Plebiscitary democracy will almost certainly bring much sharper ideological, geographical, racial, and religious divisions.
Democrats Versus the Vote
Who’s really suppressing the people’s voice?
A recent New York Times piece about the presidential election reads more like an article in The Onion or Babylon Bee. It claims that “President Trump’s litigiousness and unfounded claims of fraud have increased the likelihood of epic postelection court fights.”
The president’s “litigiousness”?! In state after state, almost all the lawsuits filed over this year’s elections have been filed by Democrats and liberal or progressive organizations, seeking to change election rules by judicial fiat. Their objective: force all-mail elections or huge increases in absentee balloting while simultaneously eliminating safeguards against abuse and fraud.
The Times top brass must not have read their own reporters’ story very carefully. That story cites law professor Richard Pildes’s count of at least 160 lawsuits filed by “party organizations, campaigns and interest groups,” noting that the Trump campaign and the Republican National Committee “are involved” in only 40, “some in response to Democratic lawsuits.” For those familiar with basic arithmetic, the “litigiousness” is on the other side of the political aisle. Perhaps the Times didn’t bother to do the math.
The Times is right, though, when it says that the possibility of litigation after this November’s election may make the 2000 fight in Florida “look like a high school student council election” in comparison. But given what has occurred so far, if we have contentious court fights, it is far more likely that they will be initiated by Democrats attempting to game the system, not Republicans.
The nature of the hundred-plus lawsuits filed by Democrats and these organizations make that clear. All of those lawsuits (and the COVID-19 response bills filed in the House by Speaker Nancy Pelosi and other Democrats) have similar goals that will give these political actors the ability to game the system. This would be true of any actors trying to change the rules in this manner mid-game. They are trying to force states to mail absentee ballots to all registered voters, despite the known inaccuracies of state voter rolls. At the same time, they are trying to
- get rid of voter ID and witness signature or notarization requirements for absentee ballots;
- override state deadlines for absentee ballots to be either returned or postmarked by Election Day;
- void state laws banning vote harvesting by third parties;
- stop or erode signature comparison procedures; and
- require that voters be sent postage-prepaid envelopes for the return of completed absentee ballots.
What is clear from all of these lawsuits is that the Democrats and these organizations are trying to change the rules governing the administration of the November election, while it seems that the Republicans are trying to preserve the status quo.
Flipping the Script
It is also interesting, although probably to be expected, that the Times story dismisses all the problems with mail-in balloting raised by critics. The Times labels as “dubious” claims about possible fraud—such as just occurred across the river in Paterson, N.J. Nearly 20% of the ballots cast in that all-mail election were rejected, leading a judge to invalidate a city council election.
As for the problems encountered by voters due to misdelivery or delayed deliveries of ballots by the U.S. Postal Service, as well as the higher rejection rates of absentee ballots, the article blithely ignores these well-documented and all-too-common problems.
My, how times have changed. In 2012, the paper of record published a story entitled “Error and Fraud at Issue as Absentee Voting Rises.” That story concludes—correctly—that “votes cast by mail are less likely to be counted, more likely to be compromised and more likely to be contested than those cast in a voting booth, statistics show.” The rejection rate for absentee ballots, according to the New York Times in 2012, is “double the rate for in-person voting.”
That refutes the Brennan Center’s claim, advanced in the story, that attempts to defend existing laws are just “efforts to throw tacks in front of the tires to make it so states can’t run their election this time.” No, trying to stop the imprudent expansion of mail-in balloting—as the evidence shows—is an effort to prevent a higher rate of disenfranchisement and a higher incidence of possible fraud.
To be clear, only one side so far seems to be trying to “make it so states can’t run their elections” the way they are required to under their existing laws and regulations. And it appears these same actors are trying to take political advantage of the COVID-19 crisis by getting judges to order the same ill-advised changes to election law they’ve been trying to wring from Congress and state legislatures for years. Of course, these changes to election law and policy would be unwise no matter who was pushing them.
The story notes that the effort to expand vote-by-mail to supposedly help voters, especially minority voters, is being led by DNC general counsel Marc E. Elias. He and his law firm, Perkins Coie (the legal consigliere of the Democrats), even have a website called Democracy Docket that lists the numerous cases they have filed all over the country.
But has this always been their position?
Consider, for example, Ohio Democratic Party v. Husted, a 2015 case over various election changes affecting early voting and same-day registration. In that case, Elias and his law firm filed a brief criticizing absentee balloting. In what can only be termed a patronizing and racialist view, Elias essentially claimed that African-American voters just aren’t smart enough to vote using absentee ballots:
Lower levels of educational attainment make the complexities of the vote-by-mail process—which requires filling out a detailed absentee application, paying postage, filling out more information again when the ballot is received, and paying additional postage—even more difficult to navigate. As a consequence, mail-in absentee voting is a not a workable option for many African Americans.
While they are trying to void witness signature requirements on absentee ballots (because that is supposedly too dangerous and will lead to the spread of COVID-19), many of these same actors are also trying to override state laws banning vote harvesting.
So what is vote harvesting? When you vote by absentee ballot, you can either mail back your absentee ballot or you or a family member can hand-deliver your ballot to election officials. But states like California have legalized vote harvesting, which allows any third party to pick up your ballot to deliver it. Apparently, family members delivering ballots will give you COVID-19, but total strangers coming to your house (and hundreds of others) to pick up and deliver ballots is 100% risk-free.
