December 13, 2024 • 47 mins
And so the great American election crisis that was destined to be, didn’t happen – the end-result stirring relatively little in the way of legal challenges or disruption of the constitutional process, with the public feeling better about the democratic process (or so the post-election polls suggest).
In this, the last of four installments on election integrity in the 2024 campaign cycle, Ben Ginsberg, the Hoover Institution’s Volker Distinguished Visiting Fellow and a preeminent authority on election law, joins Hoover distinguished policy fellow Bill Whalen to discuss whether America’s crazy quilt of election systems and safeguards was formidable or merely fortunate in 2024, what laws a Republican Congress might pursue (voter ID?), plus future Hoover endeavors to help craft better ways of holding elections in America.
Recorded on December 11th, 2024.
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(00:04):
[MUSIC]
>> Bill Whalen (00:09):
It's Wednesday, December 11th, 2024, and
welcome back to Saint,Sinners and Salvageables,
a Hoover Institution podcast examiningAmerica's democratic process and
the many challenges inherent in stagingelections in these charged partisan times.
I'm Bill Whalen, I'mthe Hoover Institution's Virginia Hobbs
Carpenter Distinguished Policy Fellowin Journalism.
You might recognize me from the Matters ofPolicy and Politics podcasts that I do.
(00:30):
You can find that and other excellentHoover podcasts at hoover.org/podcast,
I definitely recommend you check it out.
Joining me today, he is the godfatheractually of Saints, Sinners, and
Salvagables.
This was his idea back in 2022, soif you don't like it, blame him.
But it's a great idea andit's a great podcast, I think,
because he is a great guest, a great guyall around, a great fellow, dare I say,
(00:50):
my colleague Ben Ginsberg.
Ben is the Hoover Institution's VolkerDistinguished Visiting Fellow and
a nationally known political law advocatewho was involved in several projects this
past year involving electionintegrity in this election cycle.
He joins me today for this, the fourth andinstallment of Saints, Sinners, and
Salvageables for 2024 at least.
We're gonna talk about the end ofthe podcast, what the future holds for
this and Ben's other endeavors andelection integrity.
(01:12):
Ben, welcome back to the podcast.
Thanks, Bill.
Great to be here as always.
So to recap, my friend, in the firstepisode it was you and me talking about
the election from a 30,000 foot 11 level,what we thought might would happen.
I need to go back andscore about everything we got wrong, but
I think actually we didpretty well on that podcast.
It was okay.It was okay, again,
you can't get them all right.
(01:33):
Second episode, you took the helm,you were the moderator.
You did a really great jobinterviewing Justin Grimmer.
For those who don't know Justin,he's a Hoover Senior Fellow and
a Stanford University political scientistwho studies election integrity.
And he did something very cool this year,he actually traveled to Southern Oregon.
He got out of the Stanford bubble andwent and
watched how the locals handle voting andhow the voting system is challenged.
(01:55):
Third episode, it was me and Ben again.
We recorded about 32 hours afterthe polls had closed in Alaska.
We talked about what worked andwhat didn't work in this election.
I have to report it was a surprisinglyupbeat podcast with two guys, I think,
who were seriously sleepdeprived at the time.
And now here we are, Ben back again at it.
For our fourth and final episode.
(02:15):
Let me read you something that Joe Bidensaid, Ben, two days after the Election.
I want to get your thoughts on this.
Here's the president,he's still the president, by the way.
Quote, I hope we could lay to restthe question about the integrity of
the American electoral system.
It is honest, it is fair,and it is transparent,
and it can be trusted, win or lose.
Pretty noble words from the president,I think, but
also the kind of words you saywhen election is decisive, no?
>> Benjamin Ginsberg (02:37):
Yes, you certainly do, and this was a decisive election,
right?
All seven battleground statesmoved in the same direction for
Donald Trump by sufficient margins thatthere weren't recounts in any of them.
And, Bill, it's amazing what that did for
public confidence in the elections wherethere was a great deal of doubt about it.
(03:00):
With surprisingly low confidencerates by the American people
after the election results,it has been historically high.
There are polls out from Pew,Yankelovich Morning Consult,
an academic survey of performanceof American elections.
And all of them show that peoplebelieve the elections were run well and
(03:24):
the results were accurate.
A tremendous transformation.
>> Bill Whalen (03:29):
Let me phrase it to you this way, Ben.
You spend a lot of time talking toelection officials around the country.
You've done some greatconferences at Hoover,
bringing these guys out to talkabout what they go through.
As you've talked about themsince the election, Ben,
do they feel like they're good ordo they feel like they're lucky?
>> Benjamin Ginsberg (03:44):
Lucky, I mean, let's be honest about this.
The doubts about the election andthe system were carried in over 100
lawsuits that have been filedlargely by Republican entities.
But there were also a slew of democraticentities challenging some parts of
the election procedure.
(04:05):
The results were so decisive that noneof those suits had been carried on.
And there was no sort of upsetover the election results,
which is why confidence went up.
But nobody thinks that this is notwhat we'd call a cicada problem.
(04:27):
It's going to go back underground andthen reemerge at some point in the future.
And so those doubts probably need tobe addressed in the next few years.
>> Bill Whalen (04:41):
I wish you had said cicada, Ben.
I used to live in Washington as you do,and
I used to have a convertiblewhen I lived in Washington.
And I put the top down during cicadaseason and literally the things would fly
into your car and give you a heart attackevery time they'd fly in the car, so.
>> Benjamin Ginsberg (04:55):
They would, well, we dressed up kids as cicadas when they were
at a very tender young age,took lots of pictures.
They loved it.
They've really become family icons.
>> Bill Whalen (05:04):
Yeah, I wanna turn your attention, Ben,
to a state you're more than familiar with,Pennsylvania.
And something that happened asthe vote count was going on.
Pennsylvania, I think we could agreethis would constitute what is genuine
skullduggery.
If you look at the numbers right now,Trump won Pennsylvania, Ben, by I think,
about 120,000 votes or so,about a 1.7% difference.
(05:25):
So decisive.
But as the votes were being counted, theelection was still kind of being settled,
you had a controversy in Pennsylvania,and here's what happened.
The Pennsylvania Supreme Court hadruled before the election that
mail ballots lacking formallyrequired signatures or
dates should not be includedin official results.
So what happens?
Lo and behold, a Democratic senatoris trailing in his election.
(05:48):
And Democratic officials in Philadelphiaand Bucks County and Center County in
Montgomery County, these are the suburbsof Philly, they ignore the court order.
So, Ben, what happens whenelection officials go rogue?
>> Benjamin Ginsberg (06:01):
Well, what happened in this instance is what should happen.
The same thing that happened,for example, when election
officials decided not to certifyelection results after 2022.
The courts put them back in line.
So if election officials go rogue, whichis certainly what happened in this case.
>> Bill Whalen (06:25):
Yeah.
>> Benjamin Ginsberg (06:25):
It took the courts to say, can't do that.
And so the ballots thatthe Pennsylvania Supreme Court
said were not properlyverified were not counted.
And, Bill, you know,between what happened in Pennsylvania and
what happened with certifications in 2022,but all elections were certified in 2024,
(06:52):
the lawsuits that werebrought before the election,
with a lot of banging of the drum andare not continued.
It tells you that a lot ofthe rhetoric around elections,
which has caused the decline in trust forelections,
is really more about politicaltactics than deep seated concerns and
(07:15):
beliefs about the system.
>> Bill Whalen (07:17):
If you're on a campaign, Ben, and
let's put yourself in the situation.
So Senator Casey, who was involvedhere in Pennsylvania, his campaign.
If you're working on the Casey campaign,working on any campaign that's looking
this scenario, how do you legallyprepare for a situation like this?
Are you, are you game planning this work,aiming this ahead of the election, or
do you just kind of turn on the flyas the votes are being counted and
(07:39):
realize that we need legal avenues here?
>> Benjamin Ginsberg (07:41):
Even before Bush versus Gore,
when I was a young puppy of a lawyer,we always prepared for recounts.
And what that entailed and still entails,
is being sure that you have the law set,that you have personnel.
In all the polling places to be able toverify what's happening on election night.
(08:06):
And yes, you do game plan out what youmay do in a number of circumstances.
The game planning is more a goodmental exercise because you never,
ever get it right.
>> Bill Whalen (08:17):
Yeah.
>> Benjamin Ginsberg (08:18):
Which you're gonna be arguing.
And recounts are situationswhere the position you
take depends on whether you're winning orlosing.
If you're winning, you want to stopadditional votes from coming in because
you like the fact that you're winning.
And if you're losing, the name ofthe game is to loosen requirements so
(08:41):
that more votes come in so you standa better chance of gaining a lead.
>> Bill Whalen (08:46):
Yeah, now,
I know there was a movie done on the Bushwho played you in the movie, by the way?
>> Benjamin Ginsberg (08:52):
I think it was George Clooney, wasn't it?
>> Bill Whalen (08:55):
[LAUGH] >> Benjamin Ginsberg
it might have been a short, bald,bearded guy instead of Alabama.
Wonderful character, man.
Yeah, Brad Pitt was busy, right [LAUGH]?
>> Benjamin Ginsberg (09:03):
Yeah, that's right.
>> Bill Whalen (09:04):
Yeah, but no, I mean, people.
>> Benjamin Ginsberg (09:06):
DeVito was too blissful.
>> Bill Whalen (09:07):
People could go back and watch that movie and
see how things went down in that.
But you actually were there.
So actually tell us how this workedout as an attorney in terms of that
election night.
And you see this incredibly,ridiculously close vote in Florida and
just how the legal staff was kind ofgearing up just really on the fly there.
>> Benjamin Ginsberg (09:25):
And of course,
what happened in Florida 2000 was reallythe mother of all of all recounts.
That there would be a 537 vote marginin one state deciding a presidency
is something that was probably not on manybingo cards going into that election.
So as votes keep coming in andmargins keep narrowing,
(09:49):
you keep watching more andmore for what could happen.
And then at some point, you make thedecision, which is really the gut punch
in the stomach decision that youneed to prepare for a recount.
>> Bill Whalen (10:03):
Right. >> Benjamin Ginsberg
you send people into the state inall the relevant jurisdictions,
you start pulling the law.
You think very strongly howyou have to staff it up.
So the first decision the Bushcampaign made, for example,
was that James A Baker IIIwould run the effort.
(10:24):
The ultimate combination of scholar,lawyer, savvy political operative.
Right.
>> Benjamin Ginsberg (10:31):
Was the perfect person to do that.
And then you start building outan organization to handle the litigation
that's going to come.
The political operation of countingthe ballots, the communications
that you have to have to be able toexplain what's going on to people.
You need a ton of logisticalfolks to make everything happen.
