The Future Of Free And Fair Elections

Episode Summary

Executive Summary: Fresh Air’s interview with election-law scholar Richard Hasen argues that U.S. democracy is entering a high-risk period ahead of the 2026 midterms, with Trump using federal power, rhetoric, and election-rule changes to undermine trust, while courts and state institutions may determine whether voting rights, redistricting limits, and election administration remain durable.

Main Topics: Federal pressure on election data and administration: Hasen explains why DOJ requests for voter data from states are unusual in a hyper-decentralized system and warns they can fuel false fraud narratives and court battles over privacy and state authority. Trump’s proposed control over voting methods: The discussion focuses on Trump’s calls to ban mail-in ballots, voting machines, and to impose national voter ID, with Hasen emphasizing that presidents have no constitutional power to set election rules directly. Fear, delegitimation, and voter suppression effects: Hasen argues that repeated claims of fraud can demobilize voters, especially lower-income and less-educated voters, while also laying groundwork to dismiss Democratic wins as illegitimate. Redistricting, gerrymandering, and California/Texas: The interview explains how census-driven mapmaking works, why Texas’s mid-decade redraw matters, and how California’s Proposition 50 would temporarily replace commission-drawn maps with legislature-drawn maps to offset GOP gains. Voting Rights Act at the Supreme Court: Hasen warns that the Court may weaken or effectively gut Section 2 of the Voting Rights Act in Louisiana v. Calais, which could reshape minority representation and invite broader civil-rights backlash. Third-term talk and constitutional limits: Hasen says the 22nd Amendment bars a third term, but Trump’s speculation still matters because it keeps him politically central and signals a willingness to test democratic norms. Need for a modern constitutional right to vote: Hasen concludes that U.S. voting rights remain precarious and argues for a constitutional amendment to protect the right to vote in a 21st-century democracy.

Key Arguments: The U.S. election system is hyper-decentralized; states and counties run elections, and there is no national voter registry or identity system, so DOJ efforts to assemble one are structurally suspect. A president has no constitutional role in setting the manner of elections; Article I gives states and Congress the relevant power, not the executive branch. Claims that mail voting is broadly fraudulent are unsupported; serious fraud is rare and usually discovered through existing safeguards, audits, and investigations. Public accusations of fraud can themselves suppress turnout by making citizens doubt whether voting matters or whether the process is safe. Partisan election officials and county boards can subtly favor their party, which makes decentralized power both a safeguard and a vulnerability. Decentralization is now preferable, Hasen says, because concentration of power in the presidency is dangerous when a president is willing to violate norms and exploit legal ambiguity. A president cannot lawfully cancel or delay elections, but could still create disruption through federal power, emergency rhetoric, or military deployments. Rucho v. Common Cause leaves partisan gerrymandering largely unchecked in federal court, enabling states to redraw maps for party advantage. If the Supreme Court weakens Section 2 of the Voting Rights Act, minority communities could lose meaningful legal protection against discriminatory maps. The proper long-term response is a new constitutional amendment protecting voting rights more explicitly than current doctrine does.

Data Points: Midterm timing: a little over a year away - The 2026 midterms are described as imminent in political terms. States targeted for voter data: more than 30 states - DOJ is reportedly requesting voter information from multiple states. Election fraud lawsuits in 2020: over 60 lawsuits - Hasen cites extensive litigation after Trump’s fraud claims. Voting Rights Act case dates: 2013; 2019; 2022; 2026 - Shelby County (2013), Rucho (2019), Allen v. Milligan (2022), and the upcoming Louisiana case are used as legal milestones. Voting machines age: 25 years old - Hasen notes the voting machines in use are old, but not necessarily insecure by default. Congressional seats: 435 - He explains how reapportionment works after the census. Census cycle: every 10 years - Redistricting follows the decennial census. California temporary map change: 3 congressional elections - Proposition 50 would apply to 2026, 2028, and 2030 only. Potential California seat shift: up to 5 additional Democratic seats - California’s proposed maps would counterbalance Texas gains. Voting Rights Act enforcement share: over 90% - Hasen says most VRA cases have historically been brought by private plaintiffs rather than DOJ. Amendments to U.S. Constitution: 27 - He argues it is time for a 28th Amendment. Women’s suffrage organizing timeline: 40 years - He references the long campaign leading to the 19th Amendment.

Pivotal Quotes: "The President has no role in any of this." — Richard Hasen: On Trump’s claims of authority over election rules, voting machines, and mail-in ballots. "The president has no power to do anything related to elections, much less cancel them, reschedule them." — Richard Hasen: On the question of whether a president could delay or cancel federal elections. "This is a propaganda campaign meant to weaponize one party's base against democracy by claiming that their democracy has been taken from them." — Richard Hasen: On the long-term effect of election fraud rhetoric and ‘stop the steal’ claims.

Implications: The conversation frames 2026 as a stress test for U.S. democracy: courts, states, and voters will decide whether misinformation, partisan mapmaking, and executive overreach can erode election legitimacy or be contained by law and civic resistance.