The Real Danger
The real problem with ballot harvesting is that it puts ballots, a very valuable commodity, into the hands of individuals who have a stake in the outcome of the election—candidates, campaign staffers, party activists, and political guns-for-hire (consultants). This leads to predictable results.
Just look at the 2018 election in North Carolina’s 9th Congressional District. That election was overturned because of illegal vote harvesting that included a political consultant and his staff doing everything from filling out voters’ absentee ballots to forging voter signatures.
Yet in the face of COVID-19, liberals are trying to force states to allow strangers to go door-to-door in voters’ neighborhoods to pick up their absentee ballots. Not only will this potentially spread COVID-19, it will also put those strangers in a position to round up unused ballots and to coerce or pressure voters to vote the way the campaigns want them to vote—a recurring feature of absentee ballot fraud cases. Yet this is supposedly necessary because of the health crisis.
And what about postage-stamping the envelopes sent to voters for their use in returning their completed absentee ballots? It may sound innocuous, maybe even like a good-government reform, but it is actually another way of getting around having an Election Day deadline for returning an absentee ballot.
Envelopes already postmarked by election officials will not be postmarked again by the U.S. Postal Service. This leaves election officials with no way of knowing whether the absentee ballot was actually mailed prior to Election Day or after the election—perhaps when vote harvesters show up at the house of someone who didn’t vote in order to entice them to send in their absentee ballot to shore up their candidate’s vote totals based on the preliminary vote count.
After officials encouraged everyone to vote by mail, it took New York six weeks to count the ballots after their June 23 primary, due to an enormous increase in absentee ballots that election officials were not prepared to handle.
Large numbers of those ballots were rejected—one of every five in New York City—for everything from not having a postmark, to the voter’s signature not matching the one on file (a possible indication of fraud), to voters not properly supplying all of the registration information required on the outside of the ballot envelope.
Lawsuits were promptly filed contesting the results. A federal judge has now ordered New York officials to count ballots that were rejected because they did not have a postmark or because they had a prepaid postmark, disregarding whether or not they were voted after Election Day. The judge said not counting them would violate the constitutional rights of the voters.
This provides a prime example of how one side may game the system after Election Day. They will continue to push for the largest expansion of absentee and mail-in ballots possible. The motives behind these rushed changes may become clear if their candidates are winners on Election Day. Will their lawyers then stand down? Will these same actors criticize any losing candidates who refuse to accept the results as poor losers?
But if they are behind, particularly in the presidential campaign, will they file lawsuits everywhere they believe they have a political advantage, contesting the rejection of absentee ballots and seeking to get a court to order them counted, even if they don’t comply with state requirements, including being mailed before Election Day?
Shut Up and Vote
All that is certainly possible. For historical example, look no further than the Minnesota Senate race in 2008. Incumbent Republican Senator Norm Coleman was the winner on Election Day by a little over 700 votes out of 2.9 million cast in his race against Al Franken. Franken, represented by Marc Elias along with a huge legal team and backed by millions of dollars, swarmed the recount, aggressively demanding that absentee ballots which had been disqualified and rejected for failing to meet state legal requirements be added to Franken’s count, while at the same time arguing that others be denied to Coleman.
Eventually, Elias and his legal team were able to come up with enough absentee ballots to have Franken declared the winner by a 312-vote margin. The Minnesota Supreme Court ultimately stamped its approval on what Elias had accomplished—using litigation to reverse the election results. This would indeed be a successful litigation model to again follow in November for whoever loses, but at what cost to the integrity of how states administer their elections?
As noted above, it took six weeks for New York to count the absentee ballots cast in a primary. The turnout in general elections is inevitably much higher. Take the New York delay and the many problems it experienced, along with the litigation contesting the results, and multiply that by all of the states across the country that make the mistake of promoting massive absentee voting and keeping polling stations closed.
Then add in the lawsuits that will be filed on behalf of the tens of thousands of voters who missed their chance to vote because the U.S. Postal Service failed to deliver their ballots in time, a problem encountered by voters in every primary held since the COVID-19 crisis shut down the country.
It leaves us with this unsavory yet all-too-possible scenario: the election is close; neither presidential candidate has locked down a majority of Electoral College votes, and the outcome in states that could tip the scales one way or the other is still being contested on January 20—when the president’s term ends.
For the first time in our nation’s history, a little-known federal statute (3 U.S.C. § 19) could then be applied. That statute provides that if the outcome of the election is still in doubt on January 20, the speaker of the U.S. House of Representatives, currently Nancy Pelosi, shall upon her “resignation as Speaker and Representative” act as the president until a president or vice president has been determined.
Nancy Pelosi has publicly opposed almost every action taken by Trump through his executive authority. Yet this statute would put someone who has won neither the national popular vote nor the votes of the Electoral College—and therefore has no mandate to govern—the power of reversing all of Trump’s policy changes and trying to implement her golden wish list of progressive policies she has been unable to get through Congress.
The 2020 presidential election contest may end up being one of the most chaotic, unruly, and tumultuous elections in our history, with contentious litigation dragging on through and beyond Inauguration Day. I hope that I am wrong, because I think that such a result would damage our democratic process and the body politic. But if I am right, we may have only one litigious party on the left side of the political aisle to blame. Americans must not let such tactics of suppression and intimidation keep them from making their voice heard come November.
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