DAVE DAVIES, HOST:

This is FRESH AIR. I'm Dave Davies. The midterm election is less than two weeks away. And for months, President Donald Trump has been warning that American voting systems are not to be trusted, including in his July primetime address to the nation.

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PRESIDENT DONALD TRUMP: Hundreds of thousands of noncitizens and dead people are listed and active on the voter rolls. And yet we still have elections with no voter ID, no proof of citizenship and tens of millions of ballots flowing aimlessly through the mail.

DAVIES: Trump has claimed that mail-in ballots may be forged, that voting machines can be hacked and that corrupt Democrats will conspire to steal votes, as he claims they did in his 2020 loss to Joe Biden. He's tried to affect the election by imposing new restrictions on registration and voting, requiring the Post Office to screen who can receive mail-in ballots and demanding that states purge thousands of people from voter rolls. Those moves have mostly been blocked by courts, but many election experts worry that Trump's claims are laying the basis to challenge the outcome of the midterms if results don't go his way.

Today, we're going to speak to two experts on elections. A little later, we'll talk to Al Schmidt, the chief elections official in the swing state of Pennsylvania. But first, we'll speak to Richard Hasen. He's director of the Safeguarding Democracy Project at the UCLA Law School and founder of the popular Election Law Blog. He's author of the book "A Real Right To Vote: How A Constitutional Amendment Can Safeguard American Democracy," now in paperback, and a forthcoming book, "Unbent Arc: The Rise And Decline Of American Democracy 1964-2024." We recorded our conversation yesterday.

Well, Rick Hasen, welcome back to FRESH AIR.

RICK HASEN: It's good to be with you.

DAVIES: You know, you've written that several attempts by President Trump to interfere with the coming election have been decisively defeated. One of them was an effort mostly by the Department of Homeland Security to get states to purge large numbers of people from their voting rolls - people the administration said they had identified as likely noncitizens registered to vote. That effort, it turns out, is still active, at least in California. But first, tell us what we know about where these lists of noncitizen voters came from.

HASEN: So the United States is pretty unique compared to other advanced democracies in that we don't have a national identity card. We don't have a national database of all of our voters. We don't automatically register our voters. So we face problems here in terms of knowing who is eligible to vote and, when they move from place to place, to change their voter registration.

So the federal government has some data on citizenship. It's got something called the SAVE database. We know that this database is not all that reliable. We also know that it's not all that up to date. So sometimes it might flag someone as a noncitizen who in recent months might have been naturalized as a citizen. And so the federal government has been using the SAVE database, as well as some other commercially available databases, to try to come up with a list of citizens that they're trying to have the states compare with their own state voter registration lists to take out people who are not eligible to be voting.

DAVIES: Right. And we should note that it's been reported that the Department of Homeland Security has had hundreds of agents scouring these various state voter lists to try and find these allegedly noncitizen registered voters, right?

HASEN: Yes. So they've been doing that. One of the problems is that there are many people with the same names. And unless you have really good, identifiable information like Social Security numbers and driver's license numbers, it's possible to make mistakes. So that's one of the reasons why the federal government has sued to try to get what are called the unredacted lists that have all of that personal information.

Most states - it's against the law to provide that information to anyone. And the federal government sued 31 states and Washington D.C. And so far, they're zero for 26 in their lawsuits to try to get these unredacted voting rolls. And that's in part because our Constitution doesn't give the federal government the power to run elections. It says that states run elections. Congress can pass statutes that govern some of the aspects of congressional elections, but there's no role for the federal government. And so here you have the Trump administration trying to intrude on what's traditionally been a state and local prerogative.

DAVIES: So in some cases, the federal government - the Department of Homeland Security - has given states actual lists of people and said, look at these people. You should purge them. How have states responded to that?

HASEN: Well, Nevada is a good example. So a few months ago, the Department of Homeland Security said they had identified hundreds of thousands of noncitizens across four different states. One of them was Nevada. There were 16,000 people on this possible list. It got whittled down to 185. And eventually, when state officials investigated, it went down to zero. That is, all of the 16,000 people who were identified either were not registered to vote or were eligible to register to vote.

In California, in that same report, the Department of Homeland Security, without providing the data, said that there were up to 190,000 noncitizens. Now, in the most recent actions in California, they've whittled that number down to 20,000. And so far, they've arrested 28. And it appears from those arrests that at least some of those people either were not registered to vote or did not break the law intentionally.

