'm a lot less terrified about the future of American democracy than I was before the election, which is a good thing. I would say it's probably something like a 4 out of 5. The election went off without any major procedural hitches. There weren't any systemic, you know, problems with voting systems or with accounts, and there weren’t, at least as of yet, have not been any major serious challenges to the integrity of the vote. I mean, there were, problems here and there in certain counties with ballots running short or they're being less paper or some printing problems, but those are part of every normal election. So, I'd say that, overall, we should be very happy with the results in terms of the outcome.

So, at the time of this recording, there are still states and counties counting ballots, because you have a number of states that have a large number of mail ballots, like my home state of California. Hopefully, we'll have those results in shortly. But it takes a long time, and that's something that we should be paying more attention to. I'm less happy about that. And I think there are remedies that we can employ to reduce the time that it takes to certify the election results. But, overall, I'd say that this election showed a high amount of integrity.

Colleen: So Mike, when we talked last year on the podcast about what you and your colleagues were most concerned about in the lead-up to the midterms, I remember we talked about redistricting and gerrymandering. So, how did that play out, and what do you see as the challenges moving forward?

Mike: Well, that's a great question. The extent of gerrymandering that we saw moving into the election cycle was substantial. And we certainly saw the consequences of that gerrymandering in a number of states, specifically Florida, Louisiana, Mississippi, Alabama, Ohio. Those gerrymanders that were put into place by the state legislatures performed as expected. The Republican Party in Florida and Ohio and a number of other states were able to pull out one or two or three extra Congressional seats that they probably would not have won had the boundaries been fair and unbiased. That said, there are also effects of the winner-take-all process, that is the fact that we use single-seat districts. And that offset the effect of the gerrymanders nationwide.

And so if you look at just the national results, they're fairly proportional. In fact, the Republican Party received just a bare majority of the nationwide Congressional vote, and they received just a little bit lower of a percentage of seats, that is as a percentage of the 435 seats of Congress than they would under a perfectly proportional plan. And the reason for that is, again, in states like California, the Republican Party received about 38% or so of the statewide Congressional vote, but they're only getting about 20% or 25% of the Congressional seats in the California delegation. But that's not a result of gerrymandering. That's just a result of the fact that in any single-seat system, the largest party tends to receive what's called a seat bonus because of the winner-take-all nature and the fact that only one party can win in a single-seat district.

Colleen: So, what are some of the challenges that still exist?

Mike: Well, there are a number of challenges moving forward, in addition to the time that it takes to actually count and process ballots that I mentioned earlier. Gerrymandering is still a problem. Indeed it could become even more of a problem. the Supreme Court of the United States just hearing a case out of North Carolina called Moore v. Harper. And in that case, the North Carolina state legislature is making an innovative and extreme argument given that the gerrymandering in North Carolina has been ruled unconstitutional several times by the state Supreme Court. Litigants in this case are proposing essentially a new theory of legislative autonomy, known as the Independent State Legislature theory. And they're actually making the argument to the Supreme Court that legislative and political bodies, including the state Supreme Courts across states don’t have the authority over what state legislatures can do with regard to regulating Congressional elections.

Colleen: So what does that mean more specifically?

What they're essentially saying is that it doesn't matter what the state Supreme Court says and that the legislature should not be restrained because elections are federal and the Constitution says that the quote legislatures of the states can regulate the time, manner, and place of elections. Now this is a new and quite extreme constitutional theory that comes out of the work of the Federalist Society and other conservative legal organizations. And if the Supreme Court were to look favorably upon this theory, and we already know that there are several justices, Thomas, Alito, Gorsuch, to name a few, , who have indicated in previous writings, in oral arguments that they might be open to this line of reasoning. It would place our elections in grave danger in that it would really prohibit any restraints on state legislatures from maximizing their partisan advantage in both Republican and Democratic states.

There would really be no way to affect legislation that affects how our votes are counted, and whether elections are free and fair with regard to how boundaries are drawn, though the plaintiffs in the case are arguing that citizen initiatives might still be a way to address gerrymandering, as are governor's vetoes But either way, this is a radical political move, and the legal community, both conservatives and progressives are following this case very closely.

Colleen: So then Mike, what happened at the hearing?

