At long last, some parts of the Democratic and media establishment appear to have noticed that the push to vote by mail could lead to disaster. Axios:
Democrats spent the early months of the coronavirus pandemic urging their base to vote absentee. But as threats of U.S. Postal Service delays, Team Trump litigation and higher ballot rejection rates become clearer, many are pivoting to promote more in-person voting as well.
Why it matters: Democrats are exponentially more likely to vote by mail than Republicans this year — and if enough mail-in ballots are lost, rejected on a technicality or undercounted, it could change the outcome of the presidential election or other key races.
Duh. Why has it taken so long for the so-called smart people to figure this out? See also Chris Hayes on MSNBC last night.
Two things happened over the past couple of days that shook up the establishment. One was Barton Gellman’s Atlantic cover story, The Election That Could Break America. The other was that Trump once again spoke the quiet part out loud. This was Trump on Tuesday:
We need nine justices. You need that. With the unsolicited millions of ballots that they’re sending, it’s a scam, it’s a hoax, everybody knows that. And the Democrats know it better than anybody else. So you’re going to need nine justices up there, I think it’s going to be very important. Because what they’re doing is a hoax, with the ballots.
In other words, Trump is counting on the Supreme Court to declare him the winner. And yesterday he was even more blatant.
When asked on Wednesday about the potential public disturbances that could follow this year’s election, Trump said: “Get rid of the ballots, you’ll have a very transfer — you’ll have a very peaceful — there won’t be a transfer, frankly. There’ll be a continuation.”
“And the ballots are out of control,” he continued. “You know it. And you know who knows it better than anybody else? The Democrats.”
With less than six weeks to go before Election Day, and with over 250 COVID-related election lawsuits filed across 45 states, the litigation strategy of the Trump campaign and its allies has become clear: try to block the expansion of mail-in balloting whenever possible and, in a few key states, create enough chaos in the system and legal and political uncertainty in the results that the Supreme Court, Congress, or Republican legislatures can throw the election to Trump if the outcome is at all close or in doubt. It’s a Hail Mary, but in a close enough election, we cannot count the possibility out. I’ve never been more worried about American democracy than I am right now.
The worst case is that he [Trump] uses his power to prevent a decisive outcome against him. If Trump sheds all restraint, and if his Republican allies play the parts he assigns them, he could obstruct the emergence of a legally unambiguous victory for Biden in the Electoral College and then in Congress. He could prevent the formation of consensus about whether there is any outcome at all. He could seize on that uncertainty to hold on to power.
Trump’s state and national legal teams are already laying the groundwork for postelection maneuvers that would circumvent the results of the vote count in battleground states. Ambiguities in the Constitution and logic bombs in the Electoral Count Act make it possible to extend the dispute all the way to Inauguration Day, which would bring the nation to a precipice. The Twentieth Amendment is crystal clear that the president’s term in office “shall end” at noon on January 20, but two men could show up to be sworn in. One of them would arrive with all the tools and power of the presidency already in hand.
People keep wondering what happens if Trump refuses to concede. That’s not really a problem. Concessions are just a formality, anyway; the article linked above says the first concession in a presidential election happened when Willliam Jennings Bryant conceded the 1896 presidential election to William McKinley. It’s been a tradition ever since. But refusing to concede carries no legal weight. The real issue is that Trump is going to use the courts, state Republican legislatures, and everything else at his disposal to challenge the vote and the election results if they go against him.
A proper despot would not risk the inconvenience of losing an election. He would fix his victory in advance, avoiding the need to overturn an incorrect outcome. Trump cannot do that.
But he’s not powerless to skew the proceedings—first on Election Day and then during the Interregnum. He could disrupt the vote count where it’s going badly, and if that does not work, try to bypass it altogether.
There is a lot in the Gellman piece I didn’t know. For example, for 40 years, Republicans had been somewhat bound by a consent decree that kept them from employing a long list of voter suppression activities. But that consent decree was allowed to expire in 2018, and the gloves are off.
The order had its origins in the New Jersey gubernatorial election of 1981. According to the district court’s opinion in Democratic National Committee v. Republican National Committee, the RNC allegedly tried to intimidate voters by hiring off-duty law-enforcement officers as members of a “National Ballot Security Task Force,” some of them armed and carrying two-way radios. According to the plaintiffs, they stopped and questioned voters in minority neighborhoods, blocked voters from entering the polls, forcibly restrained poll workers, challenged people’s eligibility to vote, warned of criminal charges for casting an illegal ballot, and generally did their best to frighten voters away from the polls. The power of these methods relied on well-founded fears among people of color about contact with police.
