The fundamentals are clear: Donald Trump lost the popular vote in 2016 and is poised to lose it again in 2020. His only hope is to squeak out an Electoral College margin in the only states that matter—and only through a multifarious campaign of voter suppression which exploits the pandemic to undermine democracy itself. Failing that, he can use bogus charges of voter fraud to question results in key states, including those where a surfeit of mail-in ballots delays a final count.
The battleground states of Arizona, Florida, Michigan, North Carolina, Pennsylvania, and Wisconsin all narrowly favored Trump in 2016; recent polls show him trailing Joe Biden in all six. But many Democrats now believe that, with money and effort, they can flip three other states that Trump carried easily in 2016: Ohio and, more surprisingly, Georgia and Texas.
At a time when the coronavirus has deep-sixed Trump’s approval ratings, flipping states that Trump barely won would seem like a relatively easy task. But the coronavirus has severely complicated the electoral landscape by making voting on Election Day a potentially serious public health risk. In a saner age, this would prioritize concerted and well-funded efforts to make in-person voting easier and safer, while facilitating voting by mail on an unprecedented scale.
Were our political parties jointly committed to assuring a free and fair election in which every eligible citizen who wants to vote can, the fixes would be obvious. Safe in-person voting requires more polling places, longer voting hours, expanded early voting, and sensible public health measures to protect voters and poll workers alike. And swiftly and accurately counting the anticipated flood of mail-in ballots requires more and better equipment, increased election workers, a proactive system for printing and distributing ballots and, critically, agreed-upon standards for counting votes in a consistent and impartial manner.
But Trump and his party are fundamentally opposed to that most basic tenet of democracy: an honest and inclusive election. Instead, they want to choose their own electorate through selectively excluding probable Democratic voters—minorities, urbanites, and the young—by making it more difficult for such people to vote and, in this year of COVID-19, more dangerous.
The GOP’s methods for restricting in-person voting are a time-tested product of its reliance on a shrinking demographic of older, often less educated white people: Enforcing discriminatory voter ID laws that target minorities. Closing polling places to make voting in Democratic areas harder and more time-consuming. Limiting early and absentee voting. Paring voter rolls on pretexts that disproportionately disenroll eligible voters of color.
But the pandemic hands Republicans potent new weapons: Eschewing public health measures in overcrowded polling places predominantly used by Democrats, thereby endangering voters and poll workers. And, most critically, amplifying the impact of in-person voting by Republicans through the suppression of mail-in balloting.
The strategy rests on four related premises. First, that making voting tougher for presumptive Democrats than Republicans can tilt closely contested states. Second, that Trump voters are more enthusiastic, and thus more likely to vote in person. Third, and less flattering, that—conned by their ignorant and derelict leader—his base voters are simply too dumb to appreciate the risk of in-person voting. Fourth, that mass voting by mail would undercut Republican efforts to disenfranchise Democratic voters.
The GOP’s public rationale for pushing voter ID laws and limits on mail-in balloting is preventing voter fraud. But numerous investigations and studies have found no statistically significant evidence for such fraud. In truth, these bogus claims are themselves voter fraud in very thin disguise: a justification for denying the vote to qualified citizens while providing fictitious grounds for challenging adverse election results. Instead of stuffing ballot boxes, Republicans mean to starve them.
This November such efforts will be extremely well funded. The GOP has reportedly dedicated $20 million to fund an army of 50,000 poll watchers to monitor voters deemed “suspicious”; fund lawyers to challenge electoral practices they deem inimical; and various stratagems to limit the reach of voting by mail—including, ironically, underfunding such efforts.
The GOP’s claim that voter ID laws are necessary to prevent supposed in-person fraud has a gamy history.
Prior to 2013, the Voting Rights Act required that states with a history of discriminatory voter exclusion—typically Southern states with a large African-American minority—receive “pre-clearance” from the Justice Department for proposed changes to voting procedures. But in the 2013 Supreme Court case Shelby County v. Holder, Chief Justice Roberts, joined only by the other Republican-nominated justices, ruled that America’s racial progress rendered pre-clearance unnecessary. With unseemly alacrity, fourteen states—eight Southern, all but one governed by Republicans—triggered stringent voter ID laws.
These states included Georgia and Texas—as to the latter of which a federal judge ruled in 2014 that its photo ID law existed “because of and not merely in spite of the voter ID law’s detrimental effects on the African-American and Hispanic electorate.” But the GOP has also used voter ID laws to limit voting by college students. No matter—the Supreme Court has consistently upheld them, and they have operated to keep demographic change from turning Georgia and Texas into swing states.
But the pandemic-driven recourse to voting by mail has resulted in further efforts to protect the GOP from the ravages of democracy. Trump himself gave the game away: Referring to a proposal by congressional Democrats to finance more voting by mail, he said “they had things—levels of voting that, if you ever agreed to it, you’d never have a Republican elected in this country again.” Indeed, encouraging voting by mail would, he tweeted in all-caps, “LEAD TO THE END OF OUR GREAT REPUBLICAN PARTY.”
