Taking on one of the most urgent issues in American political and legal life, UCLA School of Law professor Richard Hasen has launched the Safeguarding Democracy Project to focus on ensuring that elections in the U.S. remain free and fair.
Hasen, a renowned election scholar who joined the UCLA Law faculty this month — 31 years after earning his law degree here — assembled a diverse set of scholars and election law experts for the project. They are united by the desire to fend off threats to free elections posed by false claims that the last presidential election was stolen and the controversial election audits and legislative proposals that followed.
Project board members include UCLA professors Lynn Vavreck and Adam Winkler, noted election lawyers Ben Ginsburg and Floyd Abrams, University of Michigan law professor Leah Litman, retired federal appeals judge J. Michael Luttig and NAACP Legal Defense and Educational Fund president Janai Nelson, who is a UCLA Law alumna.
The goal of the project is to promote research, events and advocacy aimed at ensuring election integrity. Hasen answered questions about the project and his return to UCLA.
Q: The advisory board for the project ranges from top UCLA faculty to prominent election law attorneys from both sides of the aisle. What is the shared sensibility that binds this group together?
A: The advisory board is diverse in every way — prominent liberals, conservatives, civil rights lawyers, political party lawyers, local and state election officials, journalists and leading academics from a variety of disciplines and ideological orientations. If you put these folks in a room and talked about substantive political issues, there would be little consensus. But all members of the board agree with the principle that we should have free and fair elections and that our democracy is currently in crisis thanks to the events surrounding the last presidential election, which almost disrupted the peaceful transition of power. We have come together to look at how we can strengthen democratic institutions, public confidence in elections, and the rule of law. The matter is urgent.
Q: One of the project’s first events will focus on the independent state legislature theory. What is the theory, and why the need for the discussion?
A: The Supreme Court announced recently that it will hear a case, Moore v. Harper, next term raising the issue and, as I told The New York Times, this is the “800-pound gorilla” of election cases. The issue is complex, so let me start with the facts. In the Moore case, North Carolina’s General Assembly drew congressional districts after the last census that heavily favored Republicans. The North Carolina Supreme Court (which has a majority of Democratic-supported judges) threw out the congressional maps, determining that they were a partisan gerrymander that violated the North Carolina Constitution. The General Assembly has now gone to the United States Supreme Court arguing that it alone has the power to draw congressional maps, and the power cannot even be limited by the state Supreme Court.
The argument is based upon Article 1, Section 4 of the constitution which gives each state “legislature” the power to set the rules for running congressional elections, subject to override by Congress setting different rules. The question in Moore is whether the use of the term “legislature” in the U.S. Constitution means the state’s ordinary legislative process or the state’s legislature acting alone. The Supreme Court in the past has understood the term to mean the broader legislative process, but under the “independent state legislature” theory, the state’s legislature could act alone.
If this theory is accepted, it would drastically take away power from state courts to protect voting rights, and let state legislatures engage in actions that could make it harder to vote. We also saw some parties relying on the theory in the 2020 presidential election, trying to use it as an excuse for state legislatures to submit alternative slates of presidential electors to Congress. That raises the risk of election subversion, as I recently wrote about in the Harvard Law Review Forum (PDF).
It’s unclear exactly what the Supreme Court will do, and we are bringing in leading scholars to discuss what the court can and should do.
Q: The project is planning a 2023 symposium called, “Can American Democracy Survive the 2024 Elections?” What is your answer to that question today?
A: I have never been more concerned about American democracy than I am right now. My concerns began before the 2020 elections, and I convened an earlier conference at UC Irvine, “Can American Democracy Survive the 2020 Elections?” I did not mean the question rhetorically. We convened an ideologically and methodologically diverse group of experts to make recommendations as to how to hold fair elections in 2020, and soon after we convened our first meeting, the world was hit by COVID-19. We spent the next months working on 14 recommendations in law, media, politics and tech contained in what turned out to be an influential report, Fair Elections During a Crisis (PDF). Many of the recommendations were followed, like the importance of the news media stressing that early returns did not necessarily reflect what the final vote totals would be. That was important in preserving voter confidence, especially as false claims of voter fraud and irregularities circulated.
The new conference will pick up where the old conference left off. Given the attempts to steal the 2020 election, our democracy is more vulnerable and so new recommendations are in order. The question is what can be done now to have not only free and fair elections, but elections that people can be confident were conducted freely and fairly.
Q: You earned your law degree and doctorate in political science at UCLA and recently joined the faculty after periods at Loyola Law School in Los Angeles and UC Irvine. What’s it like to be back home?
A: I am thrilled to be a Bruin once again. I have had wonderful teaching experiences and great colleagues and students at all the institutions that I have taught. But I believe that UCLA’s faculty and its resources, and particularly the strength of its interdisciplinary work, will help our work with the project preserve and protect American democracy at this crucial time. On a personal note, I love the UCLA campus and have friends and colleagues at the law school and across the campus. I cannot wait for the fall semester to begin!
Richard Hasen, professor at UCLA School of Law.
