This article is excerpted from Richard L. Hasen’s book, The Voting Wars: From Florida 2000 to the Next Election Meltdown.
The tweets were full of rage. As officials began to tally the results of the tight ballots, many voters suspected fraud. After all, there had been allegations of election misconduct before, as well as lost-and-found votes. Trust in government officials didn’t run high. By late in the evening, one opposition party leader came forward, accusing a local election official of “tampering with the results.” Fears of a political backlash rose. Soon there were even suggestions of violence.
The scene wasn’t the site of some Arab Spring-inspired revolution. It was Wisconsin in August 2011. Wisconsin residents had just voted on whether to recall a number of state senators, with the potential to flip the legislative body from Republican to Democratic hands. The vote totals were rolling in from polling places across the state, and I was following the reaction of hundreds of political junkies tweeting about the results using the hashtag #wirecall.
That evening provides a window into what the world could look like should we be unlucky enough to have our next presidential election as close as the 2000 presidential election. Wisconsin could be our future, and it’s not a pretty picture.
In 2000, just a few hundred votes out of millions cast in the state of Florida separated Republican presidential candidate George W. Bush from his Democratic opponent, Al Gore. The outcome of the election rested on Florida’s 25 electoral votes, and legal wrangling continued for 36 days. Then, abruptly, one of the most controversial Supreme Court decisions in U.S. history, Bush v. Gore, cut short the battle. But partisans learned that it is worth fighting tooth-and-nail over election rules. Since the Florida debacle, we have witnessed an ideologically fueled war over election rules. Election litigation has skyrocketed, and election time brings out inevitable accusations of voter fraud and voter suppression. These allegations have shaken public confidence, as campaigns deploy “armies of lawyers” and the partisan press revs up when elections are close and the stakes are high. Wisconsin shows us that social media is bound to make things much, much worse than they were in 2000.
By 2010, Wisconsin’s politics had already become among the most polarized in the nation. The election of Republican Scott Walker as governor and some of his early legislative initiatives—in particular, a new law curtailing the power of public sector labor unions—had contributed to the ideological rancor. After Walker’s victory but before the Senate recall elections, Wisconsin voters voted in an expensive and ugly state Supreme Court race that would determine the ideological balance of the court. The court at the time was mired in a partisan spat unconnected to Walker. Someone had leaked an internal court email from a few years earlier in which incumbent Republican Justice David Prosser called Wisconsin Chief Justice Shirley Abrahamson, a well-respected Democratic jurist, “a total bitch,” a claim that repeated again and again in anti-Prosser television ads.
On April 6, 2011, the lead between Prosser and his Democratic opponent Joanne Kloppenburg seesawed all night as returns rolled in. In the middle of the night, when it appeared that all the returns were in aside from some uncounted absentee and questioned ballots, Kloppenburg had eked out a come-from-behind lead of about 200 votes. The Wall Street Journal’s John Fund led a parade of conservative bloggers and Twitter users charging that voter fraud was responsible for Kloppenburg’s late surge.
But then the waters got murky. The next morning, Kathy Nickolaus, a Republican election official from Waukesha County who used to work for Prosser in the state legislature, announced that she had been storing her county’s election results on her personal laptop computer, and when she reported votes on election night she had inadvertently failed to include 14,315 votes from the city of Brookfield. With those votes included, Prosser jumped to a 7,300-vote lead statewide.
Fund and Republicans quickly dropped their cries of voter fraud, but Democrats and their allies immediately suggested chicanery by Nickolaus, who had previously been chastised for lax security with her ballots. The influential liberal blog “Think Progress” said that “critics” suggested the result must be from foul play or incompetence. The URL for the blog post was a little more blunt. It read in part: “kathy-nickolaus-crook-or-idiot.”
Ramona Kitzinger, the Democrat on the Waukesha elections board, at first vouched for Nickolaus, but the next day she issued a statement posted on a local Democratic Party website: “I am 80 years old and I don’t understand anything about computers. I don’t know where the numbers Kathy was showing me ultimately came from, but they seemed to add up. I am still very, very confused. …” Kloppenburg demanded a recount and an investigation. Eventually, given the margin of Prosser’s victory and no evidence of intentional wrongdoing by Nickolaus, Kloppenburg conceded.
Prosser did what everyone expected: He cast the deciding vote on the state Supreme Court to uphold the Wisconsin law limiting the collective bargaining rights of public sector unions. The collective bargaining rights case was so contentious at the Wisconsin Supreme Court that during the drafting of the opinions, Prosser and Justice Ann Walsh Bradley got into a physical altercation at the courthouse, which remains under investigation.