Mike: Well, you know, it’s always reading tea leaves to try to interpret what the Supreme Court is going to do during after hearing an oral argument. I would say though that there are pretty clearly three camps in that justices Jackson, Kagan, and Sosmyor were very critical of the theory. They laid out the historical context of the Supreme Court’s own precedent in terms of interpreting that section of the constitution of the elections clauses meaning legislatures, all the law-making bodies and states, so that would include the state supreme courts and governors and so forth. Ten there are, as I said earlier, I think Alito, Justice Thomas, Justice Gorsuch, they seem more open to this radical theory that they really want to restrict state superme courts over legislatures. And then the other justices, Chief Justice Roberts, Justice Barrett, and Justice Kavanaugh seem to be looking for kind of a middle ground and it looks like they’re not going to acknowledge the sort of expansive version of this theory that would really undermine judicial autonomy in the states. But they are looking to restrict what the courts can do relative to regulating federal elections the way that, or the autonomy of state legislatures capacity to regulate federal elections. And so, after listening to them bicker about James Madison thoughts on the constitution and the English Bill of Rights. I mean it was over three hours of argument. And what I came away with feeling a little bit more optimistic that at least the chief justice and justices Barrett and Kavanaugh weren’t falling for this radical sort of theory. So I think we’re going to find some middle ground but it’s unlikely I think that we’ll see the majority of the court endorse this radical theory.

Colleen: And then, what is the next step in this process?

Mike: Well, the decision won’t come down until spring or summer. With regard to those of us that are paying attention and concerned about both the integrity of elections and the legitimacy of constitutional restraints. We’ve got to be prepared to react. And we should be putting pressure on their legislatures on their members of Congress to codify the election clause and assert, I mean one thing that would make this problem basically go away is if Congress would act. And actually provide national election standards because Congress clearly has the authority to do this and that would really make this problem literally go away.

Colleen: You know the other thing that we talked about last year was this notion of a resilient election ecosystem. I mean, how would you rate the election process in the midterms from voting to counting and certifying votes?

Mike: Yeah, and this really gets back to the earlier point of processing the ballots. And, you know, along those lines, I would say that for the vast, vast majority of election results across states, the process worked fairly smoothly, even though we had a number of very close Senate races and Governors races across the states. Most of the results of the election were known by the end of election night. And some of the results took a few more days, or even a week or so before they were officially called. However, that's a normal part of the electoral process when you have a fairly closely divided country. I would say that there is still much work to be done. The Union of Concerned Scientists and a number of colleagues and partners that we've been working with have been working to increase the transparency of the electoral process, that is using election data and the availability of public data to make the process more transparent.

We piloted a few programs where we were closely watching election results in big cities, in battleground states, which is where we were looking for potential problems, if there were, attacks on voting precincts, or there were attempts to challenge or throw out ballots. We knew that those were gonna be the places where we would see that sort of activity. And, frankly, again, the results came up pretty clear. There wasn't anything like this sort of organized challenging that we expected to see. So, the process went pretty smoothly.

Now, that said, there's still a lot of work to be done, as I said. We can do a lot better job in making the results transparent. And what I mean by that, specifically, is that we have public records, so we know from voter registration lists how many potential voters there are, we know how many ballots are being printed by counties, how many ballots are being sent out, and which are going to precincts. We also have data that shows, you know, how the ballots get returned, where they are at any point in time, who has the chain of custody in terms of whether a ballot's been delivered at a home or the U.S. Postal Service has the ballot, or the ballot's been returned to the county clerk or registrar. All that is available data. It's just been difficult for counties to actually process it and make it publicly available.

And we think that this is a really important part of improving electoral integrity because if you know how many ballots are out, and how many have been brought in, how many have been processed, how many have been rejected, why they've been rejected, that entire process should be more open because that way there are no surprises. We know approximately how many ballots there are and where they're at, and that prevents bad actors from inserting uncertainty and inserting doubt into the election results if that data is readily available. Because it's really under the conditions that we see in, the night of the election or in the few days after as ballots are being processed where you have actors, like the gubernatorial candidate in Arizona, for example, who has still not conceded the election, at least as of this recording, and has used that uncertainty about the total number of ballots and where they are to introduce doubt into the results and to claim that the election is being rigged or is being stolen somehow. And so we wanna be able to do away with that as much as possible.

Colleen: Well, you know, I was actually really surprised that the election went as smoothly, or the aftermath went as smoothly as it did without any major disinformation and, you know, cries of voter fraud. You live and breathe this stuff. I mean, I'm sure that surprised you, too, and I'm imagining as we're looking toward the presidential election that... I guess I just wonder if the midterms didn't feel as high stakes or something, or why there wasn't more of that discord.

