I spoke with Madeline Brand on KCRW’s Press Play.
Monthly Archives: September 2020
“Uncivil War”
Announcement:
In the lead-up to the 2020 election, Uncivil War, a new documentary from the Bertelsmann Foundation, explores three factors eroding the US electoral system: gerrymandering, voter suppression, and disinformation. The film unravels a web of threats to American elections, separates truth from fiction, and exposes a hidden war against democracy itself.
The US Premiere of Uncivil War will be free and online, October 8, 6:30-9:15pm ET. You can register here.
“Trump Renews Fears of Voter Intimidation as G.O.P. Poll Watchers Mobilize”
NYT:
The group of Trump campaign officials came carrying cellphone cameras and a determination to help the president’s re-election efforts in Philadelphia. But they were asked to leave the city’s newly opened satellite election offices on Tuesday after being told local election laws did not permit them to monitor voters coming to request and complete absentee ballots.
On social media, right-wing news sites and in the presidential debate on Tuesday night, President Trump and his campaign quickly suggested nefarious intent in the actions of local election officials, with the president claiming during the debate that “bad things happen in Philadelphia” and urging his supporters everywhere to “go into the polls and watch very carefully.”
The dark and baseless descriptions of the voting process in Philadelphia were the latest broad-brush attempt by the Trump campaign to undermine confidence in this year’s election, a message delivered with an ominous edge at the debate when he advised an extremist group, the Proud Boys, to “stand back and stand by” in his remarks about the election.
The sinister insinuations and calls for his followers to monitor voting activity are clear. What’s less apparent is how the Trump campaign wants this to play out….
The Republican establishment has ample reason to want to avoid accusations of voter intimidation. In the early 1980s, after the party sent hired workers sporting armbands reading “National Ballot Security Task Force” into Black and Latino precincts in New Jersey to challenge voters’ eligibility, it operated under an increasingly strict federal consent decree that eventually barred it from conducting or advising on any sort of “ballot security” activities — even by unpaid volunteers.
Richard L. Hasen, an election-law expert at the University of California, Irvine, said that because of the president’s influence, the Republican National Committee was at risk of being associated with the same kind of behavior that led to the consent decree. He noted that the 2017 federal court ruling lifting the consent decree stated in a footnote that Mr. Trump had clearly encouraged voter suppression during the 2016 presidential campaign, but that his behavior could not be tied to the national party.
Now, however, he effectively controls the party.
“While I was worried about Trump norm-breaking in 2016, it is far worse for a sitting president to be undermining the integrity of the election,” Dr. Hasen said. “Whether Trump means the things he says or not, he’s convincing his most ardent supporters that the only way he loses is if the Democrats cheat.”
He added, “That’s profoundly destabilizing and scary.”
“Memory sticks used to program Philly’s voting machines were stolen from elections warehouse”
A laptop and several memory sticks used to program Philadelphia’s voting machines were stolen from a city warehouse in East Falls, officials confirmed Wednesday, setting off a scramble to investigate and to ensure the machines had not been compromised.
Though it remains unclear when exactly equipment was stolen, sources briefed on the investigation said it vanished this week. The laptop and USB drives — the only items believed to have been taken — belonged to an on-site employee for the company that supplies the machines.
City officials vowed Wednesday that the theft would not disrupt voting on Nov. 3.
“We are confident,” said Nick Custodio, a deputy to Lisa Deeley, chair of the city commissioners, who oversee elections, “that this incident will not in any way compromise the integrity of the election.”
But behind the scenes, they fretted about how President Donald Trump and his allies might use the news to cast doubt on the integrity of the city’s elections in light of false claims and conspiracy theories he cited during Tuesday’s presidential debate.
The commissioners initially refused to confirm the theft or that an investigation had been opened. They only did so after The Inquirer informed them it would be reporting the incident based on sources who were not authorized to publicly discuss it.
“Republicans Are Slowing Down Mailed-In Vote Counts in Key Swing States”
The bad news is that Republican officials in three swing states, Pennsylvania, Michigan, and Wisconsin, are blocking legislation that could allow for the early processing of absentee ballots—purposefully making it take longer to get the election results. In other words, they are engineering the absentee vote counting delays that Trump is already planning to complain about and sue over.
