Tag Archives: absentee ballots

A Measured And Accurate Rebuttal

Richard Hasen– probably the pre-eminent American scholar of voting and elections–had a column in last week’s  New York Timesin which he patiently dismantled Trump’s barrage of criticisms of mail-in-voting.

Not that anyone who listens to or actually believes anything Trump says would be likely to read the Times. 

I have only one quibble with Hasen’s essay–his assertion that Trump’s relentless attacks on mail-in voting are part of a “strategy.” After watching Trump for nearly 4 years, it is my considered opinion that the development of a strategy–let alone adherence to it–is far beyond his capacities.

Be that as it may, Hasen says there are two possible reasons for the assault: to create an excuse in advance of a loss, or an effort to create chaos that will both drive down turnout and undermine the legitimacy of the election. Hasen “very much fears” that the latter is correct, and that Trump is laying the groundwork for contesting his loss in a close election.

You can’t say he isn’t giving it his all. As Hasen reports,

Mr. Trump has made at least 91 attacks on the integrity of voting so far this year (and more than 700 since 2012) and backed up his complaints about mail-in ballots with lawsuits in Pennsylvania, Nevada and Iowa. He has repeatedly tweeted the unsupported claim that increased use of mail-in ballots in November, necessitated by the Covid-19 pandemic, will lead to voter fraud and a rigged election.

These attacks have been more than a little contradictory–evidencing Trump’s usual scattershot and illogical approach to most issues–and raising a not-insignificant possibility that they will end up hurting Republicans as much as–or even more than–the Democrats who are his targets.

The end game here is a bit curious because Republicans traditionally have relied on mail-in balloting to get out the vote, and there are already signs that Republican turnout might be hurt by his rantings. How else to explain the president seeking to distinguish between good “absentee” voting and bad “mail-in” balloting and urging Floridians to vote by mail? And how else to explain the president not only repeatedly voting by mail but using a third person — what Mr. Trump refers to as “ballot harvesting” — to deliver his own ballot to election officials in the Florida primary on Tuesday?

Hasen patiently explains why Trump’s claims of fraud are bogus (or as he phrases it, “unsupported by the evidence.”) Absentee ballot fraud is rare. There have been fewer than 500 prosecutions for such behavior over a 12 year period in which more than a billion ballots were cast, and Hasen tells us that they tended to involve small elections “when there wasn’t an active press looking for chicanery.”  (An observation that reinforces the importance of a robust local press…but that’s a subject for another day.) Furthermore, Hasen says that the relative rarity of cases shouldn’t surprise us, because states have all kinds of security measures in place. Those security measures go well beyond signature matching, to include ballot tracking and statements signed under penalty of perjury.

The real danger posed by this campaign of disinformation is in the event of close election results on November 3d.

A “blue shift” toward Democrats as later votes are counted is now a well-established phenomenon; as Democrats vote later, their ballots are counted later, leading to a good number of elections where Republican leads on election night turn into Democratic victories when the full and fair count ends.

Trump could claim, as he did in a 2018 U.S. Senate race in Florida, that later-counted ballots are fraudulent (a claim he abandoned when Rick Scott, a Republican, won the race). It could lead millions of his supporters to believe that Democrats stole the election, when in fact all that happened was that battleground states engaged in a close and careful count of ballots to ensure the election’s integrity.

To the extent that Trump has a “strategy,” my guess would be that this describes it. And after years of anti-government rhetoric, topped off by the in-your-face-illegality of this administration, Americans’ distrust of our institutions will feed those suspicions.

Vote early–and if at all possible, in person.

Why Judges Matter

Note: For those who follow this blog on Facebook, apologies; changes by FB resulted in automatic posting failing for the last ten days. I’ve manually posted the past three; for others, you will need to access the site.

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Here in Indiana, in recognition of the pandemic, the state’s Election Commission authorized mail-in voting without excuse for the recent primary election. Thus far, they are refusing to allow no-excuse voting by mail in November.

Hey, we’re a Red state, and–in defiance of available data that says neither party benefits from voting by mail–the GOP is convinced that making it easier to vote will help the Democrats. (Besides–as I pointed out recently–mail-in ballots make it impossible to play the minority-vote-suppressing games Republicans have long played in this state.)

Given this official intransigence, several individuals and Indiana Vote By Mail have filed suit in federal court, asserting that the denial violates the constitutional rights of voters, and asking that the judge order the Election Commission and Secretary of State to authorize no-excuse mail ballots.

The complaint notes that these officials “have failed to take necessary actions to protect Indiana voters” and that as a result, many voters will have to make a choice between their personal safety and health, and exercising their right to vote. They want the court to rule that they can cast an absentee ballot “in precisely the same manner in which these same election officials have allowed in the June 2 primary election.”

The pleading points out that a majority of Hoosiers are vulnerable to COVID-19, that the disease is potentially fatal, and that it is readily spread from person to person. They offer medical testimony to the effect that it is “highly likely” to be with us in November, and that  minimizing the risk requires people to “spend the shortest amount of time in the best ventilated, least contaminated environment, where the fewest number of people are generating the fewest virus particles.”

The pleadings identify a variety of ways in which the refusal to allow absentee voting under these circumstances violates the constitution–especially Equal Protection–and cite dozens of cases in support of that argument. (Interestingly, they also cite the 26th Amendment, which prohibits abridging the right to vote due to age. Data suggests that refusal to allow no-excuse absentee voting disproportionately harms the elderly.)

It’s been quite awhile since I was a practicing lawyer, but as I read the pleadings, the plaintiffs make a strong–even conclusive– case. And here’s the “teachable moment,” as we in academic life like to say:

  • The right to vote is one of the most important rights Americans (presumably) enjoy. Every other right ultimately depends upon the conduct of fair elections in which the voice of the people–all of the people–is reflected and honored.
  • When government officials representing the executive or legislative branches act in ways that threaten American liberties–not just our right to cast ballots, but the other rights guaranteed by the Constitution–the courts are our only redress  short of violence. If the judiciary is corrupted, we’re up that creek without a paddle.

For the past three and a half years, Mitch McConnell and the GOP have been intent on corrupting the federal judiciary, confirming ideologues and partisans to lifetime positions, despite the fact that many of them aren’t qualified to be on the bench and have demonstrated no commitment to the rule of law.

Politically, arguments about the importance of the judiciary have tended to be about reproductive rights, but overturning Roe v. Wade is just a minuscule part of the damage that can be done when the courts can’t be counted on to restrain nakedly partisan infringements of the Constitution.