Mike: I think we can point to a couple of factors. The first one and most important one being that election-denier candidates, especially those running for offices responsible for elections, like Secretary of State and even down at the local level, those candidates did especially poorly. That is that they got crushed. In every major statewide Secretary of State election where there was an election denier running, they lost.. So, there's that. And that's really one of the most reassuring results, I think, of the election, overall, is to see that these candidates did very poorly, generally speaking. That said, even though, again, as we've discussed, the process went pretty smoothly, there weren't any major disruptions, as of this recording, not all the election results have been processed.

And indeed, there are several counties, Cochise County in Arizona, there's a county in Pennsylvania that I was reading about yesterday where they have refused to certify the results, and they're attempting... These are fairly conservative mostly rural counties, and election deniers have a greater influence in those counties. And so it's not that we're not seeing any problems but they aren't nearly at the magnitude that we could have seen in Maricopa County in Arizona and other big counties, Harris County in Texas. We haven't seen those sorts of threats arise in those counties, so we should feel pretty good about that.

Colleen: Right, right. So, what were you, and by you, I mean, social scientists and analysts, what were you looking at to gauge how free and fair this election was?

Mike: That's a great question. We actually, at UCS had identified a number of target cities that is major cities in battleground states, cities like Atlanta and Philadelphia, Milwaukee, Cleveland, Detroit, where the evidence that we had prior to the election suggested that these were going to be targeted areas for groups like Cleta Mitchell's organization and other Trump-linked organizations where there was going to be a concerted effort to challenge ballots and try to get ballots thrown out. These are heavily Democratic counties in the swing states, and so the effect there would be magnified in terms of affecting the outcome of statewide elections.

And what we saw in the days leading up to the election and on election day and after is that we did not see that sort of ballot challenging mobilization take place. And I think that that is, in part, due to the work of UCS and other organizations being very vocal and very clear about the potential for this sort of damage to happen on and after election day. And that that really had an effect on the organizing capacity of these groups. And the county election clerks and registrars were prepared. The emergency management work had been done, procedural work had been done, and motions were put into place. Law enforcement was involved in protecting the integrity of the elections in these places.

And again, we did see challenges and some voter intimidation on a sporadic basis. There was certainly a fairly high amount of disinformation out there in terms of voters of color, in particular, being contacted and given disinformation about how to vote, or where to vote, or when to vote, but at the end of the day, those efforts were not as organized. And we were able to monitor the situation and respond where we saw disinformation emerging, and I think that that contributed to the integrity of the overall election.

Colleen: What are your top priority areas leading up to the presidential election? What are you gonna be focusing on?

Mike: Yeah, that's a really good question. And certainly, 2022, you know, by all, I think, you know, everyone, both election deniers and those focusing on and protecting the integrity of our elections see 2022 as a sort of run up to 2024, right? Because turnout's gonna be much higher, you've got a presidential election on the ballot. And so it's one of the reasons why we were paying so much attention to this midterm election was to be able to assess the quality and integrity and our capacity to ensure free and fair elections in 2024 when the stakes are going to be much higher.

And the number one thing that I'm looking at right now is in this lame duck session for Congress. You have a new Congress coming in. The Republican Party is going to have a slim majority and control of the House of Representatives, Democrats will hold onto the Senate, and so you're going to have divided government.

The one bill, the one piece of legislation that is absolutely necessary to put into place prior to the 2024 election is a revision of the Electoral Count Act. And the Electoral Count Act, the revised version, which there are versions of in both chambers now, would provide national election standards, it would clarify the role of the Vice President in certifying the results of the electoral college, it would place explicit limits on the capacity of state legislatures to call an election as failed or to cast their own electors despite what the election results say for President of the United States. And it is really a fail-safe effort to prevent a lot of the things that happened in 2020 from happening again. And that piece of legislation is still sitting in Congress. It's not going to go anywhere after January because the GOP is not going to be entertaining any sorts of electoral reforms. And so it is absolutely essential that Congress pass that revised Electoral Count Act before the end of the year.

Colleen: So, how do we make that happen?

