Editor’s Note: This article was written before the finalization of the election results, which declared Donald Trump the winner. In his discussion, Richard Hasen discussed the possibility of a close race and potential outcomes/litigation if the 2024 election were to be tightly contested.
Pepperdine Caruso School of Law continued the monthly Dean Speaker Series on Oct. 30, with lawyer and Election Law Expert Richard L. Hasen. He spoke on the uniqueness on election litigation during the 2020 election and possible points one might see during the 2024 election.
Hasen is the Gary T. Schwartz Endowed Chair in Law and professor of Political Science at UCLA School of Law. He has published over 100 articles regarding election law and has been published in journals such as Harvard Law Review and Stanford Law Review. He served as a CNN Election Law Analyst in 2020 and an Election Law Analyst for NBC News/MSNBC in 2022.
Hasen began his discussion by distinguishing how America differs from other countries in elections, ultimately leading to explaining unique election litigation within the States.
“Polarized politics are not unique to the United States, but what’s unique in the United States is fights over election rules,” Hasen said.
There are about 8,000 simultaneous elections per president at the county level, Hasen said. This becomes a footstool for changing the rules and election litigation. Hasen pointed out how the rate of election litigation has nearly tripled post-2000 compared to pre-2000.
“In very close elections, the rules of the game can make a difference,” Hasen said. “So, if it’s going to come down to a few hundred votes, it’s worth fighting about those votes.”
The Distinctive Nature of the 2020 Election
Hasen continued by explaining how the 2020 election was different from other national elections, due to both COVID and Donald Trump.
COVID caused many states to change their election rules, according to Hasen. He explained how in 2020 Pennsylvania extended the deadline for the receipt of mail-in ballots by three days, due to the U.S. post office being delayed. The Pennsylvania Supreme Court allowed this under the Free and Equal Clause of the Pennsylvania state constitution. Republicans then went to the U.S. Supreme Court and argued that it was unconstitutional.
“Fortunately, the difference between the candidates in Pennsylvania after the election was 80,000 votes, so we didn’t have the Supreme Court weighing in,” Hasen said. “But the Supreme Court could have weighed in on this theory, could have determined the outcome of the election if it all came down to Pennsylvania ballots.”
Hasen said Trump is another reason why the 2020 election consisted of unique litigation.
“Part of what we saw in the 2020 election, not in the courts, but in politics, was an attempt to try to overturn the results of the election by manipulating the rules of an 1887 law called the Electoral Count Act, which basically gives directions to Congress as to how Congress is supposed to count electoral college votes,” Hasen said.
Trump filed over 60 lawsuits claiming election fraud and won only one, which granted a minor adjustment to the counting procedures in Pennsylvania, according to Campaign Legal Center.
Hasen’s Opinion on Litigation in the 2024 Election
Hasen explains his three reasons for not being worried about litigation affecting the outcome of the 2024 election.
His first reason is due to the Electoral Count Reform Act (ECRA), which was passed in 2022 as a rendition of the 1887 Electoral Count Act.
The ECRA states that states can’t come forward with alternative slates of electors claiming fraud, according to Protect Democracy. It also clarifies what the governor can and cannot do in terms of elections and gives a right to sue in federal court if the state is disenfranchising its voters by not certifying the results of the election.
ECRA was passed under a bipartisan Senate and a slightly controlled Democratic House, Hasen said.
“I’m a little less concerned about what might happen post-election this time because this law is passed, and it clarifies things,” Hasen said.
Hasen also explained Moore v. Harper, a 2023 Supreme Court case, and how it alleviates heavy litigation for this election.
Moore v. Harper rejects the independent state legislature theory, which states that state legislatures hold individual power to create election laws for their respective states, irrespective of state courts and governors. This case derived from North Carolina, where in 2020, the state court found the legislature guilty of drawing extreme district lines that were in favor of the Republican party, according to the Brennan Center for Justice.
“We should understand state legislatures’ power as within the role that they play in states,” Hasen said. “That also takes away this idea of this kind of extreme legislative power, for example, to overturn the results of an election.”
The final reason is that Hasen believes that the people are more “vigilant,” he said.
“People are paying attention to these issues,” Hasen said. “I wasn’t that surprised by what happened in 2020, but lots of people were, and I think now everyone’s on guard.”
Expectations for the 2024 Election
Hasen closed with his opinion on how this election will result, in terms of election litigation. He expressed his lack of surprise if there were to be an electoral college blowout favoring either Trump or Harris. However, Hasen warned of a possibility if the race was close.
“If it’s very close, and we have Bush versus Gore style warfare, where the margin of error in how the election is run exceeds the margin of victory, then all bets are off,” Hasen said. “Then it’ll be totally litigated, it’ll be very ugly, it’ll be much worse than 2000 because we’re more partisan.”
Hasen believes that this election will be an emotional time for the nation, regardless of the result.
“Law is only as strong as people’s willingness to obey the law,” Hasen said. “And if people are going to be totally lawless, then we’re out of luck. Then we’re out of the election law world.”
Hasen offered a few words of encouragement to all who were weary of these upcoming weeks.
“Everyone needs to breathe, everyone needs to be patient,” he said. “We are going to make it through this, but it may be bumpy along the way.”
The last Dean speaker series of the fall semester was Thursday, Nov. 14. The series will continue in the spring.
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Contact Shalom Montgomery via email: shalom.montgomery@pepperdine.edu