(10:55):
You need fundraising because recountsare unanticipated expenses when
theoretically campaignshave spent all their money.
So you do the organizational chart forhow you're gonna carry that out.
But the real work, of course,is being sure that you have people to
look over the ballots and to bepresent whenever ballots are counted.
>> Bill Whalen (11:20):
And how do you work in terms of precedent,
Ben, if you maybe I watch toomany legal shows on tv, but
there's always a lawyer who's goingback into this room full of a million
legal books, and he orshe is always going back to precedent.
So as an election attorney,how do you fall back a precedent,
especially in a situation like Florida,which Renegart is unprecedented?
>> Benjamin Ginsberg (11:38):
Well, recounts are always.
>> Bill Whalen (11:39):
Well, recounts are triggered by, well,
recounts are automatically triggeredin most states by like 1% difference.
>> Benjamin Ginsberg (11:44):
Certainly in some states.
But all the precedents that take placein a state are covered in state law.
There is, there might be an equalprotection count in a recount case where
not all similarly countedballots are treated the same.
But by and large,the precedents that you look for
first are what's happened inprevious recounts in states.
(12:08):
Often they are not statewide recounts,they're more localized,
state legislative,maybe a statewide governor's race.
And so you need to take the precedence andlike you do for
any legal case,apply it to the facts on the ground.
The facts are generally, developed by thelawyers talking to people who have been in
(12:31):
the polling places on election day or areviewing the ballots as they're counted.
>> Bill Whalen (12:37):
Ben, do you pay much attention to what goes on in California in
terms of the election and vote counting?
>> Benjamin Ginsberg (12:43):
I do, in the same sense that I watch NASCAR races for
the Rex.
>> Bill Whalen (12:49):
[LAUGH] Okay, good analogy.
Here's what I'd like to talk to you about,California has a mess on its hands.
We can agree.
One election official calls the Californiavote counting process a pig and a python.
In other words, we have so many votes tocount, we've created a system that makes
it difficult to count,that it's hard to digest it.
(13:09):
And this is not a partisan observation.
It's just a problem with common sense.
And this year, Ben,state lawmakers came back to Sacramento.
New session began on December 2.
Not the formal new legislature, butthey came in a special second session,
December 2, the governor's request.
You were still counting votesin California on December 2nd.
So this is confusion and this is bad.
(13:30):
How did California get into this mess,Ben?
And how does Californiaget out of this mess?
>> Benjamin Ginsberg (13:37):
Well, the way you get out of the mess is to pass more
sensible laws.
>> Bill Whalen (13:41):
Okay. >> Benjamin Ginsberg
We'll get to that in
a minute, but let's explain how Californiain terms and explain to the audience just
in terms of California's gettingballots and how they count the ballots.
>> Benjamin Ginsberg (13:51):
Well, they count the ballots late.
California has moved tobecoming an all mail state.
So mail in ballots.
That means that people often dropoff mail ballots on election day.
And then California's law saysthat any ballot postmarked
(14:11):
on election day can be receivedup to seven days afterwards.
And then there are additionaltime periods for ballot curing.
And in other words,if a signature doesn't match or
a date is missing on an envelope,the voter can be called to correct that.
Mail ballots generally requirea lot more verification than if
(14:34):
somebody walks into the polls andcasts a ballot.
And so it is a combination of wanting toallow ballots to come in after a week,
after election day, andto have maximum cure times.
I guess the essential point isit's a balance right there is
(14:55):
wanting to count as many votesas is physically possible.
But that does come at a cost forhuge delays.
And what we saw in 2020is that delays between
the polls closing andgetting results is the petri dish for
(15:16):
election conspiracy viruses to spread.
Just imagine if California was the outcomedeterminative presidential state and
it was taken three weeksto figure out who won.
>> Bill Whalen (15:31):
Right, and the problem in California, Ben, is it takes a long time.
California was the last stateto settle a House election.
I believe it's about a week agoat this time it was settled.
And the problem in California,at least, and again,
I'm not being partisan here, is thatthese counts go on and they go on and
they go on and they invariablybenefit the Democratic candidate.
(15:52):
Again, it's a state that's2 to 1 democratic, so
common sense would dictate if youhave a lot of votes to count,
there'd probably be more Democrats andRepublicans voting.
>> Benjamin Ginsberg (15:58):
It's kind of a condescending attitude.
By Democrats to provideall these opportunities.
It sort of says there's something with ourvoters that they can't meet a deadline.
>> Bill Whalen (16:09):
I want to get to that in a second.
You're absolutely right.
It is kind of like you'retreating them like children.
But the problem is you hit it on the headhere when you see a vote count that gets
carried out for an extra month and thenumbers are just moving in one direction,
one party's direction.
If you're Republican, granted,this is California, Ben, and
Republicans really are kind ofthe downcast, trodden minority out here.
(16:30):
You just feel like the fix is in.
>> Benjamin Ginsberg (16:33):
Yeah, it is.
That delay is really harmfulto public confidence in
the election process as a whole.
And that's a real downside.
I mean, the way you get out of it isto change the laws that allow for
those long delays to take place.
(16:53):
You can open up if you want to.
If you're worried about deprivingpeople of opportunities, you can extend
the voting period before the electionto provide the same number of dates.
But a deadline is a deadline,and many states do call for
absentee ballots to be in on election day.
>> Bill Whalen (17:13):
Well, but here again, Ben, we're treating voters like children
because California mails a ballotto me a month before the election.
Do I need the ballot twomonths before the election?
Now, we're getting to a separate problem.
Let's say I get my ballot inthe mail two months beforehand, and
I decide to vote that way.
What if something incredibly awfulcomes out about the guy I vote for?
It turns out that he was a mastermindbehind the guy who got shot in
(17:34):
New York City or something like that.
I can't take back my vote, can I?
>> Benjamin Ginsberg (17:39):
No, you can't.
Although some states do haveprovisions where you can go in and
have your ballot pulled out.
>> Bill Whalen (17:47):
Yeah, but I just think.
>> Benjamin Ginsberg (17:49):
Not in California.
>> Bill Whalen (17:50):
Yeah, look,
you're giving voters 30 days to makeup their minds about something.
>> Benjamin Ginsberg (17:54):
You can do that, folks.
>> Bill Whalen (17:56):
Yeah.
You know, I spent some time onthe national association of Secretary of
State's website, Ben, andlooked into what various other states do.
And first of all,you see the problem that California has.
California has about 22 million voters,usually in a presidential election,
because we're just a huge state.
About 90% of those votes,Ben, are by mail.
This is the pig and the python.
You can't digest that many votesif you look at each one and
(18:18):
try to make sure the signatures match.
I looked up numbers forNew York state in 2020.
In 2020, Ben, California actually had 15.4million mail ball in that same cycle,
Ben, New York had 1.7 millionabsentee mail ballots as well.
So, you know,this is the California problem.
Just how dynamic it is.
But then I looked at Florida, Ben,and Florida does something that
(18:40):
I think California andother states have to consider.
The deadline for returning a mailballot in Florida, Ben, is when?
>> Benjamin Ginsberg (18:47):
I believe it's election day.
>> Bill Whalen (18:49):
Correct. You know, your elections,
it's election day in Florida.
We don't give like in Californiaan extra week to send it in.
You know, it shows up seven dayslater in California you still voted.
You got to turn it in an election day.
So this gets back to the Ginsburg theory.
Treat voters like adults.
>> Benjamin Ginsberg (19:03):
Yep, and I believe that there are only 12 states that
allow ballots to comein after election day.
But it was also Pennsylvania wasvery slow in counting its ballots
this year is that Pennsylvania'ssenate recount highlighted.
But generally, the count is slowin Pennsylvania in part because
(19:25):
the Pennsylvania legislature doesn't allowfor the preprocessing of absentee ballots.
So the count becomes very late.
Arizona was very slow because itallows voters to bring in absentee
ballots on election day, andthat always creates a huge backup.
>> Bill Whalen (19:45):
Ben, how would California put, choose your favorite saying here,
the horseback in the bar andthe genie in the bottle, if you will.
How does California kindof undo what it's done?
Because as you mentioned back duringCOVID California, like other states,
decided to go to mail in ballots.
There's a genuine health concern then, but
California has since madethat the permanent law.
So every election, every registeredvoter in California gets a ballot.
(20:06):
They're not going to undo that.
>> Benjamin Ginsberg (20:08):
No.
You're not going to unpeel mail ballot.
People like it.
People take advantage of it.
But you can have the deadline forreceipt of the ballot on election day.
That's a matter of changing a law.
The notice and cure provisions inCalifornia extend that even further.
(20:28):
There are certainly states that havenotice and cure provisions, which means if
your signature doesn't match orthere's a date that's missing, election
officials will call you up and tellyou to come in and change your ballot.
You can reduce the time period for that.
All in all, there are a numberof practical changes that can be
(20:50):
made to speed up the process.
>> Bill Whalen (20:52):
No, I have some friends, Ben,
who will tell you that money will solveall the problems, that if you simply spend
more money hiring more county electionofficials, that they can count faster that
if you spend more money on outreach,people will vote earlier.
Have you seen any studies or
any empirical evidence which would suggestthat a public service announcement will
encourage people to turn on the ballotsa week before the election?
>> Benjamin Ginsberg (21:12):
Well, I think a public service announcement right before
an election might be able toconvince people to do that.
The notion of hiring more peopleis not the issue, however.
>> Bill Whalen (21:23):
Ben, I don't know if you saw if there's a piece of the Atlantic
that ran the other day.
It's called the $100million election flop.
And what it focused on was a effort byelection reformers to go to a handful
states across America.
I find this reallyfascinating thing to read.
They wanted to change how electionsare done in Colorado and Oregon.
(21:44):
These are two pretty blue operations here,Nevada and Arizona,
which were two of the seven swing statesin this election, plus Montana, Idaho and
South Dakota, which are pretty decidedlyRepublican in national elections.
And what they wanted to do, Ben, was theywanted to bring in the Alaska approach to
voting, which is the socalled final four voting.
For our listeners andviewers who are not familiar with this,
(22:04):
Alaska has a rather unique voting system.
They hold an open primary,
meaning everybody from everypersuasion is on the same ballot.
And the top four finishers then advancetoward November, not two, but four.
Then voters decide the winnerby ranked choice voting.
And what was interesting to hear, Ben,was they tried this in blue states,
they tried this in red states and statessomewhere in between, and the idea bombed.
>> Benjamin Ginsberg (22:27):
Yeah, it certainly did.
It did succeed here in the People'sRepublic of the District of Columbia.
>> Bill Whalen (22:34):
Gosh.
>> Benjamin Ginsberg (22:34):
Which the Atlantic article did not report.
And Alaska held on just by a whisker.
