Despite Donald Trump’s pathological unfitness for office, the central issue of the election has become this: Trump and his party mean to steal the presidency through massive voter suppression. This would be a fateful, perhaps irreparable, step toward turning our increasingly imperiled democracy into a Westernized version of Viktor Orbán’s Hungary—wherein the party in power insulates itself from the parlous effects of letting the wrong people vote.
Republican attacks on democratic elections are hardly new. What’s different is that they’ve become so comprehensive and conspicuous.
For years the GOP has largely focused on preventing minorities from voting in person. But in 2020 its machinations impact white Americans: To thwart voting by mail, Republicans are targeting likely Democratic voters regardless of race. Both will degrade our presidential election.
1. Republican suppression of minority voting.
The GOP’s ongoing suppression of in-person voting by minorities will, in itself, reduce Democratic turnout this year’s presidential election. Even more disturbing is that this race-based vote-rigging is now embedded in our putative democracy.
The GOP’s war on free and fair elections originated with the changing electorate wrought, in part, by the civil rights movement of the 1960’s. In its wake, Republicans increasingly cast their electoral lot with racially anxious whites and, in consequence, alienated the growing demographic of non-white Americans. But instead of appealing to minorities, the GOP set out to gut the seminal legislation which enabled them to vote—the Voting Rights Act of 1964.
As Jay Willis reports for The Appeal, from the early 1980s a principal opponent of the act was now-Chief Justice John Roberts:
Roberts drafted dozens of memos and op-eds arguing for limitations on the Voting Rights Act while working as a lawyer in the Reagan Department of Justice. A former colleague told Berman that Roberts “seemed like he always had it in” for the act, and described him as a “zealot” who harbored “fundamental suspicions” about its purpose. . . .
Roberts became chief justice in 2005 over the objections of, among others, the late U.S. representative and civil rights movement hero John Lewis of Georgia. Testifying at Roberts’s Senate confirmation hearings, Lewis warned that the country could not afford to hand a lifetime appointment to a man with “such a strong desire to reverse the hard-won civil rights gains that so many sacrificed so much to achieve.”
As Lewis anticipated, Roberts’s presence on the high court proved fateful to the Voting Rights Act.
For years, the GOP’s chief method of disenrolling minorities inclined to favor Democrats was strict voter ID laws supposedly passed to prevent in-person voter fraud. This was nakedly pretextual: As the prominent Republican lawyer Benjamin Ginsberg wrote last week the in the Washington Post, Republicans “must deal with the basic truth that four decades of dedicated investigation have produced only isolated incidents of election fraud.”
The GOP’s real purpose was equally transparent—to keep non-whites less likely to have photo IDs out of the voting booth. The principal barrier to its efforts was a key requirement of the Voting Rights Act: that states with a history of voter discrimination obtain “preclearance” from the Justice Department before changing their voting laws.
Enter Chief Justice Roberts and the five-four majority of Republican appointees which, in 2013, promulgated Shelby County v. Holder. Holding preclearance unconstitutional, Roberts wrote that America’s racial progress had made prior scrutiny of new voting laws unfair to the states affected. Beyond its faux-naïveté, Roberts’s invocation of recent history was patently disingenuous: Roberts had worked assiduously to hamstring the Voting Rights Act three decades earlier.
Moreover, the partisan consequences of this ruling was inescapable from the record before the Court: Freed of preclearance, numerous states were poised to enact or begin enforcing strict ID laws that disproportionately impacted minority voters likely to favor Democrats. In the wake of the Court’s decision, fourteen states—eight Southern, all but one governed by Republicans—did just that.
Nor could anyone miss that these laws were aimed at disenfranchising non-white voters. Texas’s new voter ID law, a federal judge later found, was enacted “because of and not merely in spite of [it’s] detrimental effects on the African-American and Hispanic electorate.” The North Carolina statute, a federal appellate court determined, targeted black voters with “almost surgical precision.” Other Republican ID laws in crucial states, like Georgia and Wisconsin, triggered blatant acts of race-based voter suppression.