DAVIES: Right. And as I understand it, this list of 20,000 names that they wanted the state of California and officials in Los Angeles to check was simply provided to them on a thumb drive with a password on a sticky note? Is that right?

HASEN: Yeah. So it's worth taking a step back and recognizing how unusual this whole set of events is. So ordinarily, there's a lot of cooperation between the federal government and state and local governments in terms of administering elections. Now we have this very different situation where the states and localities are seeing the federal government as kind of an adversary that's been threatening state and local election officials with prosecution if they don't adequately police their voting rolls in ways that the Trump administration wants.

And the idea that in the middle of an election - you know, in California, ballots are already out. We're getting into the period of in-person early voting - that in this period that the federal government would send on a thumb drive, with the password on a sticky note, the names of 20,000 possible noncitizen voters and ask 48 hours for the state to agree to go through this list and purge voters - I mean, it's just incredible. It's not the kind of thing that ever has happened that I'm aware of.

And there's a federal law called the National Voter Registration Act. It's a law that was passed when Bill Clinton was president in 1993. And it says that states can't do these last-minute voter purges because doing so risks disenfranchising eligible voters.

DAVIES: Now, as you said, 28 people were charged with either having registered or voted as noncitizens earlier this week. Some were actually arrested and taken to court. Just tell us what that experience was like, as it's been reported.

HASEN: Well, it seems clear that this was a publicity stunt that was meant to back up the federal government's attempt to get an order from a judge - a temporary restraining order that would require California to go through this list and segregate out ballots from people who are on this list. So we know that a branch of the Department of Homeland Security did a 5 a.m. raid. There were helicopters, SWAT team to arrest a man in pretty bad health. He had recently had six surgeries. He was arrested and taken into custody. And eventually, four hours later, they told him what he was charged with. He has no idea what's going on here.

What we know from what the Los Angeles Times has reported is that many of these people don't even know why they were arrested. And in the case of the man who was taken in the predawn raid, it's possible that a relative who has the same name, who is a U.S. citizen, was confused for this person who was arrested, and it may be that it is the person who is allowed to vote, whose name is on the voter list rather than the person who was arrested.

DAVIES: And I believe it was reported that the four people who on the first day made their first appearance in court often appeared in, like, shackles - right? - leg irons in some cases, and then were released on their own recognizance.

HASEN: Yes. And the federal government tipped off the New York Post, which was given an exclusive to cover this. There were photographers from the Associated Press. This was clearly an orchestrated effort to make it appear that noncitizen voting is a huge problem. The headline at the New York Post talked about a network of people conspiring to commit fraud. But there's no conspiracy charge. There's no evidence that any of the people who were charged even know each other. So this really seems to be a show, which might be for various reasons, but it doesn't seem to be for legitimate law enforcement purposes.

DAVIES: And we should note that in many states, there have been cases where voters, when they got driver's license, as many immigrants have, were registered to vote, in some cases, without their knowledge, or at least it wasn't exactly clear that they understood they were being registered, right?

HASEN: Yes. So this takes a little bit of explanation. So the 1993 law the National Voter Registration Act, among other things, provides that state offices like Departments of Motor Vehicles, have to offer opportunities for people who get their driver's license or do business at the DMV to register to vote. When you are at the DMV and you are presented with the opportunity to register to vote, you're asked if you're a citizen. And sometimes you're asked on one of those PIN pads, which I know - at least here in California, they're sometimes hard to read. It's possible that someone mischecks a box, and they inadvertently get registered to vote.

We had a situation recently in New Jersey where because of an error by a vendor of software that the Department of Motor Vehicles there used, there were 6,000 noncitizens who were inadvertently registered to vote. Those people were sent registration materials. They were sent voting materials. We know that 400 of them voted. But that doesn't necessarily prove any criminal intent. In order to be criminally liable for violating the federal law against noncitizen voting, the federal government has to prove that you willfully violated the law.

Those votes, of course, are illegal, and they need to be removed from the voting rolls. But in terms of finding a large criminal conspiracy or, you know, some kind of effort to register noncitizens and get them to vote in a particular way, we just haven't seen that. The last credible allegations of something like this go back to the 1980s in California.