>> Bill Whalen (22:42):
Exhibit.
>> Benjamin Ginsberg (22:43):
That system.
Nevada was in a position whereit passed two years ago but
had to pass a second time and that failed.
What's interesting aboutthis is that ranked choice
voting is a project that is being verymuch pushed by a group of elitists.
(23:06):
And I think you can explainthe sort of bipartisan rejection
of this as an effort by the elitesto change the laws under
which they're not capableof winning elections.
Instead of going out and
doing the hard grassroots work of gettingpeople to vote for your candidate,
(23:29):
they're proposing rules change tomake it easier for their folks.
So not surprising that it gets rejected.
>> Bill Whalen (23:38):
It sounds like you're not a fan of the system.
>> Benjamin Ginsberg (23:40):
I'm not a fan of the system.
I think ranked choice votingis far too complicated.
It is capable of being gamedby wily political operatives.
I think that it is sort ofa short-term solution at best,
and I think it is sufficiently.
Complicated that it favors the elites.
(24:03):
I mean, the Cambridge, Massachusetts CityCouncil has had ranked choice voting
about as long as any jurisdiction.
And more and more,it is sort of well-educated folks who
understand how to maneuverranked choice voting to vote for
all the candidates who end up being themost successful in electoral government.
(24:27):
I think the top two system or top foursystem is, in a sense, more interesting.
But on all the sort ofreforms that also include
things like proportionalrepresentation and
a number of other cures to the system that
(24:49):
are favored in certainacademic institutions.
I mean, all of them reallyattempts to change the rules in
a partisan fashion, in a mannerthat really is a substitute for
proponents of those reforms notbeing able to win elections,
(25:10):
not having their ideasuniversally embraced.
>> Bill Whalen (25:14):
To clarify, when you say top two system, you're referring to, say,
California, which is primary.
And the primary is,everybody goes on the same ballot and
the top two finishers, regardless of partyaffiliation, advance toward November.
>> Benjamin Ginsberg (25:27):
Yes, the theory is that this produces more moderate
victors andforces people to the center to be able
to get the majority of voters asopposed to people on the polls.
>> Bill Whalen (25:45):
Right. >> Benjamin Ginsberg
how's that going in California, Bill?
Well, let's don't let California hijack this,
cuz there are things I wanna talk about.
But let's spend a moment on it becauseit's created some very funny dynamics in
this state.
Let me take you back to 2018, forexample, when Gavin Newsom open seat,
Jerry Brown stepping down as governor.
And so Democrats,Republicans are lining up to run.
(26:06):
So Gavin Newsom, at the time lieutenantgovernor, he goes on to win the election.
He lives in fear of having toface Antonio Villaraigosa,
the former mayor of Los Angelesin the general election.
Why does he fear Villaraigosa?
Raigosa has high name recognitionin Southern California, Latino.
He's a player in California.
And Newsome doesn't wanna face this guy.
So what does Gavin Newsom do, Ben?
(26:27):
He spends a ton of moneyadvertising against whom?
Running negative ads against whom?
Not Antonio Villaraigosa, butthe most prominent Republican in the race.
Why?
Because his people come to the conclusionthat the more money we spend dumping on
the Republican, it's gonna raisehis numbers among Republicans and
he is gonna therefore finish second andI'll finish first.
(26:49):
If I can finish ahead of Villaraigosa andthat weak Republican
can finish second place overall,I then am gonna become the governor.
Why?Because in California, as I mentioned,
it's about a two to onedemocratic state in.
So this is one example where the top twoprimaries maybe not worked out that well.
And you're gonna see this again in 2026,depending on what Kamala Harris does,
if she runs for governor out or not.
(27:10):
It's very interesting, Ben.
You get a lot of aspirationalpeople lining up for an election.
And here in California right now,the governor's race, for example,
there are at least six people lookingat running right now, maybe more.
I've gotten, since the election,phone calls from three different people,
all ask me what I thinkabout their running or not.
It's just, when there's no good seat outhere because California governors tend to
(27:31):
get reelected, everybody wants to run.
But that's the problem, though.
It's encouraged Newsom and other Democratsto really just try to raise the profile of
the person they think isthe weakest opponent come November.
>> Benjamin Ginsberg (27:41):
Yeah, like I said, it's- It's not perfect.
It's a performer's cure that's gonnabe game pretty quickly by the political
operatives.
>> Bill Whalen (27:48):
Yeah, but this takes in a larger conversation for
another day about the merits of that,the merits of term limits and so forth.
But let me ask a question, my friend.
What is your favorite political movie?
Let me qualify that.
What is your favorite moviethat doesn't have you in it?
[LAUGH]>> Benjamin Ginsberg: [LAUGH] I've always
been partial to that classicThe Candidate, the Robert-.
That's what I was gonna say.
(28:09):
Thank you for reading my mind.
It's not a setup, folks.
I was gonna say The Candidate.
What is the last line of The Candidate?
>> Benjamin Ginsberg (28:15):
Ooh, I'm gonna leave that one for you.
>> Bill Whalen (28:18):
Well, let me see if I can jog your memory.
So the last line of The Candidate,let's spoil it for everybody.
But you know what,the movie's been out for over 50 years.
This is part of the beauty andthe charm of the movie.
It was filmed in 1972, released in 1972.
A very young Robert Redford who didn'tplay Ben Ginsberg later, but could have.
>> Benjamin Ginsberg (28:37):
Pretty. >> Bill Whalen
are eerie.Redford plays a very young aspirational
Democrat named,I think Bill McKay is his name.
This is how old the movie is.
He's running an uphill campaignas a Democrat in California.
He run against a verywell-established Republican senator.
And it's a very kinda cynicallook at how politics are waged.
He comes in as a young idealist, andhe quickly realizes that in order to
(28:59):
get elected, I gotta ditch the idealism[LAUGH] and just do what it takes to win.
And so it's him just doing allkinds of various campaign stunts.
But it's arguably the bestending of any political movie.
Why?Because it ends on election night when he,
spoiler alert, has probably won.
And you can appreciate thishaving been on campaigns.
They show what's goingon in his hotel suite.
(29:20):
Everybody's running around, his wife'stalking about where they're gonna get
a place in Georgetown and so forth.
And what Redford, the candidate,does is he gets his guru, his Svengali,
his campaign manager, pulls him aside,and they go to a quiet space,
they sit down, andRedford looks up at him.
These are the final words of the movie.
He goes, now what do we do?
[LAUGH] >> Bill Whalen
(29:41):
And it's brilliant because itpoints out that this is, sadly,
how a lot of electionsare played in America right now.
It's not what you're gonna do,it's just about winning.
So now what do we do?
That is a very long-winded way, Ben,of me getting to this question,
now, what do we do with electionintegrity, election reform in America?
Now, there are scholars who are busyat this, in addition to you.
(30:01):
For example, this group calledScholars for Electoral Reform,
who have actually written to Congress.
And here's what they want, andI quote, electoral system changes such
as proportional representation, expandingthe size of the US house, instant runoff
voting, fusion voting, open primaries, andindependent redistricting commissions.
Yeah, good luck with that.
>> Bill Whalen (30:21):
Yeah [LAUGH].
>> Benjamin Ginsberg (30:23):
Look, that's what I mean about elites who can't
win elections wanna changethe rules to favor themselves.
There are some of those reformsthat are probably pretty good.
But if you're going to change the rulesof the game, it has to be bipartisan.
And there is nothing, I think,bipartisan about that group.
(30:44):
So I think that the rules changesthat are being talked about will
not take place with a Republican Congressand a Republican President and
Mitch McConnell chairingthe Senate Rules Committee.
>> Bill Whalen (30:59):
I thought about McConnell, but that was my next question.
You want bipartisanship, but look, it'sRepublicans' games, Republicans' rules.
Granted, it's,what is the Congress right now?
It's what, 220 to 215 in the house.
But actually it's soon going to be 217to 215 when the members don't come back.
So good luck muscling stuff through.
But you look at that Congress, Ben,
(31:20):
what do you think they're gonnado in the way of election reform?
Or does this tie back to what wetalked about in the beginning,
that everybody's kinda calm right now?
>> Benjamin Ginsberg (31:28):
Well,
I think there may be a Republicanversion of election reform.
Remember when the Democratscontrolled all three branches,
they did the poorly-named Forthe people Act.
>> Bill Whalen (31:40):
Mm-hm.
>> Benjamin Ginsberg (31:41):
That was kind of a wish list of Democratic ideas.
That crashed because it hadtoo many ideas in it, frankly.
So that while it gained more supporters,that also gained more opponents,
and ultimately cratered.
>> Bill Whalen (31:57):
I think also history show that that was Kind of the beginning of
the end of Kamala Harris and that was kindof her first task as the vice president,
to shepherd that through Congress, and
it just->> Benjamin Ginsberg: Yeah.
Yeah, belly flopped.
>> Benjamin Ginsberg (32:07):
Didn't go anywhere.
I think Republicans might trya election administration type bill.
With things like voter ID,mandates to clean up the rolls,
amendments to the NVRA,the National Voter Registration Act,
which is pretty old anddoes need some help.
(32:30):
There might be some cybersafeguards in some legislation.
I mean, I do think that whilethe complaints about the conduct
of the 24 election went underground,that the issue is still alive.
(32:50):
But of course, the problem withany election bill in a new
administration is that Donald Trumphas a very robust policy agenda
that with those margins is notgoing to be easy to get through.
And so while I think theremay be a bill drawn up by
the House Administration CommitteeRepublicans on election reform,
(33:16):
it's not going to be a high priority andunlikely to go anywhere.
Of course, what happens in the statescan be an entirely different matter.
Although the political makeup of,
I think only the Michigan legislaturechanged in all the legislative races.
I do think that there is an opportunity,
(33:40):
not in the legislative arena,but rather in sort
of the policy area forTrump folks to explain the evidence
that they have thatelections are not reliable.
And to sit down andsee if there aren't a series
(34:00):
of things that can't be examined for
the flaws that are perceivedin the system.
With either corrections for that or
recognition that the system workspretty well no matter who wins.
>> Bill Whalen (34:17):
What about governors Ben?
Is it too kumbaya for me to think thatmaybe Josh Shapiro in Pennsylvania could
hook up with Ron DeSantis in Florida andjust a handful of red, blue and
battleground governors could get togetherand talk about common sense reform?
Or is this just not America in 2024?
>> Benjamin Ginsberg (34:35):
Well, I think they can talk about it as leaders of
a nationwide commission to offer ideas.
The election laws andthe system in Pennsylvania and
Florida are pretty different.
For example,Pennsylvania has a bottom up system where
each of the 67 counties has a hugeamount of independent authority.
(34:56):
Florida is a much more uniform state.