Mike: We call our members of Congress and we raise hell. The votes appear to be there. The likely outcome will be that it would be attached as part of the larger reconciliation bill that is passed at the end of every year. And it's a really big bill with a lot of stuff in it. And so it probably won't pass or get a vote on its own, but it'll be included with this other legislation. However, while we are hearing from the Democratic leadership that that's going to be part of the process, I certainly have not seen much movement on it over the last month, and certainly, after the election was held. And it is the single most important thing that Congress needs to do before the leadership changes hands. And so people need to contact their members of Congress, contact their senators, and we really need to put public pressure on the leadership of the Democratic Party so that they understand what a priority this is.

Colleen: And, Mike, I can't remember if you said this, but the Electoral Count Act, there's bipartisan support. Is that correct?

Mike: There is. Even Senate Minority Leader, Mitch McConnell, has given his blessing to getting the act through. We know that there are at least 10 Republicans in the Senate that would support the act. Obviously, there's enough support in the Democratic-controlled House of Representatives. And so the real question is just ensuring that the process happens and getting it into that reconciliation bill and making sure that we have those protections in place prior to the 2024 election.

Colleen: Are there other things that you'll be looking at?

Mike: Oh, gosh. We're always looking at other things. You know, I mean, we've talked about the Electoral Count Act, we've talked about gerrymandering. There are a lot of other legislative and litigative efforts that we'll be undertaking to protect the integrity of our democracy prior to the 2024 election. But all of those procedural changes are kind of, like, scaffolding in that they provide the basic structure of how elections are conducted, and that's really important. But ultimately, we have got to improve the participation of voters and the organizational capacity of parties if we really wanna truly improve democracy from the ground up. And so a lot of our efforts over the next two years are gonna be working on building greater organizational capacity because ultimately, the defense of democracy rests on the activities of average everyday citizens. And we've gotta get more people engaged, we have to give people more reason to turn out.

I mean, we often think about voting as a demand-side problem, that is we just need to make it easy to vote and open up the process. But a lot of people in the United States don't vote, not because they perceive that there are structural barriers, although those barriers are quite real, but because they don't feel like they have a place in the process. And, frankly, they don't. They've been left behind by both of the major parties. When we look at the turnout data, for example, in Cleveland and in these cities that we were monitoring for the 2022 election, the disparities in turnout are still shocking. We have some precincts where you've got 80%, 90% turnout, and some precincts where turnout is 15%, 20%. That sort of inequality is just not compatible with a strong democracy.

And so we've gotta do more, not just to make it easier to vote and to ensure that every vote is counted, that is certainly an essential part of the process, but to increase the supply of candidates and increase the level of political competition to give people a reason to turn out so that they know that their vote is actually effective and making a difference. And so we're doing a lot of work on the organizational front to try to strengthen local community organizations and to strengthen the links between communities that are often left behind in the electoral process, and a robust organizational process that would give everyone a voice in politics. And that means giving people better representation. That means more candidates, better candidates, candidates that reflect the people and the needs of communities that are often left behind. So, that's a major part of our work leading up to 2024.

Colleen: Well, Mike,. I'm curious how you're feeling after the midterm election about the state of democracy in the U.S.

Mike: Oh, gosh, that's a tough question. Ultimately, I'm an optimist, or else I wouldn't be engaged in this sort of work. You need a lot of hope and integrity yourself to keep pushing these stones. But I will say that the electoral system held pretty well. I feel a lot better about the strength and capacity of the anti-democratic election denial movement. They had a big defeat in 2022. And that was really important. The American people spoke, and that movement was damaged. And that's good. That said, there is still a tremendous amount of work to do. And American democracy is still in a very precarious position. We have not seen this sort of fascist, right-wing populist movement gain as much strength as it has, certainly in my life and in many generations, and that is a direct threat to the electoral process and democracy in this country as we know it.

So, there's still a tremendous amount of work to be done, but again that involves using all the tools in the toolbox. We need to legislate and make sure that voters' rights are protected where we can, we need to litigate where we have an opportunity to work through the courts to ensure and protect voting rights, and we need to organize. Ultimately, I think that reclaiming our democracy and improving our democracy, which hasn't been so great, to begin with. There are a lot of anti-democratic elements in the U.S. Constitution, and ultimately, the only way that we change those is through organizing and by empowering people to be part of the process.

Colleen: Well, I couldn't agree more. This is not the time to become complacent. Mike, thanks so much for joining me. This has been a great conversation. And I, you know, look forward to getting you back on the podcast as our elections keep coming up every couple of years.

Mike: Yeah. Well, and thank you so much for the work that you're doing, making sure that this message is getting out there, and that we are building a community of people that are concerned and committed to protecting our democracy.

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