What a Republican election superlawyer fears in 2022
There are some competing elements to the midterm election: Voters may be focused on the economy in 2022, but Republican victories in some states could have the effect of giving power to election deniers.
While multiple states passed laws intended to shore up election security, there’s a legitimate fear that those who believe, without evidence, there is election fraud could intimidate election workers or reject results.
I talked to Ben Ginsberg, the retired lawyer who was for many decades the go-to election law expert for national Republicans.
He has been critical of election denialism and is now working as a co-chair of the nonpartisan Election Official Legal Defense Network to give legal aid to election workers.
I asked about the threats election workers face, how to rebuild faith in US elections and how to square a vote for Republicans with opposition to denialism.
Our phone conversation, edited for length, is below, along with some context I’ve added in parentheses.
The threat of election denialism is still growing
WOLF: You’ve been involved in election law for many decades. You’ve been very outspoken after 2020 about the danger of election denialism. And I wonder if you think the threat is currently growing or diminishing from election denialism?
GINSBERG: Well, there are a lot of election deniers on the ballot. So I think you’d have to conclude from the number that are on, and the way they sort of banded together nationally, that the threat is greater.
The obstacles election officials are dealing with
WOLF: Tell me about your group, the Election Official Legal Defense Network. Millions of people have voted already. What are you seeing so far?
GINSBERG: The group is designed to aid elections officials when they’re under threat of prosecution or lawsuits. Over the course of this cycle, we’ve been far busier than we should be in terms of the number of election officials who are being threatened around the country.
We also know from the election officials we work with that there’s an unprecedented number of open records requests, which takes away time for preparing for the elections – although through perseverance and a lot of hard work, they seem to have gotten things ready for the election.
GINSBERG: There are some states where there are massive challenges to voter registration in particular counties, and so they need to sort through all of those as well.
(For context, read this other story from Schouten: “Conservative activists in Georgia wage campaign to purge voter rolls ahead of November’s election.”)
GINSBERG: But what we’re seeing around the country in real terms as people vote is actually a process that’s going pretty smoothly. That the early voting and absentee voting appears to be up above levels in 2018, last year’s election and even 2020 in some states with the presidential election.
The fear that early vote polling places would be paralyzed by overaggressive poll watchers slowing down the vote has not happened, to what I know.
WOLF: Are you currently getting calls from election officials at the Election Official Legal Defense Network?
GINSBERG: Yes, we are getting calls, but honestly, now elections officials are putting their heads down and getting ready for the election.
The fear is this
WOLF: Is there something that surprised you so far this year or something that you are anticipating or afraid might happen after Election Day?
GINSBERG: My fear is based on only anecdotal evidence so far, which is that groups will not accept the popular vote. … They will proclaim the election fraudulent and rigged and not accept the vote of the people. It’s at the rumor stage at this point, but extremely troublesome, and I think it’s what people are generally watchful for.
Beware of hyped problems
WOLF: Some ways that fear could manifest itself potentially might include refusals to certify elections, perhaps in Pennsylvania. You have counties in Arizona and Nevada that are going to have hand counting, which is not the good-government recommendation. Are there specific places that you have your eye on?
GINSBERG: Well, I don’t think it’s fair to say there are specific places other than where there are the most hotly contested races, especially if that overlaps with the 2020 battleground.
It’s where you anticipate the greatest problems.
Look, it’s a fine line that everyone needs to walk between being prepared for the rumors and the threats that are out there and scaring off people from voting because of those fears.
It is a delicate balance that I think all people involved in elections need to walk at this point, especially the media.
A lot of the things that we get very hyped up about are one incident that’s made into a much greater problem.
You have to be really cautious about hyping things up on the basis of, is it fear as opposed to facts.
One long line vs. systemic long lines
WOLF: What’s an example of a hyping? Something specific.
GINSBERG: Sometimes people in polling places are over-caffeinated. And there can be a heated exchange of words that draws a reporter who then puts out a story about there’s harassment at polling places, where in fact there was one incident in one polling place.
The example where I think many media outlets were guilty has been around long lines, where there are to be sure long lines in some polling places. And so the reports are about long lines and people waiting for too long, when in fact, if they had gone to all the other polling places around the ones with the long lines, they would see there were not long lines – which tells you that there was a particular problem in one polling place.
That is not a systemic problem of people having to wait too long to vote.
Just drill down a second more on that. The classic case is a jurisdiction that has 100 machines and 10 precincts. So, to be fair it gives 10 voting machines in each of the 10 precincts, except three of the precincts have shown far more rapid population growth than the others. So those few precincts will have long lines because the election administrator didn’t move around equipment to accommodate growth patterns in a particular area.
Well, that’s a long line problem, but it’s not a systemic attempt to deprive people of their right to vote.
To be clear, long lines are not OK
WOLF: But you do think long lines are a problem? Nobody should have to wait in a prohibitively long line, right?
GINSBERG: It absolutely is a problem, and it should never happen. The bipartisan Commission on Election Administration that I was a part of in 2013 said that no one should have to wait more than half an hour.
But there is a difference between saying one party or the other is trying to suppress the vote by creating long lines, when it’s one precinct within a jurisdiction where there’s a problem.
