Rick Hasen: SCOTUS Will “Reorder” American Society

CHRISTIANE AMANPOUR: Returning now to the U.S. Supreme Court in Roe versus Wade, if overturned it’ll be a political, legal, and cultural blast wave, as we’ve been discussing. But there are a number of cases before the court that our next guest says will, “Reorder law and American society”. Richard Hasen is a professor of law and political science at the University of California Irvine and an expert in election law. He’s also the author of “Cheap Speech” and he tells Hari Sreenivasan how to cure the disinformation that poisons politics.

(BEGIN VIDEO CLIP)

HARI SREENIVASAN, CORRESPONDENT: Christiane, thanks. Professor Rick Hasen, thanks so much for joining us. Last month you wrote, and I want to quote here, “I don’t think most Americans appreciate how much the Supreme Court is going to reorder law and American society in the next 15 months (that is, by the end of the term next year in June). Guns, abortion, affirmative action is just the start.” Well, we got a teaser, so to speak, of the leaked draft when it comes to abortion. What are the other big cases that you are watching?

RICHARD L. HASEN, PROF OF LAW AND POLITICAL SCIENCE, UNIV OF CALIFORNIA IRVINE: Well, the Court is going to decide about whether people have a constitutional right to carry guns outside the home, which could upset a number of gun control laws in cities and States across the United States. Not this term, but next term, meaning a decision by a year from June. The Court is going to decide a couple of affirmative action cases, one out of Harvard, one out of the University of North Carolina which could end the use of race-based affirmative action in education. The Court also is considering a major case this term involving the environmental protection agency. And what’s at issue there is the power of executive agencies to be able to carry on dealing with problems like climate change without, you know, very explicit authorization from Congress so it could kind of weaken the power of agencies. And then in my own area, there is a couple of voting cases that are coming down, not the end of this term but the end of next term. One which could severely limit the reach of the voting rights act as applied to redistricting. And another one that could upset the balance between state courts and state legislatures oversetting federal election rules. And that’s just the start.

SREENIVASAN: You wrote recently in a Harvard law review, and you had several different concerns that you were kind of looking at. And one of them was about — basically someone’s vote for president being almost structurally overturned and who administers the counting of those votes and whether something could prevent what we consider our vehicle to impose our will on democracy.

HASEN: So, this is something I never expected to worry about in the United States, the risk that we could have election subversion. But the person who gets the most votes won’t be declared the winner of the election. And this has become a real risk. One of the things that we saw in the aftermath of the 2020 U.S. presidential election is that so much of our rules for determining who the president is required people to act in good faith rather than just very strict legal rules. So, for example in Michigan, a board of two Democrats and two Republicans has to certify that the winner of the election is actually the winner. And there was great pressure on the Republican certifiers not to do so. One abstained and the other one has been — since been removed from this position. So, there’s a lot of places in between the time that voters vote and the time that Congress on January 6th finally determines who the winner is where people can try to mess with the system. And so, we know that Donald Trump tried to interfere. We know that he contacted over 30 different election and elected officials in the period after election day before January 6, 2021, trying to manipulate those results. And I’m afraid that that’s going to happen again in the next presidential election where we won’t have those heroic Republican and Democratic election and elected officials to stand up to Trump and say, we’re going to follow the rule of law.

SREENIVASAN: So, that is certainly something that is a consequence of what could happen during the midterm. I mean, the people who are elected into those positions to be the Secretary of State or the certifier at the local level, that’s — is that your concern here, that, that could impact the 2024 presidential election?

HASEN: Absolutely. So, let’s just take one example. You may remember the Secretary of State of Georgia, Brad Raffensperger. He’s the one that stood up to Trump, recorded the phone call where Trump wanted Raffensperger to, so-call, find 11,780 votes. Well, Raffensperger is facing a primary later this month in Georgia where one of his chief opponents is a Republican Congressman named Jody Hice who is one of the people who has embraced the so-called, “Stop the Steal” movement. Who’s embraced the big lie that the 2020 election was stolen. He could be the one running elections in Georgia in 2024. Even if he runs the election fairly, imagine it’s Trump versus Biden 2. And he says Trump has won the election. Are Democrats and people on the left going to believe him? And so, some of the crisis in confidence that we’ve seen on the right over election integrity ginned up by the false claims that Donald Trump made in 2020. We’re going to see that mirrored, I think, in some places on the left because some of the election deniers, the ones that in — the 2020 election wasn’t fair are going to be the ones actually running the election in 2024.

SREENIVASAN: As you mentioned, there’s a voting rights case coming from Alabama that looks at Section II. Why is that important and what is at stake there?

