Tag Archives: vote by mail

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.

 

The Real Objection To Vote By Mail

I have some truly brilliant Facebook friends who regularly enlighten me.

For example, I have been puzzled by the degree of opposition displayed by Trump Republicans to voting by mail. The research shows pretty conclusively that vote by mail  doesn’t benefit either party (although it does increase turnout, and there are those who believe that larger turnout benefits Democrats.) It just seemed odd that the Trumpers would get so hysterical– and spend so much time and energy– fighting mail-in ballots.

Now I understand.

One of my Facebook Friends is David Honig, an Indiana lawyer whose posts are always informed and perceptive. However, his post this week–in which he answered the “why” question–was especially brilliant, because he cut through all the speculation and explained what is really motivating Republican opposition to vote by mail.

If people mail in their votes, robocalls to black communities telling them the election has been rescheduled, or their polling place changed, won’t work.

If people mail in their votes, robocalls to black communities on election day, telling voters to relax, the Democrat has already won, won’t work.

If people mail in their votes, calling out the “Militia” to intimidate voters won’t work.

If people mail in their votes, a “random” road block near a black neighborhood on election day won’t work.

If people mail in their votes, closing down the polling places in predominantly black neighborhoods, and leaving the only polling place miles from the populace, without any public transportation, won’t work.

As David argues–pretty persuasively– this isn’t about managing expectations, or creating an argument about errors in the vote in the event of a close Trump loss. This is about Republicans not being able to use their usual tactics– their time-honored strategies to suppress minority turnout on election day–to eke out a win. (The links will take you to recent examples of those tactics.)

GOP opposition is about the fact that vote-by-mail would eliminate most of the cheating we actually see every election.

As one of my sons pointed out in a comment, an additional problem Republicans have with voting by mail is that it returns the system to good old-fashioned paper. Voting by mail, with paper ballots, eliminates concerns about computer hacking and (with many of the newer voting machines) the lack of paper backup.

With “vote by mail” there is a paper trail that can be checked for accuracy in the event of a dispute or recount.

Ironically, it turns our that the arguments about vote by mail actually are arguments about voter fraud– just not in the way Republicans are framing it.  Vote by mail is a way of preventing fraud–preventing games the GOP has perfected and played for years–preventing voter suppression tactics that are every bit as fraudulent as casting an unauthorized or impermissible ballot. When we talk about rigging an election, these are the methods that have been used for years to do the rigging.

Ultimately, vote by mail isn’t just about preventing the spread of disease, or about accommodating the schedules of working folks, or even about facilitating the casting of more thoughtful and considered ballots, although it will do all of those things. It’s about keeping elections honest.

I just didn’t see it before.

No wonder the Trumpublicans oppose it.