vote by mail – Sheila Kennedy

Excellent Advice

Last Tuesday, Jamelle Bouie had a truly useful column in the New York Times.

On this blog, I cite and link to a wide variety of opinion and research, mostly because I’m sharing information I consider interesting, factual and important. It is much rarer to come across information that is both illuminating and practical– useful.

Bouie began with a prediction that won’t surprise anyone who hasn’t been in a coma for the past four years: if the first returns on election night show him even slightly ahead, Trump will declare victory and have his minions doing everything they can to stymie the counting of additional, mail-in ballots. (In 2018, as the results of absentee ballots came in, the Democrats’ advantage grew substantially–what had looked like an anemic victory turned into a blue wave.) Recent research confirms that–for reasons that remain obscure–later counted votes have routinely benefitted Democrats.

If Trump is leading on election night, in other words, there’s a good chance he’ll try to disrupt and delegitimize the counting process. That way, if Joe Biden pulls ahead in the days (or weeks) after voting ends — if we experience a “blue shift” like the one in 2018, in which the Democratic majority in the House grew as votes came in — the president will have given himself grounds to reject the outcome as “fake news.”

Unlike the pundits who simply point out the ways in which disaster might strike in November, however, Bouie proposes a remedy; he tells us what we can do to avoid that disaster.

The only way to prevent this scenario, or at least, rob it of the oxygen it needs to burn, is to deliver an election night lead to Biden. This means voting in person. No, not everyone will be able to do that. But if you plan to vote against Trump and can take appropriate precautions, then some kind of hand delivery — going to the polls or bringing your mail-in ballot to a “drop box” — will be the best way to protect your vote from the president’s concerted attempt to undermine the election for his benefit.

Here in Indiana, our Republican Governor and Secretary of State have thus far refused to allow no-excuse absentee voting. But thanks to previous lawsuits brought by Common Cause, we have a reasonable number of satellite voting locations, and we have 28 days of early voting. My husband and I had already decided that we would “mask up” and (as usual) vote early in person.

As Bouie reports, and we all know, Trump is increasingly desperate to hold on to power. If the polls are even close to correct, he probably can’t win a fair fight.

His solution, then, is to do everything in his power to hinder the opposition and either win an Electoral College majority or claim victory before all the votes have been counted.

A key element of Trump’s strategy is to undermine the Postal Service’s ability to deliver and collect mail. The president’s postmaster general has removed experienced officials, implemented cuts and raised postage rates for ballots mailed to voters, increasing the cost if states want the post office to prioritize election mail. And Politico reports that Trump’s aides and advisers in the White House have been searching for ways to curb mail-in voting through executive action, “from directing the Postal Service to not deliver certain ballots to stopping local officials from counting them after Election Day.”

The polls also reflect a huge partisan split on the issue of mail-in voting, with 54 percent of Biden supporters preferring mail compared to only 17 percent of Trump supporters. If those percentages are reflected in the early returns, Bouie’s election-night scenario becomes terrifyingly possible.

The best defense for the president’s political opponents is, if possible, to vote in person. For some, this will mean going to the polls in November, in the middle of flu season, when the spread of Covid-19 may worsen. In most states, however, there are multiple ways to cast or hand in a ballot. Every state offers some form of early or absentee voting, and 33 states — including swing states like Arizona and Wisconsin — allow absentee voting without an excuse. Trump supports absentee voting — it’s how his older supporters in Florida vote — and his opponents should take advantage of the fact that those systems won’t be under the same kind of attack. Many vote-by-mail states also offer drop boxes so that voters can deliver ballots directly to the registrar. And if you must mail in your ballot, the best practice would be to post it as early as possible, to account for potential delays.

The best possible outcome would be a massive election-night repudiation of Trump and his enablers–so massive that it leaves no room for doubt that the majority of Americans want to begin the hard work of repairing the incalculable damage done to both our institutions and Americans’ self-respect.

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Add This To The List

A couple of days ago, Trump floated the possibility of postponing the general election “due to the pandemic.” He made the suggestion in a tweet–of course–in which he also took another swipe at vote by mail, which he distinguished from absentee voting. Absentee voting, he tweeted, was fine; vote by mail, however, would lead to massive fraud.

The tweet displayed his usual–monumental–ignorance of its subject-matter.

First of all–and somewhat beside the point–vote by mail is pretty much identical to absentee voting–a method of casting one’s ballot that Trump himself has frequently used. His insistence that it leads to fraud is belied by the fact that some 29 states employ vote by mail for some portion of their elections; Oregon, Washington State and Colorado all have gone completely to vote by mail, and the only result that would account for Trump’s opposition is increased turnout.

Just as the GOP used fabricated hysteria over “voter fraud” to justify Voter ID laws–the real purpose of which is to suppress the votes of poor people and minorities–Trump is frantically trying to drum up mistrust of mail-in ballots.

When it comes to the question of postponing the election, Trump once again displays his total ignorance of the U.S. Constitution–a document I doubt he has ever read or had read to him. Article 2, Section I, gives Congress some leeway in counting Electoral votes; nowhere does the document give the President any authority whatsoever over the timing or conduct of elections.

Moreover, the 20th Amendment requires the President and Vice-President to end their terms at noon on January 20th in the year following the general election. It allows for no leeway. As one wag has pointed out, if we haven’t elected a new President at that point, the Speaker of the House would become President.

President Pelosi would be okay with me.