DAVIES: Another effort that you note President Trump made was to get the Post Office involved in the distribution of absentee ballots. What did he do? How did that turn out?

HASEN: So President Trump has issued two executive orders on elections. So in the first executive order, he tried to get a federal agency called the United States Election Assistance Commission to change the form that the federal government has for people to register to vote to require people to provide documentary proof of citizenship, like a birth certificate or a naturalization certificate, before they can register to vote. That effort was stopped by courts, which said that the president has no role to play in the conduct of elections. That didn't deter the president. He issued a second executive order in March of this year, and among other things, it created a whole system for the United States Postal Service to become the arbiters of which mail-in ballots they would accept from states. And it was very convoluted process.

First, it required the states to provide certain ballot envelope designs, and those had to be approved by the United States Postal Service. Then each envelope had to contain a unique machine-readable barcode so that each individual envelope could be tracked to know who it's going to. And then the state would have to upload a list of their voters. And the Postal Service would have to match the envelopes that are submitted by the state with the list of voters, and it would have to reject an entire batch of these ballots if there was any discrepancy between the list and what was on the ballots.

This was a very complicated system, but what made it particularly troublesome in this election is that the Postal Service hadn't gotten its act together. It had not set up the web portal that its own rules said it was going to set up for the states to upload their citizenship to the database. And what this would have meant is that the United States Postal Service would not have been allowed to accept even a single ballot from any state because no state would be able to upload its list of citizens. It took three trips to the Supreme Court to stop the United States Postal Service from putting into effect a rule that would have shut down mail-in balloting for the 2026 elections. Now, this rule is still in litigation, and there's a chance that it will be in effect for the 2028 elections. The court orders only involve the 2026 elections. But by 2028, presumably, at least the USPS will have a working portal so that states that want to comply would be able to.

DAVIES: Richard Hasen directs the Safeguarding Democracy Project at the UCLA Law School. We'll continue our conversation after a break. This is FRESH AIR.

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DAVIES: This is FRESH AIR, and we're speaking with Richard Hasen, director of the Safeguarding Democracy Project at the UCLA Law School and founder of the Election Law Blog. Let's talk about some other efforts that might be made by the president in the course of the midterms. One thing that's been written about is that he could declare a national emergency and thereby mobilize federal resources to intervene directly in voting. What about that prospect?

HASEN: Well, the president's already declared a national emergency at the southern border. When the president declares a national emergency, it unlocks certain powers for the president. But none of those powers are involving elections. So even if Trump declares a national emergency by falsely claiming, for example, that a foreign government is trying to interfere with U.S. elections, that still doesn't give the president the power over the administration of elections. If Donald Trump declared tomorrow that we're not going to hold elections, that would have no legal effect because it's not the federal government that runs elections. It's the states and the local governments.

And Trump was on a right-wing podcast. He was asked about this. And he just said something like, stranger things have happened. So, you know, kind of keeping the conspiratorial right satisfied that he's considering this, but I think it's extremely unlikely he would do it. And if he did, I don't think it would have any effect on how our elections are actually run.

DAVIES: Another fear is that armed law enforcement personnel will appear at polling places - like, particularly ICE agents. Can that happen?

HASEN: I believe there are three different federal laws that bar armed federal officers from appearing at polling places. So it would be illegal, and if it happened, I think it would be possible to get a court order against it happening.

But I think there's a more fundamental reason why I don't think it's going to happen. Remember, we're talking about a series of congressional elections and elections for Senate as well as for state and local offices. This is not like a presidential election where there's a battleground state, like we could say it all comes down to what happens in Pennsylvania or Wisconsin. There might be a very close election for Congress in Ohio or in California. There aren't enough ICE agents to send around.

And also, we saw the reaction of the public in Minneapolis when there were these surges of ICE agents to try to engage in immigration activities. I think it would be a big risk of a political backlash against the president if there was an attempt to try to physically stop people from voting or to intimidate voters by sending ICE agents to the polls.

DAVIES: Then there's the more extreme step of seizing ballots or voting machines. And I don't - this has never happened, and I - as far as I know - in an ongoing vote, right?

HASEN: I think if the president is going to try to interfere with the elections, he's much more likely to do so on the back end of the election rather than the front end. By the front end, I mean when people are actually going and voting, millions of people going to polling places. It'd be very hard to disrupt that. It would be very public.

