A Perfect Storm for Democracy

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In my previous post, I expressed my concern that a deliberate slowdown of mail delivery by the US Postal Service could interfere with the integrity of our presidential election. Now that I’ve read “The Election That Could Break America,” Barton Gellman’s cover story in The Atlantic, I think I may have understated the problem. The shenanigans at the Post Office may only be the tip of the iceberg of efforts to thwart the will of the voters.

Consider how the following factors may come together:

  • a traditional pattern in which low turnout tends to favor Republicans
  • an ongoing Republican effort in many states to make it harder for people to vote
  • an autocratic president who will not accept an election result as valid unless he wins
  • a pandemic that discourages in-person voting, especially among voters who take the virus seriously
  • a clear preference for mail-in ballots among Democrats
  • an attack by the President and his Attorney General on mail-in ballots

This week, President Trump refused to commit himself to a peaceful transition of power, saying:

Well, we’re going to have to see what happens. You know that I’ve been complaining very strongly about the ballots and the ballots are a disaster…. Get rid of the ballots, and you’ll have a very—we’ll have a very peaceful—there won’t be a transfer, frankly. There’ll be a continuation.

Some commentators have wondered if Trump might refuse to leave the White House even if he loses. Gellman believes that’s the wrong question, and I agree. The much more likely scenario is that Republicans prevent a clear Biden victory by interfering with the voting process or the counting of mail-in ballots. Gellman describes what’s been going on already:

Republicans and their allies have litigated scores of cases in the name of preventing fraud in this year’s election. State by state, they have sought—with some success—to purge voter rolls, tighten rules on provisional votes, uphold voter-­identification requirements, ban the use of ballot drop boxes, reduce eligibility to vote by mail, discard mail-in ballots with technical flaws, and outlaw the counting of ballots that are postmarked by Election Day but arrive afterward. The intent and effect is to throw away votes in large numbers.

And that’s just the beginning. Gellman also describes the plan to resume and expand election-day activities that a court ruled improper after the 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.

Since then, the RNC has been under a consent decree requiring them to get advance approval for any such operations, but that has now expired. Trump’s deputy campaign manager, Justin Clark, has been recorded as hailing that expiration as a “huge, huge, huge, huge deal,” and promising a much larger operation with 50,000 poll monitors in 15 contested states.

If the election is close, any delay in counting mail-in votes could produce the appearance of a Trump victory on election night—a so-called “red mirage”—followed by a very slow movement toward Biden in the following days—a “blue shift.” We already saw something like that in Florida in 2018, when Republican candidates Ron DeSantis and Rick Scott saw their election-night leads shrink over the following days. Trump tweeted that the mail-in ballots were fraudulent and should be disregarded. Gellman quotes a legal advisor to the Trump campaign promising a similar situation on a national scale this time: “There will be a count on election night; that count will shift over time, and the results when the final count is given will be challenged as being inaccurate, fraudulent—pick your word.”

Unfortunately, there are many ways of making your mail-in ballot vulnerable to rejection: You have moved recently; you used a slightly different version of your name; your signature doesn’t match closely enough; you signed on the wrong line; or you failed to use the inner security envelope. Challenges and lawsuits, legitimate or frivolous, could affect what votes get counted. If the process in a swing state is dragging on as December 14 approaches—the day the Electoral College votes—the outcome could be settled by a court ruling as it was in 2000, or by a state legislature. If the mail-in ballot becomes the “hanging chad” of 2020, the voters may not have the final say.

Trump has already said that he expects mail-in voter fraud (of which there is hardly any evidence) to force the Supreme Court to intervene, which is one reason he wants to fill the vacancy on the court before the election. And under the Constitution, states can select electors any way they want, so a state legislature could use claims of fraud—or just electoral confusion—as an excuse to legislate their preferred outcome. Republicans control the legislatures in the crucial battleground states of Florida, Arizona, North Carolina, Wisconsin, Michigan and Pennsylvania. Republican leaders in Pennsylvania are already discussing that strategy.

Another possible scenario is that a state ends up with two rival slates of electors, one believed to be elected and the other selected by the legislature. The Constitution says that the President of the US Senate, that is, Vice President Pence, counts the ballots of the Electoral College, so he would get a large role in deciding his own re-election. Another scenario is that neither candidate wins 270 electoral votes, and the House of Representatives chooses the President. But since each state delegation only gets one vote, a small red state like Wyoming would count as much as a big blue state like California, another advantage for Trump. In some scenarios even Congress could not determine who the real president is, in which case Trump might win again because of the Supreme Court.

We have never had a president so openly contemptuous of our democratic institutions and norms. That makes this election especially crucial for preserving them, but it also makes this election especially vulnerable to their violation. That is all the more true because the Republican Party is now the party of Trump, enabling his undemocratic impulses for their own gain. They are using each other, and they deserve each other. But the rest of us deserve better.

In the end, elections come down to numbers. The larger the vote margin for the majority’s choice, the harder it will be for a minority to thwart the will of the people by getting votes discounted. We must all do our best to make ours count.

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