Thus empowered, Republicans began shrinking the electorate by other means. Writes Willis:
Voter roll purges . . . have become something of a sport in Republican-controlled states, which almost seem to be competing to see who can disenfranchise more people fastest. States purged 4 million more voters between 2014 and 2016—the period immediately after the Shelby County ruling went into effect—than they did between 2006 and 2008, according to a report from the Brennan Center for Justice. Overall, the report found that “jurisdictions no longer subject to federal preclearance had purge rates significantly higher than jurisdictions that did not have it in 2013.” Texas, no longer constrained by preclearance requirements, purged around 360,000 more voters in the first election cycle that followed the Shelby County ruling.
Further, Republicans began closing polling places in Democratic-leaning areas populated by minorities. Vanita Gupta, head of the Leadership Conference on Civil and Human Rights, told the New Yorker: “We did a report last year that showed systematic polling-place closures—over sixteen hundred polling places closed between 2012 and 2018 in jurisdictions that were previously covered by the Voting Rights Act.”
A particularly rancid example occurred in this year’s Wisconsin primary, where a crucial GOP seat on the state supreme court was at stake. Polling places in heavily Democratic Milwaukee were reduced from 180 to 5.
Georgia is especially good at eliminating unwelcome voters. In recent years, author Ari Berman told NPR, the state has closed 214 polling places and purged about 10 percent of voters from its rolls. Of the over 530,510 eliminated in 2017, journalist Greg Palast reported, 340,134 (over 60 percent) were purged in error.
In Florida, voters in 2018 overwhelmingly approved a statewide initiative to re-enfranchise 1.4 million former felons. To undermine the initiative, Republican legislators precluded ex-felons from voting unless they paid all pending fines—which, a federal court ruled, was the unconstitutional equivalent of imposing a poll tax. But Republican appellate judges stayed the ruling, and in July the Roberts Court affirmed the stay over Justice Sotomayor’s objection that this “continues a trend of condoning disenfranchisement.” Completing this reversal of Florida’s voters, the appellate judges last week found the Republican legislature’s maneuver constitutional, effectively disenfranchising 774,000 Floridians.
This highlights the critical role of Republican judges in subordinating voting rights to the electoral interests of the party that placed them on the bench. Reports the New York Times: “Five of the six judges who supported the . . . decision were appointed to the court by President Trump. Two of those judges were also former Florida Supreme Court justices named to that bench by [Republican governor Ron] DeSantis. (One of the former justices, Judge Barbara Lagoa, was named by Mr. Trump this week as among those he would consider nominating to a potential future seat on the Supreme Court.)”
Inevitably, Republican measures to suppress minority in-person voting skew the count in swing states where the margin of victory is razor-thin—and in states like Georgia and Texas, where changing demographics would otherwise help Democrats. Taken alone, in 2020 these discriminatory practices could tilt the Electoral College in Trump’s favor. If so, Republican officials and judges have already turned our presidential elections into a pantomime of democracy.
2. GOP attacks on voting by mail.
Mail-in voting has long been allowed in the great majority of states; indeed, several rely on it exclusively. Never before 2020 has the GOP seriously challenged its use.
But the impact of COVID-19 on how Americans cast ballots has moved Trump and his party to launch a naked assault against voting by mail—aimed at disenfranchising Democrats across every demographic. Their stratagem is brutally simple: to force those who worry that their mail-in ballot won’t count to choose between in-person voting and protecting their health.
But there is a sharp partisan divide over how to vote. Perhaps because of Trump’s cavalier attitude toward the pandemic, polling shows that voters intending to vote in person on election day favor Trump by 57 to 37 percent. In contrast, those planning to vote by mail prefer Biden by almost forty points: 67 to 28 percent.
This disparity motivates Republicans to inhibit voting by mail and, even more insidious, to throw out mail-in ballots en masse. One technique is refusing to automatically send mail-in ballots to all eligible voters. Another is exploiting unintentional errors among voters unfamiliar with the process—such as enforcing “exact match” provisions when, for example, a voter signs the ballot using a middle initial when the voting rolls show a full middle name.