Things were just as heated outside the courthouse. Labor unions and Democrats, angry with Republican Gov. Scott Walker and the Republican legislature, started recall campaigns against state senators in an effort to flip the state Senate to the Democrats. They succeeded in qualifying six recalls for the state ballot. Republicans, not to be outdone, qualified two recall elections against Democrats for the following week.
The time leading up to the August 2011 recall election saw its share of voting controversies. A group affiliated with the conservative Koch brothers, Americans for Prosperity, sent absentee ballot applications to Democratic areas asking recipients to send in their requests for absentee ballots two days after the election was to be held. The requests were to be mailed to a post office box shared with other conservative organizations. Liberal blogs and groups publicized the mailing as an effort at voter suppression; an AFP spokesman called it a “typo” and added, “I’m sure the liberals will try to make a mountain out of a molehill in an attempt to distract voters’ attention from the issues.”
Results from the recall elections began to roll in shortly after 8 p.m. on Aug. 11, when the Wisconsin polls closed. Control of the state Senate hung on the race in Senate District 8, pitching incumbent Republican Alberta Darling against Democratic State Representative Sandy Pasch. For much of the night, the election results did not move. Pasch had a small lead over Darling, but 10 of 11 precincts from Kathy Nickolaus’ Waukesha County had not yet reported, and 12 of 51 Milwaukee precincts, typically a Democratic Party stronghold, had not reported either.
But the Twitterverse wasn’t going to wait for results; it soon lit up with conspiracy theories. From the left, Twitter messages sporting the #wirecall hashtag were quick to accuse Nickolaus of criminally interfering with the election outcomes. “Kathy Nickolaus should be jailed for vote tampering and voter intimidation by proxy.” “Waukesha County Clerk Kathy Nickolaus is either THE most incompetent clerk or a lying cheat!” “Will state of #WI get out their pitchforks&torches if Kathy Nickolaus rigs ANOTHER election?” “#WTF Is up with Waukesha county #WI I SMELL A ROTTEN FISH ! #Wiunion #Wirecall #FRAUD ! FIRE KATHY N NOW !”
The paranoia spread beyond Twitter. After Nickolaus reported most of Waukesha’s numbers, putting Darling comfortably over the top, a state Democratic Party official told the news media, “We believe there’s dirty tricks afoot.” The state chair released this statement on the party’s website: “The race to determine control of the Wisconsin Senate has fallen in the hands of the Waukesha County clerk, who has already distinguished herself as incompetent, if not worse. She is once more tampering with the results of a consequential election and in the next hours we will determine our next course of action. For now, Wisconsin should know that a dark cloud hangs over these important results.”
The paranoia on the right was just as great, but it was directed against the Democrats and the outstanding votes in Milwaukee. “Amusing that nobodys asking about MKE County being late. County with recent election fraud convictions. Waukesha is smoke screen #wirecall.” “Wait for the ACORN recounts and the absentee-voter fraud in #wirecall.” “Remember wisconsin, not only must we get more voters to vote, we have to win beyond the margin of liberal vote fraud. #wigop #tcot #wirecall.”
Pasch conceded after midnight, when it was clear the election was lost. By morning, Democrats had retracted their charges of vote tampering and removed the incendiary statement from their website. Not everyone approved of this capitulation. One person tweeted about wanting Nickolaus dead: “I wish I had a missile to shove up her fat ass! So I pray someone closer to her gets Wisconsin some justice! Now FUCK OFF!”
The Wisconsin story should provide pause for anyone worried about how this country could handle another election meltdown. And it isn’t some hypothetical scenario; we are in the midst of another close presidential election that will come down to a few swing states. If we have another razor-thin election going into overtime, the high levels of political polarization today almost guarantees that partisans will push hard for the losing presidential candidate not to concede the race, just as they pushed Al Gore to fight on in 2000.
But there are two big differences between Gore’s situation in 2000 and the situation a candidate will face in a future meltdown. First, the last decade’s Voting Wars have made partisans less likely to trust the results of a close election and more likely to believe that litigation could succeed in reversing the losing candidate’s fortunes While there used to be fewer than 100 election cases nationwide on average each year, the number has more than doubled and it peaks in presidential years. Candidates litigate early and often, and Florida 2000 still reverberates among the political elite. Second, as Wisconsin showed, social media like Twitter will fan partisan flames in ways we did not experience in 2000.