In each of these states, current law allows absentee vote processing to begin either on or after Election Day. Over the last several months, county clerks and advocates have pushed for that period to be extended, all to enable elections officials to begin processing the votes more quickly, so there is less of a delay in announcing the outcome to the public. But in each of those states, such bills have been blocked by Republican leadership in the state houses. All of those states have a Democratic governor and a Democratic secretary of state pushing for such bills, but Republicans control the legislatures. In Pennsylvania, legislation was introduced in June to begin processing and counting ballots early, but it went nowhere. In Wisconsin, Democrats introduced a bill in May to begin processing ballots early, but not tabulate them until after the polls closed. That, too, faced GOP resistance.
In Michigan, there has been slightly more progress. After months of advocacy by county clerks, including Republicans, to give elections officials the ability to get a head start on processing absentee ballots, the Michigan state house passed a bill last week after sitting on it for months to extend early absentee vote processing—by just one day. That’s better than nothing, but it’s hardly enough time to meet the needs of elections officials.
Michigan Secretary of State Jocelyn Benson told me it only gives elections officials 10 hours to start processing ballots on Election Day, which includes additional administrative work. Some clerks have estimated that they would only net three hours that day for processing ballots.
“Fight over Wisconsin mail vote deadline may head to Supreme Court”
A federal appeals court on Wednesday rebuffed Wisconsin Republicans who had asked the court to temporarily halt a ruling that pushed back the battleground state’s mail-vote due date, possibly teeing up a GOP bid for review by the U.S. Supreme Court.
“Supreme Court Expedites Review of Trump Appeal Over Census Count”
The U.S. Supreme Court put a clash over undocumented immigrants and the census on a fast track, granting a request by President Donald Trump’s administration to expedite handling of his appeal.
Trump is trying to exclude undocumented immigrants from the 2020 census count, which will determine the allocation of congressional seats and federal dollars. A three-judge federal panel ruled on Sept. 10 that Congress didn’t give the president authority to do that.
The Supreme Court ordered opponents of Trump’s plan to file a brief by Oct. 7. That would let the justices determine in October whether they will hear arguments. Trump is seeking an argument session in late November or early December.
“Court Permanently Strikes Down Montana Law That Restricts Native Voting Rights”
On September 25, 2020, a Montana court permanently struck down a state law that severely restricted the right to vote for indigenous people living on rural reservations.
Western Native Voice v. Stapleton, filed in March of this year by Native American Rights Fund , the American Civil Liberties Union, and ACLU of Montana, challenged the so-called Montana Ballot Interference Prevention Act (BIPA), a law that imposed severe restrictions on ballot collection efforts that are critical to Native American voters living on rural reservations.
The law set an arbitrary limit on the number of ballots an individual could collect and also restricted the categories of individuals who were permitted to collect ballots. These limitations were intended to suppress turnout on rural reservations, where geographic and socioeconomic barriers to voting make ballot collection even more critical.
“To Avoid an Election Meltdown, Officials Must Stockpile Backup Paper Ballots”
New Brennan Center report.
“Federal Court Rules Alabama Must Take Steps to Better Protect Voters During COVID-19 Pandemic”
Release:
A federal court issued a decision today that will help protect the health and right to vote of medically vulnerable Alabamians.
The ruling in People First of Alabama v. Merrill means Alabama voters will not need a witness or notary to vote by mail if they have an underlying medical condition and provide a statement.
The decision also stipulates that voters 65 and older with an underlying medical condition won’t need an ID so long as they provide other identifying information such as their driver’s license number or last four digits of their Social Security number. In addition, it lifts Secretary John Merrill’s ban on curbside voting.
The lawsuit was filed by the NAACP Legal Defense and Educational Fund (LDF), Southern Poverty Law Center, American Civil Liberties Union, ACLU of Alabama, and Alabama Disabilities Advocacy Program.
Republicans in Pennsylvania House Push Resolution That Would Give House Committee Investigatory and Subpoena Power on Election Issues; Potential Prelude to Use of Powers to Appoint Presidential Electors?