Both could change the election. But the practice most likely to throw the Electoral College to Trump is voiding ballots postmarked on or before election day, but received thereafter.
By law, 34 states follow this arbitrary practice. They include five of the six universally acknowledged swing states: Arizona, Florida, Michigan, Pennsylvania, and Wisconsin. The sixth, North Carolina, allows a three-day grace period, so long as the ballot is postmarked on or before election day.
Thus an exponential increase in mail-in voters creates the prospect that millions of Democratic ballots will be disqualified. In Wisconsin’s primary alone, 79,000 ballots postmarked on time were rejected until a judge ordered them counted.
Further, an audit by the Inspector General of the U.S. Postal Service raises the additional specter that—as happened during the primaries—voters won’t receive their mail-in ballots in time to cast them. Finally, the postal service is warning election boards that it can’t guarantee their receipt of timely ballots by election day.
All this erodes public confidence in voting by mail. But Trump and his party are working to undermine its efficacy—and, thereby, discourage its use.
One particularly draconian method is noisily sabotaging the Postal Service’s ability to handle ballots cast by mail. After refusing to countenance $3.5 million in supplemental funding for election resources, Trump said of the USPS: “They don’t have the money to do the universal mail-in voting. So therefore, they can’t do it, I guess.” Trump’s new postmaster general, Louis DeJoy, has slowed the mails by cutting down delivery times, barring overtime for postal workers, and removing sorting machines.
As Mark Joseph Stern points out in Slate, these measures are a template for increasing the volume of late-arrived ballots. He adds this crucial point: “The U.S. Supreme Court’s five conservative justices made it clear that they do not think states are obligated to count late ballots postmarked by Election Day—even if the ballots were delayed by forces beyond a voter’s control.”
Nonetheless, the GOP is taking other avenues to suppress voting by mail. One means catalogued by FiveThirtyEight is to reduce or eliminate drop boxes through which voters can ensure the timely receipt of absentee ballots:
In Ohio, the Republican secretary of state is blocking any county from having more than one ballot drop-off location. . . . In Iowa, the Republican secretary of state is allowing such boxes only at government-owned buildings (as opposed to, say, outside grocery stores). In Pennsylvania, Republicans are suing to prevent the use of drop boxes.
Texas Republicans are trying to prevent election officials in Democratic Harris County from sending vote-by-mail applications to 2.4 million voters. In suburban Atlanta, Georgia Republicans have blocked a similar proposal. In Michigan, Republicans are stalling proposals to speed up the count by processing ballots before election day.
All this evokes banana republics. Regardless of how people vote, Trump’s party has resolved, the majority of ballots actually counted in battleground states must be cast by Republicans.
Early on, Republicans admitted as much. Voting by mail, Trump tweeted, would “LEAD TO THE END OF OUR GREAT REPUBLICAN PARTY.” Similarly, the Republican speaker of Georgia’s House predicted that mailing absentee ballots to registered voters “will be extremely devastating to Republicans and conservatives in Georgia.”
Now, however, Trump, his party, and his corrupt and cynical attorney general are relentlessly recycling the bogus charges of voter fraud Republicans used to undermine in-person voting. Again, their purpose is clear: to inhibit voting by mail, and lay the ground work for reversing Trump’s prospective defeat in the Electoral College through post-election maneuvers.
“With Universal Mail-In Voting,” Trump proclaims, “2020 will be the most INACCURATE & FRAUDULENT Election in history.” Never mind that, as the New York Times editorial board observed, “states that use vote-by-mail have encountered essentially zero fraud.” Expanding such voting, William Barr asserts, would be playing “playing with fire”—claiming, preposterously, that malign foreign powers would start flooding America with mail-in ballots.