What I'm more worried about in the event of a very close election for control of the House or Senate is that Trump's Department of Justice might try to interfere with the tabulation process - that's the counting of ballots - or the certification process, when state officials say, yeah, here's who the official winners are. And one way that the Department of Justice could potentially get involved is by trying to get a federal court order to seize ballots or seize voting machines. The reason we care about this is because Donald Trump has said that he regrets not seizing voting machines after the 2020 election that he lost to Joe Biden and contested.

Now, we did have a seizure of ballots in 2025 in Fulton County, Georgia, that took the ballots from the 2020 election, so a long-completed election. We also had Tulsi Gabbard, the former director of national intelligence, have the Department of Homeland Security seize voting machines in Puerto Rico that were then taken and looked at by federal government workers. But what we have not had is the seizure of ballots or a voting machine in a live election - one where the winner has not yet been determined.

When ballots or machines are taken out of the possession of election officials, you break what's called the electoral chain of custody. That is, one of the ways that we know that elections are free and fair is that the ballots are always under the control of election officials, and typically with transparency measures like cameras or other ways of observing, to make sure that no one is meddling with the ballots. If ballots are taken out of the custody of election officials, ballots could be added to or altered or taken away. It would be incredibly dangerous. It would require getting a search warrant from a federal judge.

And so one of the things that we've been doing at the Safeguarding Democracy Project, and others have been working on, is trying to educate judges. Judges know a lot about criminal law. They know a lot about search warrants. They don't know a lot about how elections are run. And so we're trying to explain the kind of irreparable harm that can happen if ballots are allowed to be taken outside the custody of election officials. There are ways to satisfy legitimate law enforcement purposes if there is, in fact, probable cause that a crime has been committed. There are ways to protect those ballots as evidence without breaking the electoral chain of custody.

DAVIES: We're going to take another break here. Let me reintroduce you. Richard Hasen is director of the Safeguarding Democracy Project at the UCLA Law School and founder of the Election Law Blog. He'll be back after this short break. I'm Dave Davies, and this is FRESH AIR.

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DAVIES: This is FRESH AIR. I'm Dave Davies. And we're talking about the potential effect of President Trump's repeated warnings of fraud in the midterm election, less than two weeks away. While Trump's attempts to impose restrictions on registration and voting have largely failed in the courts, some election experts worry that his claims are designed to lay the basis for challenging the outcome of the November 3 voting if things don't go his way. We're speaking with Richard Hasen, director of the Safeguarding Democracy Project at the UCLA Law School and founder of the popular Election Law Blog.

The other prospect that people are talking about is that after the election, that the clerk of the United States House of Representatives, who was appointed by the speaker, Mike Johnson, could refuse to seat Democrats in closely contested races. What's the check on that?

HASEN: Well - so to begin with, there's a political check. If, for example, the news organizations have said that Democrats have won enough elections to retake control of Congress - if the clerk, who is a bureaucrat, came in and said, well, no. These races are contested. We're not going to let these people be seated and get to vote for speaker of the House - I think that would be politically very dangerous. That would look like a literal coup d'etat. That is, it would be trying to turn an election loser into an election winner, in this case, through fraud.

If it did happen, which I think is very unlikely, I think there would be resort to the courts. And courts would come in. Now, ordinarily, a court wouldn't interfere with a congressional process. The - under the separation of powers, that would be a political question. But the clerk who works for the House is not the House. And so I think the courts could hear such a challenge. And it's extremely unlikely that, both politically and legally, this kind of move could happen if, in fact, the Democrats have easily taken control of the House.

Now, that leads me to a more general point about what we expect after November 3. It's all about the margins. If, in fact, we do not have a close election for control of the House or the Senate, I would be very surprised to see any attempts to try to wholesale change the results of the elections so that control of the House or Senate could flip.

If the elections are very close - for example, suppose that control of the Senate comes down to who wins in Alaska - Alaska, which takes a very long time to count their ballots because of their rural populations and where they use ranked-choice voting, which takes longer to tabulate results. If it comes down to one seat, then I think all bets are off. And then I'm very concerned that the Trump administration will try to do things to manipulate the outcome of the elections.