HASEN: Right, so back in 2013 in Shelby County versus Holder, the Supreme Court struck down that part of the voting rights act that has been in place since 1965 that required jurisdictions with a history of race discrimination and voting to get federal approval before they could make changes in their voting laws and demonstrate that those laws wouldn’t make minority voters wears off. And we were told when the Supreme Court decided that case, don’t worry, there’s always Section II. Section II is the part of the voting rights act that says that minority voters should have the same opportunities as others to participate in the political process and to elect representatives of their choice. Well, one shoe fell last summer in a case called Brnovich versus Democratic National Committee. That was a case where the Supreme Court read Section II very narrowly in outside the context of redistricting in the case of laws that make it harder to register or to vote. And now the other shoe is going to drop likely in this case out of Alabama. A three-judge court, a made up of two Trump appointees applying current Supreme Court precedents said that Alabama had to draw a second black- majority district because that group was large enough. And graphically located close enough to each other that they could actually create a district where they’d be able to elect a candidate of their choice against the kind of racially polarized voting that we see in Alabama. Well, the Supreme Court put that second district on hold. Chief Justice Roberts, who’s no fan of the voting rights act dissented there saying, let’s have a full hearing. The lower court applied the correct law but Roberts agreed with the majority that we need to rethink this whole thing. And the upshot is that it’s going to be much harder for minority voters to be able to sue and get districts drawn in order to be able to get a fair share of political power if the Supreme Court now takes Section II and does to it in the redistricting context what it did outside the redistricting context last summer.

SREENIVASAN: If the political climate is so divided that we have the possibility of our votes being overturned in a structural way by people who are elected, who believe that there’s a different winner. And if we see these attacks on the voting rights act succeed, I mean, is it fair to think that this is almost parallel to what happened in reconstruction? I mean, these seem like pretty big threats to democracy here.

HASEN: They are big threats to democracy. But I — you know, I don’t want to leave your viewers with the idea that all hope is lost. So, on the voting rights act, for example, Congress, if it had the political will and if there were large enough majorities, could actually change the voting rights act and make it clear that — what the Supreme Court is doing. Because the Supreme Court when it’s interpreting what Section II means is not making a constitutional ruling like it did back in 2013 on Section V. So, Congress can come back and strengthen voting protections. Democrats have been trying to get voting protections through for many months now. So, far unsuccessfully. It’s a little bit of a chicken and egg problem because as it gets harder to vote, it’s harder to elect the majorities who are actually going to support voting rights. But when you think about how voting rights expanded in this country, it’s only in recent decades that we relied on the courts to be able to strengthen voting rights. In many ways, it was a political movement, right. The 15th Amendment says, after the Civil War, no discrimination and voting on the basis of race. The 19th amendment says, no discrimination on the basis of gender in voting, right. That was about 100 years ago that women got the constitutional right, that was a political struggle. The Supreme Court refused earlier to say that women weren’t franchised by other parts of the constitution. So, this is going to have to be a political struggle. It’s going to be a difficult political struggle because these voting rules make it harder to get the, kind of, majorities that you need to change voting legislation. But, you know, I don’t think this is a time to give up. This is a time to double down on political action to try to protect voting rights.

SREENIVASAN: I wonder if part of the language that Justice Alito used in this leaked draft was hinting at the fact that — or not even hinting, as it was saying that times have changed. And I wonder if that same line of reasoning could be used to roll back lots of this sort of gains in terms of voting rights.

HASEN: Right. But — you know, that assumes that you have a fair voting process.

SREENIVASAN: Right.

HASEN: And if you don’t have a fair voting process the Supreme Court, in a very old case called, Yick Wo versus Hopkins said that voting rights are among the most important rights because they’re preservative of all other rights.

SREENIVASAN: Uh-huh.

HASEN: Now, if you don’t have the ability to vote, you know, you’re not going to have the same kind of clout to be protected in the political process. You know, one question that’s going to arise politically if the Supreme Court actually issues an opinion that looks like the Justice Alito opinion, what kind of political backlash will this create? Will people be concerned enough about the loss of abortion rights? And what it potentially means for the loss of same-sex marriage rights, new limits on contraception, potentially even opening up the ability of States to ban interracial marriage. I mean, there are all kinds of things that would be on the table if the Supreme Court issues an opinion like the one that was leaked, the draft opinion. What kind of political backlash will that create? That’s what we don’t know. One of the things we’ve seen is that over the last four to five decades, the right has been much more focused on the Supreme Court’s role in society than the left. I think that’s because in the Warren Court in the 1960s, there were a lot of decisions that liberalized things. Now, the Supreme Court is coming in and rolling things back. And the question is whether there’s now going to be an awakening on the left about the role of the Supreme Court in society. And how much in our country we delegate decisions about fundamental questions to this, you know, group of unelected nine-member life-tenured body of judges. Now, when Amy Coney Barrett came on to the court a couple of years ago, she was 48. If she lives as long as Ruth Bader Ginsburg, you know, she’ll be on the court for another 40 years. I mean that — it’s a long time to give someone power over these kinds of questions. And we’ll see politically what this means if, in fact, the Supreme Court is out of step with where a good part of American society is.