They only have one type of machine.
And while the counties in Florida do havea pretty large degree of independence,
it's not as much as in Pennsylvania.
>> Bill Whalen (35:13):
Right, well put.
Okay, getting back to Congress, let's sayCongress moved forward on voter ID, Ben.
I could see one ortwo ways to advance this argument.
One is the common sense argument that BenGinsberg goes to buy a bottle of booze in
the grocery store, they're going to askfor his id, even though clearly you and
I are a few years past age.
>> Benjamin Ginsberg (35:31):
Or a library book, Bill, that's library book.
>> Bill Whalen (35:33):
Or a library book, okay.
We'll put you on a higher plane.
Booze for me, library book for you.
Ben Ginsberg wants to rent a car,he needs to show an ID.
Ben Ginsberg gets on an airplane,he's gonna show ID.
You need to show identification to do mostanything in society, but not to vote.
So that's the common sense argument, Ben.
But is there a fraud argument?
In other words, could you, if you'representing this case to Congress,
(35:55):
could you point to fraud?
>> Benjamin Ginsberg (35:56):
Well, I can't point to instances of fraud.
What I can do is point tothe public opinion polls that show
that over 80% of the people favorvoter ID because it gives them
confidence that there aren'tineligible voters voting.
(36:17):
So I think that the factor that it raises,confidence in the institution
of elections is really the strongestargument for voter ID.
>> Bill Whalen (36:28):
Okay, all right, Ben, let's put you back out there.
In the 50 states, one election ends,another one begins.
There are people, as I mentioned inCalifornia running for governor in 2026,
this just never stops.
Let's start looking atthe system moving ahead.
I mentioned Bill McKay, Democratic icon.
Let's talk about another Democratic icon,Teddy Kennedy.
(36:48):
What did he say at the 1980convention in his swan song?
The work goes on, the cause endures,the hope still lives,
the dream shall never die.
I cannot do a Kennedy imitation,maybe you can.
But let's talk about the dreamshall never die, Ben.
What work remains to bedone on election integrity?
>> Benjamin Ginsberg (37:03):
It's building back public confidence in election results.
Again, this may be a magic timewhere both parties seem to
agree that this election was done well.
But I think we have to be honestthat the system itself is
not perfect,it is not built for precision.
(37:25):
We have over 10,000different jurisdictions.
That means the counting and
casting of ballots is going tovary as much as human nature does.
There's not 10,000 ofanything that will be secure.
There's a perpetual problemwith enough research and
development in the votingtechnology area simply because it's
(37:49):
a product that's used a couple of timesevery other year and largely not much.
There's a workforce problem.
The system is really fueled by people evenolder than me who volunteer for elections.
That problem has been exacerbatedby threats to election officials so
(38:15):
that fewer people are volunteering.
That's gotta be corrected.
There are a number of standardsof reliability and laws that can
be put in again to raise confidencethat the system is working properly.
So I think that you can doa number of reforms like that,
(38:38):
including a better voterroll maintenance system.
We're a very mobile society, so peoplemove from jurisdiction to jurisdiction.
There is a program thatonly about 30 states,
maybe less than that now, are a part of,
where they cross check their voterregistration rules to stop dual voting.
(39:01):
I think more robust participationin that would certainly help.
The slow count that wewere talking about before.
>> Bill Whalen (39:11):
Right.
>> Benjamin Ginsberg (39:11):
In California and some other states could be corrected.
So there are some improvements thatcould be made to the election system.
And the complaints that hascome from Republican officials
in the form of their lawsuitsshould be litigated.
If there's evidence of realproblems in the system,
(39:32):
we ought to get that evidence out onthe table and address how to fix it to
increase confidence in the institutionof American elections.
>> Bill Whalen (39:41):
Right now.
Voter ID law, Ben, that would be federaland that would apply to 50 states.
But are we talking about 50 statesolutions as well in terms of election
integrity, orare we back to square one and
hoping that the 50 statesindividually do the right thing?
>> Benjamin Ginsberg (39:55):
You're back to it being a system where the state States
really control.
>> Bill Whalen (40:00):
Right. >> Benjamin Ginsberg
federal ID for federal elections, butyou could also see a state saying,
well, you don't have to have photo ID for
our state elections because wethink it cuts back on the vote.
So the elections area is onewhere you do need bipartisan
buy in to common sense reformsto improve the system uniformly.
(40:27):
Yeah, I think where I'd see frustration would be you look at
a state like California,New York, Illinois.
The really big states have big votingpopulations, especially California,
Ben, where everybody'sgetting a ballot in the mail.
California needs to be constantlypurging its system and going through and
changing it.
I don't know how long welived in your house, Ben, but
I imagine when you moved in, there wasa period for several years where you're
(40:48):
still getting mail from the personwho lived there before you.
And eventually it goes away.
But you wonder in a state like California,just how long into the future are you
gonna be seeing people in onehouse getting multiple ballots?
I'm not playing dark conspiracy card oranything like that, but
just common sense dictates that you justneed to be scrubbing that thing constantly
because why?
You're right, people come andgo from addresses.
>> Benjamin Ginsberg (41:08):
Yeah, on mail ballots, which you're right,
is like the preeminent example ofsomething that just feels wrong to people.
Those ballots don't get counted becausethere are checks when the ballots
are received to makesure it's a valid voter.
But you're right, getting this ballotthat could be voted is something that
(41:28):
decreases confidence in the system,and that's why it's worth changing,
even if those votes are ultimatelyscreened before they're counted.
>> Bill Whalen (41:38):
But it jams the system, Benny.
But say, okay, the good news,the vote doesn't get counted, but
that means that poor Ben Ginsburg orBill Whalen has still had to waste
ten minutes of their lifescrubbing the darn thing.
>> Benjamin Ginsberg (41:47):
You are correct.
>> Bill Whalen (41:50):
Okay.
All right, let's talk now aboutwhat you're doing at Hoover.
What comes next for you?
>> Benjamin Ginsberg (41:54):
I want to take a look at this way that we can air all
the concerns aboutthe accuracy of the system and
be able to bring people from acrossthe political spectrum together to take
a look at what evidence may existthat there are real problems.
(42:15):
Part and parcel of that is the commonsense solutions we were just
talking about and trying to getsome bipartisan buy in for that,
maybe draft model legislation forthe states.
And I think on a longer term,we need to spend some time
reimagining our election systemto make it more accurate,
(42:38):
more reliable to give peoplea greater sense of confidence in it.
>> Bill Whalen (42:44):
All right, are you looking at other states, Ben, or
are you looking at other countries?
>> Benjamin Ginsberg (42:49):
Well, I think you gotta start this at home and
look at other states.
I think it is helpful to havesome comparativists tell,
tell you what's going on in other states.
>> Bill Whalen (43:02):
Right. >> Benjamin Ginsberg
rich history of the way wevote that I think it can.
Looking at other countries canbe informative for solutions.
But American exceptionalism isgonna prevail here and its ideas
that will come as opposed to usuallydo it the way they do it in X country.
(43:26):
Exactly.
Is there any one state you turn to?
I think on the last podcastI talked up Florida,
cuz Florida just impresses mewith just how fast they move.
And it's a big state, it's a complicatedstate given time zone changes and weather,
you name it.
Florida trouble alwaysseems to find Florida, but
Florida does their elections reallycleanly and quickly really well.
>> Benjamin Ginsberg (43:45):
I would give a lot of kudos to Georgia this time around.
It did a really good job.
I think the, you know,
North Carolina suffered fromthe hurricanes right before the election.
And actually, although they have onepainfully tight state supreme court race,
(44:06):
the system itself forcounting ballots really held up well.
Including in that tight race where allthe counts seem to have been accurate.
Michigan passed some new laws forthis year that seems
to have sped up theiraccounting considerably and
they all deserve a lot of credit for that.
>> Bill Whalen (44:30):
Okay, and then what about Donald Trump and his followers?
On election night when the election wasnot settled, Donald Trump was out there
saying that the fix was in in Philadelphiaand phony votes were being counted.
I think he said the sameabout Detroit as well.
Then suddenly the election wenthis way and he got very quiet.
But I think there's still that strain outthere that elections are still rigged and
it's us versus them.
>> Benjamin Ginsberg (44:51):
Yep, that's, that's what I mean about gathering the evidence
that would have been presented in 1000 orso lawsuits.
And really examining the evidencethat would have been behind those
complaints to see if there is a problem orit can be corrected.
So whether you agree with Donald Trumpon his charges about elections,
(45:14):
which I don't,I don't believe they're accurate.
But even if you do,now is the time to surface all that,
all that evidence and really try andaddress any problems.
>> Bill Whalen (45:29):
Yeah, well put.
Well, Ben, I think we should wrap this up.
I think, you know, there's a lotto be thankful in this holiday.
Season.I think you and
I should be very thankful forthe fact that we're doing a podcast which
contains relatively good news,as opposed to you and I.
When we first were scheduling this out, wethought we'd be sitting here in the middle
of December going through hell scenarioswith the constitutional crises,
an electoral count vote being challenged,and
(45:50):
states fighting eachother over the outcome.
We had a pretty grim view of whatmight happen, and you know what?
It didn't pan out, did it?
>> Benjamin Ginsberg (45:56):
Yeah, I mean, I think you can make dinner reservations for
January 6th now, Bill.
>> Bill Whalen (46:02):
Sounds good.
Yeah, you behave yourself on January 6th,Mr. Ginsburg, okay?
>> Benjamin Ginsberg (46:05):
[LAUGH] I will.
>> Bill Whalen (46:06):
Okay. Ben, I enjoyed the conversation.
I really enjoyed doing these podcasts withyou, and just thank you very much for
being part of the Hoover Institute.
You do great work, andit's really an honor to have you on board.
>> Benjamin Ginsberg (46:15):
Likewise, you do a great job with this podcast and
all the other ones you're involved with.
And Hoover is just a marvelousinstitution I feel really fortunate to
be affiliated with.
>> Bill Whalen (46:26):
I'm gonna remember that I need a lawyer when I'm in jail, Ben.
>> Benjamin Ginsberg (46:28):
[LAUGH ] >> Bill Whalen
listening to Saints,Sinners, and Salvageables,
the Hoover Institution podcastexploring America's election system and
the many challenges of the democraticprocess in these charged partisan times.
If you enjoyed this podcast,please don't forget to rate, review, and
subscribe to our show.
And if you wouldn't mind, spread the word.
Tell your friends about us.
The Hoover Institution has Facebook,Instagram, and X feeds.
Our Hoover X handle is @HooverInst,
(46:51):
that's H-O-O-V-E-R-I-N-S-T to be exact,@HooverInst.