DAVIES: I know you've written about campaign finance. And the spending in this election is truly unprecedented by individuals. We've seen reporting that Elon Musk has pumped 276 million into the midterms, a figure that's probably out of date by now. Over 150 million has gone through a couple of transactions into the Texas state Senate race. What's this doing to our democracy? And what can we do about it?

HASEN: So there's been a real sea change since the United States Supreme Court decided the Citizens United case in 2010. Some of it is legal change - the creation of super PACs. But even the seeds for super PACs, which are independent groups that can raise unlimited sums from individuals, corporations and unions - even the seeds for that were planted in a 1976 case called Buckley v. Valeo. But something has changed psychologically on the part of big donors in that they're no longer shy about putting their money into elections.

And so just to give you some statistics, the first donor who gave at least $100 million to groups in a federal election was Sheldon Adelson back in 2018. We only had one or two people or couples in this category. A hundred million dollars - just an obscene amount of money for one person to be able to give an election.

By the 2024 elections, we had nine individuals and couples who fit into that category. And Elon Musk set the record with almost $300 million in spending. I think he's likely to exceed that in a midterm election, which is even more astounding, when typically the spending is much lower than in a presidential election year. It's a fundamentally unfair system in which we allow the wealthiest of Americans to have outsized influence not only over who's elected by increasing the chances that the candidate they support will be elected thanks to all of the campaign dollars, but also outsized influence over what elected officials are going to do once they're in office.

So if you are the recipient of Elon Musk's generosity, you're going to be very solicitous of his interests and what he wants to do. And if you're on the other side, you might fear doing something that might antagonize Elon Musk for fear that he could unleash really astronomical sums against you. And so the system - we might call it corruption. It certainly is an unequal system where the wealthiest among us are able to translate their economic power into political power.

DAVIES: And what's the prospect for doing something about it?

HASEN: The prospects for doing something about it in the short term are quite low because the current regime we have is the product of Supreme Court decisions, especially over the last 20 years. We have a very conservative Supreme Court that, on campaign finance issues, takes a very libertarian view of the First Amendment and sees most limits on money and politics as unconstitutional - as a violation of the rights of free speech and association.

So how could you change that? You either have to change the Constitution or you have to change the Supreme Court. Both of those things are very difficult to do. Actually, I think it would be probably easier to change the Supreme Court than to get through a constitutional amendment, which requires supermajorities in both the House and Senate and supermajority of states to approve a constitutional amendment.

So I think there's going to be a lot of pressure if Democrats retake the House and the Senate and the presidency in 2029 to try to deal with some of the issues related to our democracy, from campaign finance to partisan gerrymandering to the Supreme Court's evisceration of the Voting Rights Act.

DAVIES: Well, briefly returning to the election in front of us, you know, The Washington Post recently reported that a group of former national security officials are warning state election officials to be on the lookout for meddling and interference on November 3. I'm wondering what you're going to be doing that day and how you anticipate affecting this - following it, covering it.

HASEN: Usually Election Day is pretty quiet for me because things generally go smoothly. Of course, there's going to be someplace where there's a power outage and machines are not working, or a county didn't provide enough ballots to a polling place. There might be some last-minute skirmishing about whether polls need to be kept open an extra hour or two for people who were not able to vote. But it should be quiet on Election Day, especially because I think many people have been heeding the advice of election experts to vote early if you can. And I would say, if you're going to vote by mail, vote as early as possible or put that ballot in a dropbox or bring it to a voting center if that's allowed in your state. So hopefully it will be quiet.

It'll be the day after Election Day or a couple of days after Election Day when we'll really have a sense of whether or not we're going to make it through this period. And in 2020, I warned that we would have a real danger of an attempt to interfere with free and fair elections - a peaceful transition of power. And people said that I was too alarmist. This time around, as I see the bulwarks of our democracy - the states, the courts and the people - protecting free and fair elections, I'm more optimistic. And people are saying I'm too optimistic. So let's hope that it goes that way.

DAVIES: Well, Rick Hasen, thank you so much for speaking with us again.

HASEN: It was great to be with you.

DAVIES: Richard Hasen is director of the Safeguarding Democracy Project at the UCLA Law School. Since we recorded our conversation, there was another large political contribution. Michael Bloomberg gave $80 million to the Democrats. Coming up, we hear from Al Schmidt, chief election official in the swing state of Pennsylvania. This is FRESH AIR.

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