There is no shortage of sparks for this powder keg. The pretext could be vote counting machinery, partisan election officials, provisional ballots, absentee ballots, claims of voter fraud or voter suppression, unclear rules—everything would be up for grabs. And the fight would almost certainly be happening in a battleground state, where emotions would already be high because the election contest would have been fought the hardest there for months.
We should not forget the emotional aspect of these disputes. There is a feedback loop between close elections and the Voting Wars. The Voting Wars undermine voter faith in election results, especially among partisans. This makes it more likely that candidates will see less downside in challenging every close election in court. The pursuit of those remedies exposes more flaws in how we conduct our elections and inflames partisan emotions. That further undermines faith in our elections and makes candidates even more willing to go down this path.
Social media, including Twitter and political blogs, both increase the chance that a candidate would litigate rather than concede in the razor-thin election, and increase the chances of extreme nastiness after the vote is tallied up.
Social media seem to exacerbate the dangers of an enclave mentality. Today, thanks to Twitter and the Internet, people are encouraged to get their news only from like-minded sources that reinforce their existing worldview. These media inhibit the democratic deliberation necessary for political compromise. Back in 2000, when the Florida story was at its height, it took what felt like an interminably long time for any news outlet to post the Supreme Court’s opinion in Bush v. Gore. (I accessed it slowly over a dial-up connection.) Opinions about the controversial opinion were formed gradually and disseminated by elites: the major television and cable news networks and the leading national newspapers.
The Internet obviously provides many more outlets for individual expression than ever before. Anyone can have a Facebook page, blog, or Twitter account. Many important political blogs allow users to have publicly available “Diaries.” Comments appear on virtually all of these media. Everyone is a publisher; everyone is a critic. The technology for mass publication about our political disagreements or election disputes has emerged just as trust in mainstream media has decreased and partisanship has spiked.
Of course, some people have always held extreme opinions and felt paranoia about how elections are run. But those opinions were often sent as letters to the editor that never saw the light of day. Now anyone with a cellphone can broadcast to the world that the Waukesha County elections clerk should have a missile shoved up her ass. The enclave can be ugly, and it allows people with extreme opinions to reinforce and legitimate each other.
Even when it is not personal and offensive, social media can shape public opinion during election disputes. The Internet allows for a kind of crowdsourcing of every decision made by every election official and judge. People can second guess every challenged ballot, piece of voting machinery, election official delay, and judicial opinion. While it sounds democratizing, much of this analysis is not particularly thoughtful or well-considered. In a world in which it is increasingly hard for people to accept objective truth—think of the idea that President Obama is a Muslim or that President Bush caused 9/11—a million comments about an election meltdown in a million partisan echo chambers sounds scary.
It’s not just our gut that tells us to be concerned about these trends. A study by scientists at the Center for Complex Networks and Systems Research at Indiana examined more than 250,000 tweets on politics from the six weeks leading up to the 2010 U.S. congressional elections. Not surprisingly, the researchers found that Twitter users used “retweets” (reposting someone else’s message) in a highly partisan way. Approximately 93 percent of right-leaning tweeters and 80 percent of left-leaning tweeters retweeted from other users with whom they agreed. Tweets that included “mentions” of other people (which were far less frequent than retweets) linked to a more ideologically balanced group of tweeters—Democrats would mention Republican tweets and vice-versa. The use of common hashtags by Democrats and Republicans (like #wirecall in Wisconsin) had the effect of exposing users to ideas with which they were likely to disagree.
The Indiana authors found that exchanging messages across the ideological divide in this medium did not lead to moderation. Instead, the authors saw what I saw in the #wirecall thread: “Many messages contain sentiments more extreme than you would expect to encounter in face-to-face interactions, and the content is frequently associated with disparaging of the identities and views associated with users across the partisan divide. … [T]hese interactions might actually serve to exacerbate the problem of polarization by reinforcing pre-existing political biases.”
During a political battle, to know you is to hate you, especially behind the relative anonymity of the Internet.
It’s a mistake to dismiss the emotional content of political tweets and blog posts as merely people blowing off steam. The ideological echo chamber of Twitter, political blogs, and other social media reverberates to elites in the mainstream media, campaigns, and elsewhere, fueling greater partisanship. When the Democratic chair in Wisconsin retracted his statements accusing Waukesha County election official Kathy Nickolaus of “dirty tricks,” he blamed his initial comments on the “heat-of-the-moment.” If Romney-Obama goes into overtime, the “heat of the moment” could last a very long time, as Twitter-fomented anger causes people to spill into the streets. At that point, comparisons between U.S. election controversies and political uprisings overseas may not seem like such a stretch.
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