If you wanna learn more aboutBen Ginsberg, you will find a very nice
biography at Hoover's website,you go to hoover.org to find that.
And while you're there, sign up forthe Hoover Daily Report,
which keeps you updated on what Ben andhis Hoover colleagues are up to.
That's delivered to your inbox weekdays.
For the Hoover Institution, this isBill Whalem wishing you all the best for
(47:13):
these holiday seasons.
Thanks for listening.[MUSIC]
[MUSIC]
>> Bill Whalen (00:09):
It's Wednesday, December 11th, 2024, and
welcome back to Saint,Sinners and Salvageables,
a Hoover Institution podcast examiningAmerica's democratic process and
the many challenges inherent in stagingelections in these charged partisan times.
I'm Bill Whalen, I'mthe Hoover Institution's Virginia Hobbs
Carpenter Distinguished Policy Fellowin Journalism.
You might recognize me from the Matters ofPolicy and Politics podcasts that I do.
(00:30):
You can find that and other excellentHoover podcasts at hoover.org/podcast,
I definitely recommend you check it out.
Joining me today, he is the godfatheractually of Saints, Sinners, and
Salvagables.
This was his idea back in 2022, soif you don't like it, blame him.
But it's a great idea andit's a great podcast, I think,
because he is a great guest, a great guyall around, a great fellow, dare I say,
(00:50):
my colleague Ben Ginsberg.
Ben is the Hoover Institution's VolkerDistinguished Visiting Fellow and
a nationally known political law advocatewho was involved in several projects this
past year involving electionintegrity in this election cycle.
He joins me today for this, the fourth andinstallment of Saints, Sinners, and
Salvageables for 2024 at least.
We're gonna talk about the end ofthe podcast, what the future holds for
this and Ben's other endeavors andelection integrity.
(01:12):
Ben, welcome back to the podcast.
Thanks, Bill.
Great to be here as always.
So to recap, my friend, in the firstepisode it was you and me talking about
the election from a 30,000 foot 11 level,what we thought might would happen.
I need to go back andscore about everything we got wrong, but
I think actually we didpretty well on that podcast.
It was okay.It was okay, again,
you can't get them all right.
(01:33):
Second episode, you took the helm,you were the moderator.
You did a really great jobinterviewing Justin Grimmer.
For those who don't know Justin,he's a Hoover Senior Fellow and
a Stanford University political scientistwho studies election integrity.
And he did something very cool this year,he actually traveled to Southern Oregon.
He got out of the Stanford bubble andwent and
watched how the locals handle voting andhow the voting system is challenged.
(01:55):
Third episode, it was me and Ben again.
We recorded about 32 hours afterthe polls had closed in Alaska.
We talked about what worked andwhat didn't work in this election.
I have to report it was a surprisinglyupbeat podcast with two guys, I think,
who were seriously sleepdeprived at the time.
And now here we are, Ben back again at it.
For our fourth and final episode.
(02:15):
Let me read you something that Joe Bidensaid, Ben, two days after the Election.
I want to get your thoughts on this.
Here's the president,he's still the president, by the way.
Quote, I hope we could lay to restthe question about the integrity of
the American electoral system.
It is honest, it is fair,and it is transparent,
and it can be trusted, win or lose.
Pretty noble words from the president,I think, but
also the kind of words you saywhen election is decisive, no?
>> Benjamin Ginsberg (02:37):
Yes, you certainly do, and this was a decisive election,
right?
All seven battleground statesmoved in the same direction for
Donald Trump by sufficient margins thatthere weren't recounts in any of them.
And, Bill, it's amazing what that did for
public confidence in the elections wherethere was a great deal of doubt about it.
(03:00):
With surprisingly low confidencerates by the American people
after the election results,it has been historically high.
There are polls out from Pew,Yankelovich Morning Consult,
an academic survey of performanceof American elections.
And all of them show that peoplebelieve the elections were run well and
(03:24):
the results were accurate.
A tremendous transformation.
>> Bill Whalen (03:29):
Let me phrase it to you this way, Ben.
You spend a lot of time talking toelection officials around the country.
You've done some greatconferences at Hoover,
bringing these guys out to talkabout what they go through.
As you've talked about themsince the election, Ben,
do they feel like they're good ordo they feel like they're lucky?
>> Benjamin Ginsberg (03:44):
Lucky, I mean, let's be honest about this.
The doubts about the election andthe system were carried in over 100
lawsuits that have been filedlargely by Republican entities.
But there were also a slew of democraticentities challenging some parts of
the election procedure.
(04:05):
The results were so decisive that noneof those suits had been carried on.
And there was no sort of upsetover the election results,
which is why confidence went up.
But nobody thinks that this is notwhat we'd call a cicada problem.
(04:27):
It's going to go back underground andthen reemerge at some point in the future.
And so those doubts probably need tobe addressed in the next few years.
>> Bill Whalen (04:41):
I wish you had said cicada, Ben.
I used to live in Washington as you do,and
I used to have a convertiblewhen I lived in Washington.
And I put the top down during cicadaseason and literally the things would fly
into your car and give you a heart attackevery time they'd fly in the car, so.
>> Benjamin Ginsberg (04:55):
They would, well, we dressed up kids as cicadas when they were
at a very tender young age,took lots of pictures.
They loved it.
They've really become family icons.
>> Bill Whalen (05:04):
Yeah, I wanna turn your attention, Ben,
to a state you're more than familiar with,Pennsylvania.
And something that happened asthe vote count was going on.
Pennsylvania, I think we could agreethis would constitute what is genuine
skullduggery.
If you look at the numbers right now,Trump won Pennsylvania, Ben, by I think,
about 120,000 votes or so,about a 1.7% difference.
(05:25):
So decisive.
But as the votes were being counted, theelection was still kind of being settled,
you had a controversy in Pennsylvania,and here's what happened.
The Pennsylvania Supreme Court hadruled before the election that
mail ballots lacking formallyrequired signatures or
dates should not be includedin official results.
So what happens?
Lo and behold, a Democratic senatoris trailing in his election.
(05:48):
And Democratic officials in Philadelphiaand Bucks County and Center County in
Montgomery County, these are the suburbsof Philly, they ignore the court order.
So, Ben, what happens whenelection officials go rogue?
>> Benjamin Ginsberg (06:01):
Well, what happened in this instance is what should happen.
The same thing that happened,for example, when election
officials decided not to certifyelection results after 2022.
The courts put them back in line.
So if election officials go rogue, whichis certainly what happened in this case.
>> Bill Whalen (06:25):
Yeah.
>> Benjamin Ginsberg (06:25):
It took the courts to say, can't do that.
And so the ballots thatthe Pennsylvania Supreme Court
said were not properlyverified were not counted.
And, Bill, you know,between what happened in Pennsylvania and
what happened with certifications in 2022,but all elections were certified in 2024,
(06:52):
the lawsuits that werebrought before the election,
with a lot of banging of the drum andare not continued.
It tells you that a lot ofthe rhetoric around elections,
which has caused the decline in trust forelections,
is really more about politicaltactics than deep seated concerns and
(07:15):
beliefs about the system.
>> Bill Whalen (07:17):
If you're on a campaign, Ben, and
let's put yourself in the situation.
So Senator Casey, who was involvedhere in Pennsylvania, his campaign.
If you're working on the Casey campaign,working on any campaign that's looking
this scenario, how do you legallyprepare for a situation like this?
Are you, are you game planning this work,aiming this ahead of the election, or
do you just kind of turn on the flyas the votes are being counted and
(07:39):
realize that we need legal avenues here?
>> Benjamin Ginsberg (07:41):
Even before Bush versus Gore,
when I was a young puppy of a lawyer,we always prepared for recounts.
And what that entailed and still entails,
is being sure that you have the law set,that you have personnel.
In all the polling places to be able toverify what's happening on election night.
(08:06):
And yes, you do game plan out what youmay do in a number of circumstances.
The game planning is more a goodmental exercise because you never,
ever get it right.
>> Bill Whalen (08:17):
Yeah.
>> Benjamin Ginsberg (08:18):
Which you're gonna be arguing.
And recounts are situationswhere the position you
take depends on whether you're winning orlosing.
If you're winning, you want to stopadditional votes from coming in because
you like the fact that you're winning.
And if you're losing, the name ofthe game is to loosen requirements so
(08:41):
that more votes come in so you standa better chance of gaining a lead.
>> Bill Whalen (08:46):
Yeah, now,
I know there was a movie done on the Bushwho played you in the movie, by the way?
>> Benjamin Ginsberg (08:52):
I think it was George Clooney, wasn't it?
>> Bill Whalen (08:55):
[LAUGH] >> Benjamin Ginsberg
it might have been a short, bald,bearded guy instead of Alabama.
Wonderful character, man.
Yeah, Brad Pitt was busy, right [LAUGH]?
>> Benjamin Ginsberg (09:03):
Yeah, that's right.
>> Bill Whalen (09:04):
Yeah, but no, I mean, people.
>> Benjamin Ginsberg (09:06):
DeVito was too blissful.
>> Bill Whalen (09:07):
People could go back and watch that movie and
see how things went down in that.
But you actually were there.
So actually tell us how this workedout as an attorney in terms of that
election night.
And you see this incredibly,ridiculously close vote in Florida and
just how the legal staff was kind ofgearing up just really on the fly there.
>> Benjamin Ginsberg (09:25):
And of course,
what happened in Florida 2000 was reallythe mother of all of all recounts.
That there would be a 537 vote marginin one state deciding a presidency
is something that was probably not on manybingo cards going into that election.
So as votes keep coming in andmargins keep narrowing,
(09:49):
you keep watching more andmore for what could happen.
And then at some point, you make thedecision, which is really the gut punch
in the stomach decision that youneed to prepare for a recount.
>> Bill Whalen (10:03):
Right. >> Benjamin Ginsberg
you send people into the state inall the relevant jurisdictions,
you start pulling the law.
You think very strongly howyou have to staff it up.
So the first decision the Bushcampaign made, for example,
was that James A Baker IIIwould run the effort.
(10:24):
The ultimate combination of scholar,lawyer, savvy political operative.
Right.
>> Benjamin Ginsberg (10:31):
Was the perfect person to do that.
And then you start building outan organization to handle the litigation
that's going to come.
The political operation of countingthe ballots, the communications
that you have to have to be able toexplain what's going on to people.
You need a ton of logisticalfolks to make everything happen.
(10:55):
You need fundraising because recountsare unanticipated expenses when
theoretically campaignshave spent all their money.
So you do the organizational chart forhow you're gonna carry that out.
But the real work, of course,is being sure that you have people to
look over the ballots and to bepresent whenever ballots are counted.