You can find the proposed resolution at this link. Governor Wolf (a Democrat) has condemned the move (via Ryan Grim).
I’m not saying that the Pa legislature would use the power, but this is a first step toward trying to potentially appoint electors directly.
Keep an eye on this.
“The growing concerns over Trump and a peaceful transition, explained; It’s unlikely that Trump will steal the election. But unlikely doesn’t mean impossible.”
Zack Beauchamp for Vox:
The general sense among experts on American politics is that the nightmare scenarios — an outright stolen election, each party attempting to inaugurate a different president on January 20, or clashes between armed supporters of each side — are only plausible if the election is close, and even then, they remain unlikely.
“Unless there’s a catastrophic failure on Election Day … then the election only goes into overtime if the election is close enough to litigate in a state that is essential to the Electoral College outcome. That’s unlikely if the polls are even close to accurate,” Rick Hasen, a law professor at the University of California Irvine and author of the recent book Election Meltdown, tells me.
But Trump’s 2016 win and the emergence of a pandemic earlier this year were both “unlikely,” too. If we’ve learned anything from the past few years of politics, it’s that this kind of low-probability, high-impact event can happen — and needs to be planned for if the worst is to be avoided.
“In my mind, the worst-case scenario is the possibility of dueling inaugurations … a situation where we’re facing the end of the republic as we know,” says Franita Tolson, an election law expert at the University of Southern California.
“The Attack on Voting; How President Trump’s false claim of voter fraud is being used to disenfranchise Americans.”
Jim Rutenberg in the New York Times Magazine:
The strategy was now in full view: Flood every state, every television news network, every newspaper and news feed with manufactured evidence of fraud to suppress Democratic votes before Election Day — and to knock them out of state-by-state tallies in the courts and counting rooms afterward. In September, Trump’s power to affect the outcome reached a new level when Justice Ruth Bader Ginsburg died and Mitch McConnell lined up the votes for a fast confirmation of the Supreme Court’s sixth conservative member. Increasingly, longtime election experts were seeing “a pathway for something other than voters choosing the next president,” said Richard Hasen, a professor at the University of California-Irvine School of Law who writes the widely read Election Law Blog.
The movement to convince the country that voter fraud is a present danger to democracy has itself become a present danger to democracy. It has melded fully into the president’s re-election campaign. The argument is now that the only way Trump can lose this election is through sweeping voter fraud that benefits his opponent; any outcome in which he doesn’t win, therefore, can be considered illegitimate. This, Trump says, is why he refuses to commit to a peaceful transfer of power: Only fraud can beat him, and fraud is everywhere.
But unlike four years ago, when his campaign laid the groundwork for a similar argument, Trump is now aiming the full force of the United States government — its lawyers, its Postal Service, even its armed officers — at a false threat that has been used to disenfranchise American citizens since the darkest days of the republic. He is doing it in the service of one goal: to maintain his own grip on power.
“When you see them cheating with those ballots, all of those unsolicited ballots, those millions of ballots, you see them, any time you do, report them to the authorities,” he said at a late September election rally in Toledo, Ohio. “The authorities are waiting, and watching.”
Charles Zelden on Florida 2000: “Guest opinion: Legislatures picking electors to the Electoral College: It could not only happen, it almost did”
On December 7, 2000, in the midst of the Florida recount crisis, Florida Senate President John McKay and Speaker of the House Tom Feeney announced that, “the Legislature would choose the electors, as permitted by the U.S. Constitution, if the court disputes were continuing and there was not yet ‘finality’ on December 12.” When the Florida Supreme Court announced a statewide recount order, the stage was set for a confrontation. So long as there was a chance for the December 12 “safe harbor” to be violated, the Republican legislators were set to act.
On Tuesday, December 12th, the Florida House did just this, voting in George W. Bush’s electors as the state’s official slate to the Electoral College. The next day the Florida Senate was prepared to do the same. It was at this point that the U.S. Supreme Court made the whole matter largely moot by issuing its ruling in Bush v. Gore. With Gore’s quick concession, the need for the Florida Senate to act disappeared.
And check out Zelden on this podcast, talking about the third edition of his Bush v. Gore book.