This year, with a judge no longer watching, the Republicans are recruiting 50,000 volunteers in 15 contested states to monitor polling places and challenge voters they deem suspicious-looking. Trump called in to Fox News on August 20 to tell Sean Hannity, “We’re going to have sheriffs and we’re going to have law enforcement and we’re going to have, hopefully, U.S. attorneys” to keep close watch on the polls. For the first time in decades, according to Clark, Republicans are free to combat voter fraud in “places that are run by Democrats.”
Given recent current events, I don’t even want to think of what would happen if a bunch of white yahoo cops and vigilantes tried to harass black voters at the polls.
Trump may also try to bypass the votes entirely. The “safe harbor” deadline for validating results and choosing electors is December 8. If Trump manages to use legal maneuvers to stop the counting of mail-in votes, it’s possible some states will still be uncalled by then.
We are accustomed to choosing electors by popular vote, but nothing in the Constitution says it has to be that way. Article II provides that each state shall appoint electors “in such Manner as the Legislature thereof may direct.” Since the late 19th century, every state has ceded the decision to its voters. Even so, the Supreme Court affirmed in Bush v. Gore that a state “can take back the power to appoint electors.” How and when a state might do so has not been tested for well over a century.
Trump may test this. According to sources in the Republican Party at the state and national levels, the Trump campaign is discussing contingency plans to bypass election results and appoint loyal electors in battleground states where Republicans hold the legislative majority. With a justification based on claims of rampant fraud, Trump would ask state legislators to set aside the popular vote and exercise their power to choose a slate of electors directly. The longer Trump succeeds in keeping the vote count in doubt, the more pressure legislators will feel to act before the safe-harbor deadline expires.
And then there’s the issue of getting all the mail-in votes counted. Zoe Tillman, Buzzfeed News, last week:
President Donald Trump’s campaign and the Republican Party are devoting millions of dollars to wage a state-by-state legal battle against mail-in voting during the coronavirus pandemic, not only suing state officials but also intervening in cases where they aren’t a party to limit how Americans can vote from home.
BuzzFeed News identified at least 11 cases where the Trump campaign has asked judges for permission to intervene to defend state and local policies that voting rights advocates argue will make it harder for people to safely vote during the pandemic. That’s in addition to more than half a dozen lawsuits the campaign has filed with the Republican National Committee contesting efforts by Democratic governors and other state and local officials to expand mail-in voting. …
…Trump and the RNC have committed $20 million to fund election-related litigation. Trump told Politico in July that the “biggest risk” to his reelection was failing to successfully fight plans that would make it easier for voters to remotely receive and return ballots.
“My biggest risk is that we don’t win lawsuits,” Trump said at the time. “We have many lawsuits going all over. And if we don’t win those lawsuits, I think— I think it puts the election at risk.”
And even if you do show up at a poll and vote in person, in some states there will still be problems. There’s a relatively new controversy over a type of voting machine called “ballot marking devices” that could give Trump an excuse to contest those ballots, too. See Donald Trump’s Favorite Voting Machines by Art Levine at Washington Monthly.
The period after the election could see violence.Gellman:
The electoral combat will not confine itself to the courtroom. Local election adjudicators can expect to be named and doxed and pilloried as agents of George Soros or antifa. Aggressive crowds of self-proclaimed ballot guardians will be spoiling to reenact the “Brooks Brothers riot” of the Bush v. Gore Florida recount, when demonstrators paid by the Bush campaign staged a violent protest that physically prevented canvassers from completing a recount in Miami-Dade County.
I’ve predicted that one already. It won’t surprise me at all if armed Trump goons break into election offices to destroy uncounted ballots. Who is going to stop them? The police? The cops will probably help destroy the ballots.
How you respond to this depends a lot on where you live. If you live in a reliably blue or red state, you may be unaffected. Please do pay attention to your state news to find out what might be happening to keep your vote from being counted.
And if you can vote in person, preferably early, please do so. If Joe Biden has a substantial lead in key states on election night, we might avoid the worst of what could happen.
Update: The Department of Justice announced today that some military ballots marked for Trump were found discarded in Luzerne County, Pennsylvania. It’s not clear to me how these ballots were found, or who found them, or who has them now, or how likely it is that the military ballots for the November election would have been mailed back quite this early. Whatever. The DoJ announced it was investigating, although apparently the announcement has since been removed from the DoJ website. The Right is going ballistic, and I’m calling bullshit on the story. See also:
An investigation here may be reasonable. But there is NO legit reason for:
1) a DOJ press release on a pending investigation, that
2) announces a partial list of unconfirmed facts, including
3) the identity of one of the candidates on specific ballots.https://t.co/T92nz8tZpV
— Justin Levitt (@_justinlevitt_) September 24, 2020
Update: See also Paul Waldman, The Republican war on democracy is just getting started