>> Bill Whalen (11:20):
And how do you work in terms of precedent,
Ben, if you maybe I watch toomany legal shows on tv, but
there's always a lawyer who's goingback into this room full of a million
legal books, and he orshe is always going back to precedent.
So as an election attorney,how do you fall back a precedent,
especially in a situation like Florida,which Renegart is unprecedented?
>> Benjamin Ginsberg (11:38):
Well, recounts are always.
>> Bill Whalen (11:39):
Well, recounts are triggered by, well,
recounts are automatically triggeredin most states by like 1% difference.
>> Benjamin Ginsberg (11:44):
Certainly in some states.
But all the precedents that take placein a state are covered in state law.
There is, there might be an equalprotection count in a recount case where
not all similarly countedballots are treated the same.
But by and large,the precedents that you look for
first are what's happened inprevious recounts in states.
(12:08):
Often they are not statewide recounts,they're more localized,
state legislative,maybe a statewide governor's race.
And so you need to take the precedence andlike you do for
any legal case,apply it to the facts on the ground.
The facts are generally, developed by thelawyers talking to people who have been in
(12:31):
the polling places on election day or areviewing the ballots as they're counted.
>> Bill Whalen (12:37):
Ben, do you pay much attention to what goes on in California in
terms of the election and vote counting?
>> Benjamin Ginsberg (12:43):
I do, in the same sense that I watch NASCAR races for
the Rex.
>> Bill Whalen (12:49):
[LAUGH] Okay, good analogy.
Here's what I'd like to talk to you about,California has a mess on its hands.
We can agree.
One election official calls the Californiavote counting process a pig and a python.
In other words, we have so many votes tocount, we've created a system that makes
it difficult to count,that it's hard to digest it.
(13:09):
And this is not a partisan observation.
It's just a problem with common sense.
And this year, Ben,state lawmakers came back to Sacramento.
New session began on December 2.
Not the formal new legislature, butthey came in a special second session,
December 2, the governor's request.
You were still counting votesin California on December 2nd.
So this is confusion and this is bad.
(13:30):
How did California get into this mess,Ben?
And how does Californiaget out of this mess?
>> Benjamin Ginsberg (13:37):
Well, the way you get out of the mess is to pass more
sensible laws.
>> Bill Whalen (13:41):
Okay. >> Benjamin Ginsberg
We'll get to that in
a minute, but let's explain how Californiain terms and explain to the audience just
in terms of California's gettingballots and how they count the ballots.
>> Benjamin Ginsberg (13:51):
Well, they count the ballots late.
California has moved tobecoming an all mail state.
So mail in ballots.
That means that people often dropoff mail ballots on election day.
And then California's law saysthat any ballot postmarked
(14:11):
on election day can be receivedup to seven days afterwards.
And then there are additionaltime periods for ballot curing.
And in other words,if a signature doesn't match or
a date is missing on an envelope,the voter can be called to correct that.
Mail ballots generally requirea lot more verification than if
(14:34):
somebody walks into the polls andcasts a ballot.
And so it is a combination of wanting toallow ballots to come in after a week,
after election day, andto have maximum cure times.
I guess the essential point isit's a balance right there is
(14:55):
wanting to count as many votesas is physically possible.
But that does come at a cost forhuge delays.
And what we saw in 2020is that delays between
the polls closing andgetting results is the petri dish for
(15:16):
election conspiracy viruses to spread.
Just imagine if California was the outcomedeterminative presidential state and
it was taken three weeksto figure out who won.
>> Bill Whalen (15:31):
Right, and the problem in California, Ben, is it takes a long time.
California was the last stateto settle a House election.
I believe it's about a week agoat this time it was settled.
And the problem in California,at least, and again,
I'm not being partisan here, is thatthese counts go on and they go on and
they go on and they invariablybenefit the Democratic candidate.
(15:52):
Again, it's a state that's2 to 1 democratic, so
common sense would dictate if youhave a lot of votes to count,
there'd probably be more Democrats andRepublicans voting.
>> Benjamin Ginsberg (15:58):
It's kind of a condescending attitude.
By Democrats to provideall these opportunities.
It sort of says there's something with ourvoters that they can't meet a deadline.
>> Bill Whalen (16:09):
I want to get to that in a second.
You're absolutely right.
It is kind of like you'retreating them like children.
But the problem is you hit it on the headhere when you see a vote count that gets
carried out for an extra month and thenumbers are just moving in one direction,
one party's direction.
If you're Republican, granted,this is California, Ben, and
Republicans really are kind ofthe downcast, trodden minority out here.
(16:30):
You just feel like the fix is in.
>> Benjamin Ginsberg (16:33):
Yeah, it is.
That delay is really harmfulto public confidence in
the election process as a whole.
And that's a real downside.
I mean, the way you get out of it isto change the laws that allow for
those long delays to take place.
(16:53):
You can open up if you want to.
If you're worried about deprivingpeople of opportunities, you can extend
the voting period before the electionto provide the same number of dates.
But a deadline is a deadline,and many states do call for
absentee ballots to be in on election day.
>> Bill Whalen (17:13):
Well, but here again, Ben, we're treating voters like children
because California mails a ballotto me a month before the election.
Do I need the ballot twomonths before the election?
Now, we're getting to a separate problem.
Let's say I get my ballot inthe mail two months beforehand, and
I decide to vote that way.
What if something incredibly awfulcomes out about the guy I vote for?
It turns out that he was a mastermindbehind the guy who got shot in
(17:34):
New York City or something like that.
I can't take back my vote, can I?
>> Benjamin Ginsberg (17:39):
No, you can't.
Although some states do haveprovisions where you can go in and
have your ballot pulled out.
>> Bill Whalen (17:47):
Yeah, but I just think.
>> Benjamin Ginsberg (17:49):
Not in California.
>> Bill Whalen (17:50):
Yeah, look,
you're giving voters 30 days to makeup their minds about something.
>> Benjamin Ginsberg (17:54):
You can do that, folks.
>> Bill Whalen (17:56):
Yeah.
You know, I spent some time onthe national association of Secretary of
State's website, Ben, andlooked into what various other states do.
And first of all,you see the problem that California has.
California has about 22 million voters,usually in a presidential election,
because we're just a huge state.
About 90% of those votes,Ben, are by mail.
This is the pig and the python.
You can't digest that many votesif you look at each one and
(18:18):
try to make sure the signatures match.
I looked up numbers forNew York state in 2020.
In 2020, Ben, California actually had 15.4million mail ball in that same cycle,
Ben, New York had 1.7 millionabsentee mail ballots as well.
So, you know,this is the California problem.
Just how dynamic it is.
But then I looked at Florida, Ben,and Florida does something that
(18:40):
I think California andother states have to consider.
The deadline for returning a mailballot in Florida, Ben, is when?
>> Benjamin Ginsberg (18:47):
I believe it's election day.
>> Bill Whalen (18:49):
Correct. You know, your elections,
it's election day in Florida.
We don't give like in Californiaan extra week to send it in.
You know, it shows up seven dayslater in California you still voted.
You got to turn it in an election day.
So this gets back to the Ginsburg theory.
Treat voters like adults.
>> Benjamin Ginsberg (19:03):
Yep, and I believe that there are only 12 states that
allow ballots to comein after election day.
But it was also Pennsylvania wasvery slow in counting its ballots
this year is that Pennsylvania'ssenate recount highlighted.
But generally, the count is slowin Pennsylvania in part because
(19:25):
the Pennsylvania legislature doesn't allowfor the preprocessing of absentee ballots.
So the count becomes very late.
Arizona was very slow because itallows voters to bring in absentee
ballots on election day, andthat always creates a huge backup.
>> Bill Whalen (19:45):
Ben, how would California put, choose your favorite saying here,
the horseback in the bar andthe genie in the bottle, if you will.
How does California kindof undo what it's done?
Because as you mentioned back duringCOVID California, like other states,
decided to go to mail in ballots.
There's a genuine health concern then, but
California has since madethat the permanent law.
So every election, every registeredvoter in California gets a ballot.
(20:06):
They're not going to undo that.
>> Benjamin Ginsberg (20:08):
No.
You're not going to unpeel mail ballot.
People like it.
People take advantage of it.
But you can have the deadline forreceipt of the ballot on election day.
That's a matter of changing a law.
The notice and cure provisions inCalifornia extend that even further.
(20:28):
There are certainly states that havenotice and cure provisions, which means if
your signature doesn't match orthere's a date that's missing, election
officials will call you up and tellyou to come in and change your ballot.
You can reduce the time period for that.
All in all, there are a numberof practical changes that can be
(20:50):
made to speed up the process.
>> Bill Whalen (20:52):
No, I have some friends, Ben,
who will tell you that money will solveall the problems, that if you simply spend
more money hiring more county electionofficials, that they can count faster that
if you spend more money on outreach,people will vote earlier.
Have you seen any studies or
any empirical evidence which would suggestthat a public service announcement will
encourage people to turn on the ballotsa week before the election?
>> Benjamin Ginsberg (21:12):
Well, I think a public service announcement right before
an election might be able toconvince people to do that.
The notion of hiring more peopleis not the issue, however.
>> Bill Whalen (21:23):
Ben, I don't know if you saw if there's a piece of the Atlantic
that ran the other day.
It's called the $100million election flop.
And what it focused on was a effort byelection reformers to go to a handful
states across America.
I find this reallyfascinating thing to read.
They wanted to change how electionsare done in Colorado and Oregon.
(21:44):
These are two pretty blue operations here,Nevada and Arizona,
which were two of the seven swing statesin this election, plus Montana, Idaho and
South Dakota, which are pretty decidedlyRepublican in national elections.
And what they wanted to do, Ben, was theywanted to bring in the Alaska approach to
voting, which is the socalled final four voting.
For our listeners andviewers who are not familiar with this,
(22:04):
Alaska has a rather unique voting system.
They hold an open primary,
meaning everybody from everypersuasion is on the same ballot.
And the top four finishers then advancetoward November, not two, but four.
Then voters decide the winnerby ranked choice voting.
And what was interesting to hear, Ben,was they tried this in blue states,
they tried this in red states and statessomewhere in between, and the idea bombed.
>> Benjamin Ginsberg (22:27):
Yeah, it certainly did.
It did succeed here in the People'sRepublic of the District of Columbia.
>> Bill Whalen (22:34):
Gosh.
>> Benjamin Ginsberg (22:34):
Which the Atlantic article did not report.
And Alaska held on just by a whisker.
>> Bill Whalen (22:42):
Exhibit.
>> Benjamin Ginsberg (22:43):
That system.
Nevada was in a position whereit passed two years ago but
had to pass a second time and that failed.
What's interesting aboutthis is that ranked choice
voting is a project that is being verymuch pushed by a group of elitists.