SREENIVASAN: You have a recent book out. It’s titled “Cheap Speech: How Disinformation Poisons Our Politics and How to Cure It”. First of all, what’s cheap speech?

HASEN: So, that actually goes back to a 1995 law review article that a professor at UCLA named Eugene Volokh wrote. He was talking about the upcoming information revolution. And saw that it was going to be much easier for people to share information and get information. Where we have the knowledge of the world is in the palm of our hands. I think it was a very positive view. That’s one meaning of cheap speech. But the other meaning of cheap speech, and I mean both of them in my book is that we have a system where lower- valued speech, like false statements, misinformation about vaccines or elections or whatever is much easier to spread and has an advantage in the information marketplace than higher-valued speech. It’s still very expensive to do good investigative journalism, for example. But the economic model that supported journalists, that supported local newspapers has collapsed as advertising has moved to Facebook and Google. And so, you have a situation where the market for information is kind of failing and it makes it harder for voters to get accurate information about what’s going on. And Exhibit A and where I start my book “Cheap Speech”, is by talking about the January 6th insurrection and the millions of people who believe the false claim that the 2020 election was stolen. I think if we had the politics of today but the technology of the 1950s, it would have been very hard for this lie to have spread. I mean, think about the fact that Donald Trump was able to go to Twitter 400 times between election day and November 19th, 2020 and spread the false claim directly without fact-checking, without any limit on his repetition, the false claim that the election was stolen. And so, the question is, how do you have a democracy that is committed to both robust free speech in an election and also fair elections where voters get accurate information? That’s really one of the key democratic dilemmas of our time.

SREENIVASAN: All right. So, that opens me up to say, what’s your advice then for the richest man in the world who is in the process of trying to buy a digital town square called Twitter? How does he strike that balance?

HASEN: Well, what he’s been saying is that he’s going to look to the first amendment as a limitation of, you know, what kind of speech should be on Twitter. And I think he’s going to be in for a rude awakening, at least, if he’s going to try and make money with Twitter. And given the billions that he and his allies are investing, I think they’re probably going to want to make money. But, you know, if there were no content moderation and anything to be put on these platforms, it would be filled with pornography, with hate speech, with spam ads for things. We wouldn’t want that, right? So, I’m not talking about what the government requires. I’m just talking about as consumers. We value good content moderation because that is what tells us. Just like “The New York Times” doesn’t print everything possible. PBS doesn’t just put on the air anything, it curates, right? And so, I think he’s not going to be able to have an unmoderated system. I think he’s going to be focused, mostly, on the question of political speech. And there, I don’t think Facebook and Twitter should be replatforming Donald Trump because he continues to be a threat to American democracy by undermining people’s legitimacy in the process of running fair elections. And by, you know, the fact that he didn’t condemn the violence of January 6, 2021, which was one of the most serious threats American democracy has faced in its entire history.

SREENIVASAN: Well, what kind of incentives can we create, either as consumers or any kind of legislative way for the tech companies to change the way they amplify information?

HASEN: I don’t know that there’s too much that can be done. It’s not the kind of thing that you can shut down because, you know, we don’t have good mechanisms to be able to decide who gets to speak and who doesn’t get to speak. So, I think just like “The New York Times” or Fox News gets to decide what content is on the air, it’s the same thing with these platforms. But that doesn’t mean they’re immune from public pressure. I mean, I think there’s a reason why Twitter and Facebook decided to deplatform Donald Trump after the violent events of January 6, 2021. And I think one of the key levers here are the employees who work for these tech companies. These engineers and other people are very much in demand. They’re not going to stand for a system that’s going to undermine democracy. And so, while I think consumers have some pressure that they can put on these companies because these companies are very large and they are not that subject to pressure, it’s the employees that can serve as an important tool to be able to assure that we have some moderation of contents that is dangerous to our democracy.

SREENIVASAN: Professor Rick Hasen from the University of California Irvine, thanks a lot for joining us.

HASEN: It’s been wonderful to talk to you.