Writing in the New Yorker, Steve Coll limned the damage wrought by Trump and his party:
Voting this year . . . will be more risky and, for many people, more difficult than in any recent Presidential election. The pandemic is one reason; another is Trump’s vocal, unabashed campaign of voter suppression, in which he has denounced well-established and secure practices, and spread misinformation about the potential for fraud in mail voting and in the use of drop-off boxes. . . . Trump’s demagoguery is clearly aimed at delegitimizing the election and intimidating voters, and it may also be designed to sway Trump-friendly judges who will decide myriad partisan lawsuits over voting practices. All in all, it constitutes the most blatant use of Presidential power to prevent lawful voting since the days of Jim Crow.
True. Worse, Coll writes:
Trump and his allies appear to be succeeding, at least in the realm of perception: the Pew survey found that sixty per cent of Biden supporters expect voting to be difficult this fall, while just thirty-five per cent of Trump supporters do. That gap almost certainly reflects, in part, the long history of obstacles that Democratic voters of color, particularly African-Americans, have faced when trying to exercise their right to vote. But it also suggests that Trump’s tweetstorms and offhand comments are persuading even many white Democrats that they will have a hard time casting their ballots successfully.
That’s democracy’s antithesis. Yet the Roberts Court has made voting even harder—and more dangerous. This spring, the Court ruled that a federal judge in Wisconsin had wrongly extended the deadline for absentee voting because of the pandemic, and declined to reinstate a lower court decision allowing all Texas voters vote by mail—again, because of the pandemic. “Over the term’s final few months,” writes Willis, the Roberts Court “continued to rubber-stamp the GOP’s voter suppression crusade, refusing to allow a public health emergency to alter their dogmatic belief that it should be more difficult for people—especially nonwhite and lower-income people—to participate in free and fair elections.”
In sum, there is simply no doubt that Republican voter suppression will materially reduce the volume of votes cast for Biden. The only question is whether it will cost him the presidency.
3. Trump may seek to change the results.
But the likelihood that election night will prove chaotic facilitates the ultimate nightmare: that Trump will challenge the legitimacy of an outcome determined by mail-in ballots that favor Biden—and, thereby, steal the election.
In one scenario, Trump will exploit the so-called “blue shift.” This phenomenon surfaced in 2018, when the ongoing count of mail-in ballots changed the relatively modest Democratic gains apparent on election night into a rout that eventually garnered 41 congressional seats. Similarly, victories by Republican senatorial and gubernatorial candidates in Florida were jeopardized by ballots counted after election day—leading Trump to demand that the winner be determined based on the partial count available as of election night.
Here Trump was exploiting a widely held illusion. As elections expert Edward Foley told the Atlantic: “From a legal perspective, there are no results on Election Night, and there never have been. . . . The only thing that has ever existed on Election Night are projected results that the media has helpfully provided to its audiences.”
No matter to Trump. Almost certainly, a record volume of mail-in ballots will significantly delay the final count. Should the interim tally on November 3 be changed by the ongoing tabulation of mail-in ballots in battleground states, is there any doubt that Trump and his party will try to overturn the results by claiming the Democrats stole the election through massive voter fraud?
Surely not if changing the electoral votes of a single state, like Pennsylvania, could allow them to do so.
I won’t reprise here the widely discussed avenues through which Trump could rig the Electoral College—or the ways that Republican House members, state legislatures, election officials or judges could help him. But they are not the stuff of political fiction. In 2000, our machinery for resolving such an impasse proved woefully wanting, and we are now confronted with a rogue president who holds democracy in contempt—and a party that has subverted it for years. Is anyone counting on the Roberts Court to curb them?
That puts the burden on the Biden campaign to turn out its vote; on Biden’s lawyers to fight wherever they must; and, especially, for all voters who value democracy to do all they can. That means voting early, by whatever method; rallying friends and family; and volunteering time and effort to ensure maximum participation.
Here’s the measure of America’s decline: The only certain means of protecting our democracy is a margin for Biden so overwhelming that it will survive whatever Trump and his party contrive. Absent that, the Republican template for turning presidential elections into shams may become too embedded to reverse.