Throughout his term in office, Trump has obviously believed that Presidents are like kings–that he has unchecked autocratic power. Fortunately, he is often wrong, but as Gary Hart wrote in a recent New York Times Op-Ed, there are far too many times when he’s right. And that should scare the living you-know-what out of us.

In 1975, after public revelations of intelligence abuses concealed from all but a handful of members of Congress, the United States Senate created a temporary committee to study the nation’s spy agencies — something no standing committee had ever attempted.

What came to be known as the Church Committee, after its chairman, Senator Frank Church of Idaho, recommended broad reforms, including the creation of a permanent Intelligence Oversight Committee. Former Vice President Walter Mondale and I are the last surviving members of the Church Committee.

We have recently come to learn of at least a hundred documents authorizing extraordinary presidential powers in the case of a national emergency, virtually dictatorial powers without congressional or judicial checks and balances. President Trump alluded to these authorities in March when he said, “I have the right to do a lot of things that people don’t even know about.”

Hart says it’s time for a new select committee “to study these powers and their potential for abuse”, and advise Congress on mechanisms that would provide stringent oversight, if not outright repeal.

What little we know about these secret powers comes from the Brennan Center for Justice at the New York University Law School, but we believe they may include suspension of habeas corpus, surveillance, home intrusion, arrest without a judicial warrant, collective if not mass arrests and more; some could violate constitutional protections.

A number of us have urged immediate congressional investigations concerning what these powers are and why they have been kept secret. Public hearings should be held before the November elections, especially with rumors rife that the incumbent president might interfere with the election or refuse to accept the result if he felt in jeopardy of losing.

Hart asks some very important questions:

Where did these secret powers come from? Where are they kept? Who has access to them? What qualifies as a national emergency sufficient to suspend virtually all constitutional protection? And critically, why must these powers be secret?

If–as every rational American must hope–Joe Biden becomes President in January 2021, a searching examination of these secret powers and the nature of the events that might trigger them needs to be added to the very long list of tasks made imperative by Trump’s corrupt and disastrous Presidency.

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Undermining Efforts To Vote–And Not Just By Mail

As the polls get grimmer for Trump and the GOP, the party’s efforts to sabotage November’s election get more frantic.

Trump has especially attacked efforts to expand vote-by-mail, in the face of a pandemic that has not only made voters fearful, but made it nearly impossible for election officials to find people willing to staff voting centers. It isn’t just threats and tantrums; the Washington Post reported on his installation of another crony as Postmaster General.

A top donor to President Trump and the Republican National Committee will be named the new head of the Postal Service, putting a top ally of the president in charge of an agency where Trump has long pressed for major changes in how it handles its business.

The Postal Service’s board of governors confirmed late Wednesday that Louis DeJoy, a North Carolina businessman who is currently in charge of fundraising for the Republican National Convention in Charlotte, will serve as the new postmaster general.

Trump had already been carrying on a vendetta against the Postal Service as part of his grudge match against Jeff Bezos; he is convinced that Bezos is “getting a deal” on the delivery of Amazon packages. His fear of vote-by-mail has ramped up his antagonism considerably.

Despite the wild allegations, voting by mail has been widely used in U.S. elections for many years and previously had widespread support from both parties. A recent Brennan Center poll found that four out of five Americans think that all voters should have a mail ballot option for Election Day, including 57 percent of Republicans. Every state allows at least some of its voters to cast mail-in ballots, and most states allow all voters to cast mail-in ballots. (And as many people have pointed out, Trump himself votes by mail.)

Nevertheless, Trump has ramped up its rhetoric, characterizing mail-in ballots as fraudulent, and expansion of the option as a way to “rig” the election. (Ironically, those attacks seem to be convincing mainly Republican voters–leading GOP operatives to worry that it will hurt their own turnout efforts.)

Paul Waldman recently pointed out that GOP efforts at vote suppression aren’t limited to the party’s frenzied assault on vote-by-mail.

Voter suppression is at the very heart of Republican electoral strategy, and, as the New York Times reports Monday, they plan to go all-out in November:

The Republican program, which has gained steam in recent weeks, envisions recruiting up to 50,000 volunteers in 15 key states to monitor polling places and challenge ballots and voters deemed suspicious. That is part of a $20 million plan that also allots millions to challenge lawsuits by Democrats and voting-rights advocates seeking to loosen state restrictions on balloting. The party and its allies also intend to use advertising, the internet and President Trump’s command of the airwaves to cast Democrats as agents of election theft.

The efforts are bolstered by a 2018 federal court ruling that for the first time in nearly four decades allows the national Republican Party to mount campaigns against purported voter fraud without court approval. The court ban on Republican Party voter-fraud operations was imposed in 1982, and then modified in 1986 and again in 1990, each time after courts found instances of Republicans intimidating or working to exclude minority voters in the name of preventing fraud. The party was found to have violated it yet again in 2004.

Waldman notes that, for Republicans, “Voters deemed suspicious” is shorthand for “black people, Latinos, students, black people, and also black people.”

He also reminds readers of what happened in Wisconsin, when Republicans stymied efforts to postpone a primary during the initial spike of COVID-19 cases. The effort backfired. Voters were pissed off enough to stand in long lines and literally risk their lives to cast a ballot.

The lesson Waldman takes from that election is that, the more attention is given to GOP voter suppression efforts– the more voter suppression itself becomes a campaign issue– the more likely it will be to boost turnout among Democrats.

Pass it on.

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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.

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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.

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