(23:06):
And I think you can explainthe sort of bipartisan rejection
of this as an effort by the elitesto change the laws under
which they're not capableof winning elections.
Instead of going out and
doing the hard grassroots work of gettingpeople to vote for your candidate,
(23:29):
they're proposing rules change tomake it easier for their folks.
So not surprising that it gets rejected.
>> Bill Whalen (23:38):
It sounds like you're not a fan of the system.
>> Benjamin Ginsberg (23:40):
I'm not a fan of the system.
I think ranked choice votingis far too complicated.
It is capable of being gamedby wily political operatives.
I think that it is sort ofa short-term solution at best,
and I think it is sufficiently.
Complicated that it favors the elites.
(24:03):
I mean, the Cambridge, Massachusetts CityCouncil has had ranked choice voting
about as long as any jurisdiction.
And more and more,it is sort of well-educated folks who
understand how to maneuverranked choice voting to vote for
all the candidates who end up being themost successful in electoral government.
(24:27):
I think the top two system or top foursystem is, in a sense, more interesting.
But on all the sort ofreforms that also include
things like proportionalrepresentation and
a number of other cures to the system that
(24:49):
are favored in certainacademic institutions.
I mean, all of them reallyattempts to change the rules in
a partisan fashion, in a mannerthat really is a substitute for
proponents of those reforms notbeing able to win elections,
(25:10):
not having their ideasuniversally embraced.
>> Bill Whalen (25:14):
To clarify, when you say top two system, you're referring to, say,
California, which is primary.
And the primary is,everybody goes on the same ballot and
the top two finishers, regardless of partyaffiliation, advance toward November.
>> Benjamin Ginsberg (25:27):
Yes, the theory is that this produces more moderate
victors andforces people to the center to be able
to get the majority of voters asopposed to people on the polls.
>> Bill Whalen (25:45):
Right. >> Benjamin Ginsberg
how's that going in California, Bill?
Well, let's don't let California hijack this,
cuz there are things I wanna talk about.
But let's spend a moment on it becauseit's created some very funny dynamics in
this state.
Let me take you back to 2018, forexample, when Gavin Newsom open seat,
Jerry Brown stepping down as governor.
And so Democrats,Republicans are lining up to run.
(26:06):
So Gavin Newsom, at the time lieutenantgovernor, he goes on to win the election.
He lives in fear of having toface Antonio Villaraigosa,
the former mayor of Los Angelesin the general election.
Why does he fear Villaraigosa?
Raigosa has high name recognitionin Southern California, Latino.
He's a player in California.
And Newsome doesn't wanna face this guy.
So what does Gavin Newsom do, Ben?
(26:27):
He spends a ton of moneyadvertising against whom?
Running negative ads against whom?
Not Antonio Villaraigosa, butthe most prominent Republican in the race.
Why?
Because his people come to the conclusionthat the more money we spend dumping on
the Republican, it's gonna raisehis numbers among Republicans and
he is gonna therefore finish second andI'll finish first.
(26:49):
If I can finish ahead of Villaraigosa andthat weak Republican
can finish second place overall,I then am gonna become the governor.
Why?Because in California, as I mentioned,
it's about a two to onedemocratic state in.
So this is one example where the top twoprimaries maybe not worked out that well.
And you're gonna see this again in 2026,depending on what Kamala Harris does,
if she runs for governor out or not.
(27:10):
It's very interesting, Ben.
You get a lot of aspirationalpeople lining up for an election.
And here in California right now,the governor's race, for example,
there are at least six people lookingat running right now, maybe more.
I've gotten, since the election,phone calls from three different people,
all ask me what I thinkabout their running or not.
It's just, when there's no good seat outhere because California governors tend to
(27:31):
get reelected, everybody wants to run.
But that's the problem, though.
It's encouraged Newsom and other Democratsto really just try to raise the profile of
the person they think isthe weakest opponent come November.
>> Benjamin Ginsberg (27:41):
Yeah, like I said, it's- It's not perfect.
It's a performer's cure that's gonnabe game pretty quickly by the political
operatives.
>> Bill Whalen (27:48):
Yeah, but this takes in a larger conversation for
another day about the merits of that,the merits of term limits and so forth.
But let me ask a question, my friend.
What is your favorite political movie?
Let me qualify that.
What is your favorite moviethat doesn't have you in it?
[LAUGH]>> Benjamin Ginsberg: [LAUGH] I've always
been partial to that classicThe Candidate, the Robert-.
That's what I was gonna say.
(28:09):
Thank you for reading my mind.
It's not a setup, folks.
I was gonna say The Candidate.
What is the last line of The Candidate?
>> Benjamin Ginsberg (28:15):
Ooh, I'm gonna leave that one for you.
>> Bill Whalen (28:18):
Well, let me see if I can jog your memory.
So the last line of The Candidate,let's spoil it for everybody.
But you know what,the movie's been out for over 50 years.
This is part of the beauty andthe charm of the movie.
It was filmed in 1972, released in 1972.
A very young Robert Redford who didn'tplay Ben Ginsberg later, but could have.
>> Benjamin Ginsberg (28:37):
Pretty. >> Bill Whalen
are eerie.Redford plays a very young aspirational
Democrat named,I think Bill McKay is his name.
This is how old the movie is.
He's running an uphill campaignas a Democrat in California.
He run against a verywell-established Republican senator.
And it's a very kinda cynicallook at how politics are waged.
He comes in as a young idealist, andhe quickly realizes that in order to
(28:59):
get elected, I gotta ditch the idealism[LAUGH] and just do what it takes to win.
And so it's him just doing allkinds of various campaign stunts.
But it's arguably the bestending of any political movie.
Why?Because it ends on election night when he,
spoiler alert, has probably won.
And you can appreciate thishaving been on campaigns.
They show what's goingon in his hotel suite.
(29:20):
Everybody's running around, his wife'stalking about where they're gonna get
a place in Georgetown and so forth.
And what Redford, the candidate,does is he gets his guru, his Svengali,
his campaign manager, pulls him aside,and they go to a quiet space,
they sit down, andRedford looks up at him.
These are the final words of the movie.
He goes, now what do we do?
[LAUGH] >> Bill Whalen
(29:41):
And it's brilliant because itpoints out that this is, sadly,
how a lot of electionsare played in America right now.
It's not what you're gonna do,it's just about winning.
So now what do we do?
That is a very long-winded way, Ben,of me getting to this question,
now, what do we do with electionintegrity, election reform in America?
Now, there are scholars who are busyat this, in addition to you.
(30:01):
For example, this group calledScholars for Electoral Reform,
who have actually written to Congress.
And here's what they want, andI quote, electoral system changes such
as proportional representation, expandingthe size of the US house, instant runoff
voting, fusion voting, open primaries, andindependent redistricting commissions.
Yeah, good luck with that.
>> Bill Whalen (30:21):
Yeah [LAUGH].
>> Benjamin Ginsberg (30:23):
Look, that's what I mean about elites who can't
win elections wanna changethe rules to favor themselves.
There are some of those reformsthat are probably pretty good.
But if you're going to change the rulesof the game, it has to be bipartisan.
And there is nothing, I think,bipartisan about that group.
(30:44):
So I think that the rules changesthat are being talked about will
not take place with a Republican Congressand a Republican President and
Mitch McConnell chairingthe Senate Rules Committee.
>> Bill Whalen (30:59):
I thought about McConnell, but that was my next question.
You want bipartisanship, but look, it'sRepublicans' games, Republicans' rules.
Granted, it's,what is the Congress right now?
It's what, 220 to 215 in the house.
But actually it's soon going to be 217to 215 when the members don't come back.
So good luck muscling stuff through.
But you look at that Congress, Ben,
(31:20):
what do you think they're gonnado in the way of election reform?
Or does this tie back to what wetalked about in the beginning,
that everybody's kinda calm right now?
>> Benjamin Ginsberg (31:28):
Well,
I think there may be a Republicanversion of election reform.
Remember when the Democratscontrolled all three branches,
they did the poorly-named Forthe people Act.
>> Bill Whalen (31:40):
Mm-hm.
>> Benjamin Ginsberg (31:41):
That was kind of a wish list of Democratic ideas.
That crashed because it hadtoo many ideas in it, frankly.
So that while it gained more supporters,that also gained more opponents,
and ultimately cratered.
>> Bill Whalen (31:57):
I think also history show that that was Kind of the beginning of
the end of Kamala Harris and that was kindof her first task as the vice president,
to shepherd that through Congress, and
it just->> Benjamin Ginsberg: Yeah.
Yeah, belly flopped.
>> Benjamin Ginsberg (32:07):
Didn't go anywhere.
I think Republicans might trya election administration type bill.
With things like voter ID,mandates to clean up the rolls,
amendments to the NVRA,the National Voter Registration Act,
which is pretty old anddoes need some help.
(32:30):
There might be some cybersafeguards in some legislation.
I mean, I do think that whilethe complaints about the conduct
of the 24 election went underground,that the issue is still alive.
(32:50):
But of course, the problem withany election bill in a new
administration is that Donald Trumphas a very robust policy agenda
that with those margins is notgoing to be easy to get through.
And so while I think theremay be a bill drawn up by
the House Administration CommitteeRepublicans on election reform,
(33:16):
it's not going to be a high priority andunlikely to go anywhere.
Of course, what happens in the statescan be an entirely different matter.
Although the political makeup of,
I think only the Michigan legislaturechanged in all the legislative races.
I do think that there is an opportunity,
(33:40):
not in the legislative arena,but rather in sort
of the policy area forTrump folks to explain the evidence
that they have thatelections are not reliable.
And to sit down andsee if there aren't a series
(34:00):
of things that can't be examined for
the flaws that are perceivedin the system.
With either corrections for that or
recognition that the system workspretty well no matter who wins.
>> Bill Whalen (34:17):
What about governors Ben?
Is it too kumbaya for me to think thatmaybe Josh Shapiro in Pennsylvania could
hook up with Ron DeSantis in Florida andjust a handful of red, blue and
battleground governors could get togetherand talk about common sense reform?
Or is this just not America in 2024?
>> Benjamin Ginsberg (34:35):
Well, I think they can talk about it as leaders of
a nationwide commission to offer ideas.
The election laws andthe system in Pennsylvania and
Florida are pretty different.
For example,Pennsylvania has a bottom up system where
each of the 67 counties has a hugeamount of independent authority.
(34:56):
Florida is a much more uniform state.
They only have one type of machine.
And while the counties in Florida do havea pretty large degree of independence,
it's not as much as in Pennsylvania.
>> Bill Whalen (35:13):
Right, well put.
Okay, getting back to Congress, let's sayCongress moved forward on voter ID, Ben.
I could see one ortwo ways to advance this argument.