Heaven forfend. Ever the patriot, Trump further claimed that mail-in voting would be exploited by “foreign powers who don’t want to see Trump win.” The mind of Donald Trump is, indeed, where irony goes to die.
Hence the GOP’s effort to underfund the agency charged with delivering mail-in ballots in a timely manner: the U.S. Postal Service. Addressing these efforts, Laurence Tribe warned that funding the USPS is “vital if voting isn’t to become a form of Russian roulette. People died for the right to vote. They shouldn’t have to die to exercise it.”
But, as we have seen, Trump views the death of other Americans with profound indifference. And the GOP has found means of undercounting whatever mail-in ballots are cast: “signature matching,” which allows a poll worker to discard ballots if he or she decides a voter’s name on the outer envelope doesn’t match the name on a registration form, and summarily ignoring ballots postmarked on or before Election Day but received thereafter.
But Trump’s claim that “there is tremendous evidence of fraud whenever you have mail-in ballots” serves another purpose. Said California secretary of state Alex Padilla to the New York Times: “He is not just seeking to undermine the confidence in the election, but confidence in the November election results that he may not like.”
Thus Trump has succeeded in turning the public-safety measure of voting by mail into yet another polarizing political issue. A recent New York Times/Siena College survey of voters in battleground states showed that while a majority support mail-in voting during the pandemic, 72 percent of Trump supporters oppose it. That his base would support any post-election claims of fraudulent voting by mail, including calls for upending the results, seems all but guaranteed.
Trump’s final backstop, it seems, is the U.S. Supreme Court’s Republican majority. Since April, the court has issued four rulings which, Justice Sotomayor observed in dissent, continue “a trend of condoning disfranchisement.”
Perhaps the most notorious was the Court’s ruling that a federal judge in Wisconsin wrongly extended the deadline for absentee voting because of the pandemic. Dissenting, Justice Ginsburg wrote that the majority had presented voters with a terrible choice: “Either they will have to brave the polls, endangering their own and others’ safety. Or they will lose their right to vote, through no fault of their own. That is a matter of utmost importance—to the constitutional rights of Wisconsin citizens, the integrity of the State’s elections process, and in this most extraordinary time, the health of the Nation.”
The five Republican justices were unmoved. In another ruling, the Court declined to reinstate a lower court decision that would have allowed all Texas voters to submit ballots by mail because of the pandemic.
Nor did the five justices confine their efforts to dismissing the impact of COVID-19. In another case, the Court allowed Florida’s Republican legislature to bar voters with felony convictions, often minorities and the poor, from voting unless they pay court fines and fees—a discriminatory practice which Justice Sotomayor aptly analogized to the poll taxes long since held unconstitutional.
By now it seems clear that the Court will not interfere with Republican efforts to limit voting for patently partisan purposes—an ominous foretaste of what might happen were the majority presented with another Bush v. Gore.
It may well be. A survey of the nine critical states exposes that our localized system of voting is a byzantine patchwork ripe for mischance and manipulation.
The state allows universal mail-in balloting and, because of the pandemic, is sending vote-by-mail applications to every registered voter. Ballots are subject to signature matching, however a state law enacted last year requires election officials to “make reasonable efforts” to contact voters whose ballots might be rejected because of an apparent signature mismatch.
While mail-in voting is universal, it is prey to several difficulties. As of now, the state will not count ballots sent by Election Day but received thereafter—a policy that reportedly caused the rejection of more than 18,000 ballots in this year’s primary.
Here, too, mail-in ballots are subject to signature matching. An analysis by the Florida ACLU found that black and Latino voters were much more likely than whites to have their ballots rejected. And, as noted above, the U.S. Supreme Court upheld the state’s de facto poll tax on ex-felons who served their time but still have some lingering fees or fines.
The state permits universal voting by mail. But Republicans have contrived to limit the number of such ballots that are cast, and to undercount those that are. To start, an “exact match” law requires that voters’ names on their government-issued IDs must precisely match their names on voting rolls. In 2018, this affected 53,000 voter registrations.
Earlier this year, the Republican speaker of the Georgia House of Representatives complained that sending out mail-in ballot applications during the pandemic would “be extremely devastating to Republicans and conservatives.” Further, the New York Times reports, Georgia’s Republican secretary of state “has decided to stop sending absentee-ballot applications to registered voters, which seems certain to increase crowding at the polls. Instead, he plans to create a website where voters can apply for absentee ballots, a step that will not help many older Georgians or those without Internet access”—in other words, minorities and the poor.