(Read more from that report, which was co-chaired by Ginsberg, who worked for the 2012 Mitt Romney presidential campaign, and Bob Bauer, who worked for Barack Obama’s presidential campaign.)
We are now in a tenuous phase
WOLF: These anecdotal issues combined with, you know, a media that’s really amped up and ready to report on stuff, combined with this growing lack of faith in the election system – it seems like we’re in sort of a self-fulfilling cycle that’s eating away at how people view the democratic system. Do you think that’s the case?
GINSBERG: That was a pretty broad statement. I think we are in a particularly tenuous phase right now, largely because of election denialism and not believing votes. In every election there’s going to be a winner and a loser, and sometimes that is breathtakingly tight.
But this country has always been based on the notion that people do accept election results they may not like. To just sort of say, without evidence, that elections aren’t accurate and are rigged does corrode the democracy a great deal.
A group of conservatives, of which I was a part, did a report called, “Lost, Not Stolen,” about every charge that (former President Donald) Trump and his supporters brought in the post-election period of 2020. We dove down into all their pleadings and all the cases.
(Read CNN’s story on the report, “Lost, Not Stolen”: “Prominent conservatives issue report rebutting Trump election claims.”)
GINSBERG: What was blazingly obvious from that deep of a study was that Trump lost those cases not because he didn’t get a day in court, but because he simply had no evidence of fraud and a rigged election. Yet you continue to hear that from candidates in 2022, and that certainly has a corrosive effect on the democracy.
Rebuilding faith in elections will start in schools
WOLF: Do you think there is a larger thing that we could and should be doing as a country to restore faith in elections?
GINSBERG: I think there are a number of things.
To start with, the biggest picture of all, there ought to be more and better civics education in schools so that people actually do understand the system and how it works.
I think it has become incumbent on local election administrators to, with a great deal of transparency, explain – especially to the election doubters, which is a very hard thing – but to explain to the election doubters all the safeguards that are in the system so that elections aren’t rigged and stolen.
The argument against a national voting standard
WOLF: I’ve heard the diffuse nature of American elections described as a feature because it makes them harder to influence. There are different laws in every state. It also makes US elections a lot more confusing. And people in some states have different access to democracy than others. Do you think there should be a more uniform national voting standard?
GINSBERG: I think what you just said is an overstatement. The country has been built forever on federalism and the idea that control of elections should be local. That’s what the Constitution says.
But to take it another step back, when we did the bipartisan Presidential Commission on Election Administration, it was me and Bauer as the two people with party affiliations. We talked to a great number of election officials … and what the election professionals drummed into us was the notion that one size does not fit all. That that simply doesn’t work.
It doesn’t work between different states because the states are different. It doesn’t even work for the same communities within the same state.
Elections will function best if there is local control, with perhaps a bit more uniformity in terms of machines used in a state and ballot design. And allocation of voting machines amongst them, but I think a federal standard would not work and is a thoroughly bad idea.
People are mostly not voting on election denial in this election
WOLF: I can imagine from your perspective you’d prefer Republican majorities in the House and Senate. But there is this root of election denialism that’s also behind a lot of what the GOP is running on. How do you square a political preference with the saving democracy mission that you’ve taken on?
GINSBERG: Me personally?
GINSBERG: I think the principle of elections is what’s really important. I think your question’s premise is a little bit wrong, because election denialism was more an ante that Republicans needed to win a primary. If Democrats do poorly, it’s because they responded so ineptly really on the economy, but maybe also on crime and immigration.
This election is in some races a referendum on election denial, but not every race.
I think it’s a black mark on the Republican Party if election denial continues to play as great a role as it does in the party, but I don’t think that’s why voters are voting.
Will GOP victories next month give new power to denialism?
WOLF: Let me put it a different way. Do you worry that Republicans winning majorities in the House and Senate and governor’s races will give new power to election denialism?
GINSBERG: I think it’s not the US Congress where that power will come from. Governors in some states, depending on what their powers are in that state – if Doug Mastriano wins in Pennsylvania and appoints the secretary of state, that’s really powerful.
There are other states where the secretary of state runs independently and the governor doesn’t play as large a role. But the question of election denialism is secretaries of state, to an extent, but also down at the county and local level, which are much more going to impact the issue of election accuracy and reliability.
Questioning one race on a ballot is questioning the entire ballot
WOLF: A lot of the election coverage this year is nerve-wracking, but it sounds like you’re relatively optimistic about this election so far.
GINSBERG: I would say I am wary but hopeful about this election.
What I have found is that election administrators are rising to the challenges, but there are greater challenges. And we’ve not had an election before where one political party has made as part of its kind of internal platform, election denial.
And I think that’s not very well thought out, because if you don’t believe in elections, then Republicans’ own elections are subject to challenge.
I don’t know what they think happens if they refuse to certify a governor’s race because they think there was fraud. That same fraud permeated all their ballots. The people in the state legislature who think they’re going to rule the roost, in fact, would also have tainted elections.
WOLF: And just to be clear, that’s hypothetical fraud and hypothetical taint.
GINSBERG: Yeah. If they make the allegations and try and say a governor’s race or a senator’s or congressional race is fraudulent – people mark ballots for multiple races at one time, including state legislative races. So, if there is fraud in one race, there has to be fraud in every race on the ballot – which throws potentially every race into doubt.