One is the common sense argument that BenGinsberg goes to buy a bottle of booze in
the grocery store, they're going to askfor his id, even though clearly you and
I are a few years past age.
>> Benjamin Ginsberg (35:31):
Or a library book, Bill, that's library book.
>> Bill Whalen (35:33):
Or a library book, okay.
We'll put you on a higher plane.
Booze for me, library book for you.
Ben Ginsberg wants to rent a car,he needs to show an ID.
Ben Ginsberg gets on an airplane,he's gonna show ID.
You need to show identification to do mostanything in society, but not to vote.
So that's the common sense argument, Ben.
But is there a fraud argument?
In other words, could you, if you'representing this case to Congress,
(35:55):
could you point to fraud?
>> Benjamin Ginsberg (35:56):
Well, I can't point to instances of fraud.
What I can do is point tothe public opinion polls that show
that over 80% of the people favorvoter ID because it gives them
confidence that there aren'tineligible voters voting.
(36:17):
So I think that the factor that it raises,confidence in the institution
of elections is really the strongestargument for voter ID.
>> Bill Whalen (36:28):
Okay, all right, Ben, let's put you back out there.
In the 50 states, one election ends,another one begins.
There are people, as I mentioned inCalifornia running for governor in 2026,
this just never stops.
Let's start looking atthe system moving ahead.
I mentioned Bill McKay, Democratic icon.
Let's talk about another Democratic icon,Teddy Kennedy.
(36:48):
What did he say at the 1980convention in his swan song?
The work goes on, the cause endures,the hope still lives,
the dream shall never die.
I cannot do a Kennedy imitation,maybe you can.
But let's talk about the dreamshall never die, Ben.
What work remains to bedone on election integrity?
>> Benjamin Ginsberg (37:03):
It's building back public confidence in election results.
Again, this may be a magic timewhere both parties seem to
agree that this election was done well.
But I think we have to be honestthat the system itself is
not perfect,it is not built for precision.
(37:25):
We have over 10,000different jurisdictions.
That means the counting and
casting of ballots is going tovary as much as human nature does.
There's not 10,000 ofanything that will be secure.
There's a perpetual problemwith enough research and
development in the votingtechnology area simply because it's
(37:49):
a product that's used a couple of timesevery other year and largely not much.
There's a workforce problem.
The system is really fueled by people evenolder than me who volunteer for elections.
That problem has been exacerbatedby threats to election officials so
(38:15):
that fewer people are volunteering.
That's gotta be corrected.
There are a number of standardsof reliability and laws that can
be put in again to raise confidencethat the system is working properly.
So I think that you can doa number of reforms like that,
(38:38):
including a better voterroll maintenance system.
We're a very mobile society, so peoplemove from jurisdiction to jurisdiction.
There is a program thatonly about 30 states,
maybe less than that now, are a part of,
where they cross check their voterregistration rules to stop dual voting.
(39:01):
I think more robust participationin that would certainly help.
The slow count that wewere talking about before.
>> Bill Whalen (39:11):
Right.
>> Benjamin Ginsberg (39:11):
In California and some other states could be corrected.
So there are some improvements thatcould be made to the election system.
And the complaints that hascome from Republican officials
in the form of their lawsuitsshould be litigated.
If there's evidence of realproblems in the system,
(39:32):
we ought to get that evidence out onthe table and address how to fix it to
increase confidence in the institutionof American elections.
>> Bill Whalen (39:41):
Right now.
Voter ID law, Ben, that would be federaland that would apply to 50 states.
But are we talking about 50 statesolutions as well in terms of election
integrity, orare we back to square one and
hoping that the 50 statesindividually do the right thing?
>> Benjamin Ginsberg (39:55):
You're back to it being a system where the state States
really control.
>> Bill Whalen (40:00):
Right. >> Benjamin Ginsberg
federal ID for federal elections, butyou could also see a state saying,
well, you don't have to have photo ID for
our state elections because wethink it cuts back on the vote.
So the elections area is onewhere you do need bipartisan
buy in to common sense reformsto improve the system uniformly.
(40:27):
Yeah, I think where I'd see frustration would be you look at
a state like California,New York, Illinois.
The really big states have big votingpopulations, especially California,
Ben, where everybody'sgetting a ballot in the mail.
California needs to be constantlypurging its system and going through and
changing it.
I don't know how long welived in your house, Ben, but
I imagine when you moved in, there wasa period for several years where you're
(40:48):
still getting mail from the personwho lived there before you.
And eventually it goes away.
But you wonder in a state like California,just how long into the future are you
gonna be seeing people in onehouse getting multiple ballots?
I'm not playing dark conspiracy card oranything like that, but
just common sense dictates that you justneed to be scrubbing that thing constantly
because why?
You're right, people come andgo from addresses.
>> Benjamin Ginsberg (41:08):
Yeah, on mail ballots, which you're right,
is like the preeminent example ofsomething that just feels wrong to people.
Those ballots don't get counted becausethere are checks when the ballots
are received to makesure it's a valid voter.
But you're right, getting this ballotthat could be voted is something that
(41:28):
decreases confidence in the system,and that's why it's worth changing,
even if those votes are ultimatelyscreened before they're counted.
>> Bill Whalen (41:38):
But it jams the system, Benny.
But say, okay, the good news,the vote doesn't get counted, but
that means that poor Ben Ginsburg orBill Whalen has still had to waste
ten minutes of their lifescrubbing the darn thing.
>> Benjamin Ginsberg (41:47):
You are correct.
>> Bill Whalen (41:50):
Okay.
All right, let's talk now aboutwhat you're doing at Hoover.
What comes next for you?
>> Benjamin Ginsberg (41:54):
I want to take a look at this way that we can air all
the concerns aboutthe accuracy of the system and
be able to bring people from acrossthe political spectrum together to take
a look at what evidence may existthat there are real problems.
(42:15):
Part and parcel of that is the commonsense solutions we were just
talking about and trying to getsome bipartisan buy in for that,
maybe draft model legislation forthe states.
And I think on a longer term,we need to spend some time
reimagining our election systemto make it more accurate,
(42:38):
more reliable to give peoplea greater sense of confidence in it.
>> Bill Whalen (42:44):
All right, are you looking at other states, Ben, or
are you looking at other countries?
>> Benjamin Ginsberg (42:49):
Well, I think you gotta start this at home and
look at other states.
I think it is helpful to havesome comparativists tell,
tell you what's going on in other states.
>> Bill Whalen (43:02):
Right. >> Benjamin Ginsberg
rich history of the way wevote that I think it can.
Looking at other countries canbe informative for solutions.
But American exceptionalism isgonna prevail here and its ideas
that will come as opposed to usuallydo it the way they do it in X country.
(43:26):
Exactly.
Is there any one state you turn to?
I think on the last podcastI talked up Florida,
cuz Florida just impresses mewith just how fast they move.
And it's a big state, it's a complicatedstate given time zone changes and weather,
you name it.
Florida trouble alwaysseems to find Florida, but
Florida does their elections reallycleanly and quickly really well.
>> Benjamin Ginsberg (43:45):
I would give a lot of kudos to Georgia this time around.
It did a really good job.
I think the, you know,
North Carolina suffered fromthe hurricanes right before the election.
And actually, although they have onepainfully tight state supreme court race,
(44:06):
the system itself forcounting ballots really held up well.
Including in that tight race where allthe counts seem to have been accurate.
Michigan passed some new laws forthis year that seems
to have sped up theiraccounting considerably and
they all deserve a lot of credit for that.
>> Bill Whalen (44:30):
Okay, and then what about Donald Trump and his followers?
On election night when the election wasnot settled, Donald Trump was out there
saying that the fix was in in Philadelphiaand phony votes were being counted.
I think he said the sameabout Detroit as well.
Then suddenly the election wenthis way and he got very quiet.
But I think there's still that strain outthere that elections are still rigged and
it's us versus them.
>> Benjamin Ginsberg (44:51):
Yep, that's, that's what I mean about gathering the evidence
that would have been presented in 1000 orso lawsuits.
And really examining the evidencethat would have been behind those
complaints to see if there is a problem orit can be corrected.
So whether you agree with Donald Trumpon his charges about elections,
(45:14):
which I don't,I don't believe they're accurate.
But even if you do,now is the time to surface all that,
all that evidence and really try andaddress any problems.
>> Bill Whalen (45:29):
Yeah, well put.
Well, Ben, I think we should wrap this up.
I think, you know, there's a lotto be thankful in this holiday.
Season.I think you and
I should be very thankful forthe fact that we're doing a podcast which
contains relatively good news,as opposed to you and I.
When we first were scheduling this out, wethought we'd be sitting here in the middle
of December going through hell scenarioswith the constitutional crises,
an electoral count vote being challenged,and
(45:50):
states fighting eachother over the outcome.
We had a pretty grim view of whatmight happen, and you know what?
It didn't pan out, did it?
>> Benjamin Ginsberg (45:56):
Yeah, I mean, I think you can make dinner reservations for
January 6th now, Bill.
>> Bill Whalen (46:02):
Sounds good.
Yeah, you behave yourself on January 6th,Mr. Ginsburg, okay?
>> Benjamin Ginsberg (46:05):
[LAUGH] I will.
>> Bill Whalen (46:06):
Okay. Ben, I enjoyed the conversation.
I really enjoyed doing these podcasts withyou, and just thank you very much for
being part of the Hoover Institute.
You do great work, andit's really an honor to have you on board.
>> Benjamin Ginsberg (46:15):
Likewise, you do a great job with this podcast and
all the other ones you're involved with.
And Hoover is just a marvelousinstitution I feel really fortunate to
be affiliated with.
>> Bill Whalen (46:26):
I'm gonna remember that I need a lawyer when I'm in jail, Ben.
>> Benjamin Ginsberg (46:28):
[LAUGH ] >> Bill Whalen
listening to Saints,Sinners, and Salvageables,
the Hoover Institution podcastexploring America's election system and
the many challenges of the democraticprocess in these charged partisan times.
If you enjoyed this podcast,please don't forget to rate, review, and
subscribe to our show.
And if you wouldn't mind, spread the word.
Tell your friends about us.
The Hoover Institution has Facebook,Instagram, and X feeds.
Our Hoover X handle is @HooverInst,
(46:51):
that's H-O-O-V-E-R-I-N-S-T to be exact,@HooverInst.
If you wanna learn more aboutBen Ginsberg, you will find a very nice
biography at Hoover's website,you go to hoover.org to find that.
And while you're there, sign up forthe Hoover Daily Report,
which keeps you updated on what Ben andhis Hoover colleagues are up to.
That's delivered to your inbox weekdays.
For the Hoover Institution, this isBill Whalem wishing you all the best for
(47:13):
these holiday seasons.
Thanks for listening.[MUSIC]
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