In 2018, according to the Atlanta Journal-Constitution, “precinct closures and longer distances” to polls likely prevented as many as 85,000 Georgians from voting on Election Day. Seven counties in Georgia now have a single polling location. As voting-rights activist Rashad Robinson told the Nation, “The systemic under-resourcing of polling locations in predominantly Black communities like Atlanta is an intentional method of voter suppression from a Republican-led state legislature that works to further disenfranchise our communities.”
Finally, the state has a history of voter purges—as reported by the AJC, 560,000 removals before the 2018 elections, and another 287,000 last November.
One must add to this calculated systemic manipulation sheer incompetence: In this year’s primary, a dearth of functioning voting machines caused snafus that included hours-long waits for in-person voting. In November, the election is virtually certain to be a nightmare of malice and ineptitude.
The state has provided mail-in ballot applications for the November general election to all registered voters. In response, Trump threatened to withhold federal funding from the state, falsely claiming that it had sent actual ballots.
While every registered voter can vote by mail, there is a history of voter purges. However, the Republican secretary of state appears to be playing 2020 straight.
The state allows voting by mail, and because of COVID-19 most voters used it in this year’s primary. But the overwhelming response caused serious delays in tabulating results. Moreover, the Trump campaign is suing the state and the election boards of all 67 counties to ban the use of drop boxes for submitting take-home ballots.
Like Georgia, the state has a long and rich history of successful voter suppression.
Texas restricts voting by mail to citizens 65 or older, or those who claim disabilities—which does not, the state supreme court ruled, include voters fearful of contracting COVID-19. And, as mentioned above, the U.S. Supreme Court did not permit a lower court to extend mail-in voting to all Texans during the pandemic.
In recent years, Texas has closed some 750 polling places—more than any other state, and about 10 percent of the total number of locations statewide. According to a 2019 analysis, the closures disproportionately affected areas heavily populated by blacks and Hispanics.
Finally, Texas has a highly restrictive voter ID law. All this raises a central question: Is Texas truly a red state, or simply a state that makes it harder for minorities to vote?
The state GOP has made itself famous as a leading practitioner of electoral chicanery. That Wisconsin permits voting by mail hardly relieves a decade of extreme gerrymandering, restrictive voter ID laws, limits on early voting, and efforts to limit mail-in ballots.
In Wisconsin’s April primary, more than 20,000 such ballots were rejected—12 times the number rejected in the 2016 presidential primary. Another 79,000 votes by mail would have been rejected had a court not ordered the state to count ballots postmarked on time. Also, election authorities shuttered all but 5 of the 180 polling places in Milwaukee, creating hours-long waits and an unconscionable risk to public health.
The only good news is that indignant Democrats turned out regardless. But they can expect more of the same: The Wisconsin GOP seems to have decided that it’s okay for voting to kill them.
Given this multistate maze of complexity, a plethora of difficulties in November seems inevitable. In particular, the increase of mail-in votes will likely overwhelm the Postal Service and local election boards in most, if not all, of the nine key states.
Combined with the novelty of this process for many voters and vote-counters alike, this creates the near-certainty of an unprecedented volume of innocent or malign rejections of mail-in ballots—including those received after November 3—which augurs a host of legal challenges. And the experience of Pennsylvania’s primary, with its two-week delay in counting some ballots, raises the prospect of shifting counts and changed results in critical states.
All this chaos would serve Trump’s aim of delegitimizing his prospective defeat. As Amy Walter observed to CNN:
Many of these states are not prepared for what this election will be. . . . They have never done vote-by-mail like this. It’s messy and mistakes are going to be made. People are going to stand in long lines. Ballots won’t arrive. There will be people in every state who can make a case that the process was flawed.
This could render an election where the winner is uncertain—or where Trump can conjure uncertainty. Larry Diamond, a noted analyst of democratic institutions, told CNN: “There’s a significant scope for an unprecedented post-election crisis in this country.”
One worst-case scenario is imagined by Timothy Wirth and Tom Rogers in Newsweek:
The election is thrown into the House of Representatives, pursuant to the Constitution. Under the relevant constitutional process, the vote in the House is by state delegation, where each delegation casts one vote, which is determined by the majority of the representatives in that state.
Currently, there are 26 states that have a majority Republican House delegation. 23 states have a majority Democratic delegation. There is one state, Pennsylvania, that has an evenly split delegation. Even if the Democrats were to pick up seats in Pennsylvania and hold all their 2018 House gains, the Republicans would have a 26 to 24 delegation majority.
This vote would enable Trump to retain the presidency.
Whatever the endgame may be, there is only one way out of the looming electrical chaos: for Biden to win an Electoral College victory so overwhelming that Trump’s claims of victimhood will be literally unbelievable. That means relentless grassroots efforts in swing states combined with an unremitting campaign to focus outrage on Trump and his party’s efforts to defeat democracy.
Like hanging, the prospect of Trump cheating his way to a ruinous second term may focus the mind—causing those he would exclude from democracy to rise in anger and do whatever it takes to cast the ballots he so desperately fears.