How Trump seeks to undermine legitimacy of the vote

Analysis

With just over a month to go until the polls, the dominant issue is not about policy differences but whether the US can even conduct a fair election where the result will be respected.

New York | At a rally in Pennsylvania on Saturday Donald Trump told a sprawling crowd that the Democrats would resort to theft to try to win a toss-up state that is vital to both parties’ fortunes in this tumultuous election.

“They’re going to try to steal this election,” the US President declared, without any evidence other than his own intuition. “The only way they can win Pennsylvania, frankly, is to cheat on the ballots.”

Donald Trump on the hustings in Minneapolis on Wednesday. The President has mounted a rhetorical assault to discredit mail voting, insisting — without evidence — that it is rife with fraud AP

A week earlier, a Pennsylvania supreme court decision on something known as a “naked” ballot offered a clue as to how Mr Trump hopes to prevail in a contest in which unprecedented numbers of Americans are expected to cast their votes by mail to avoid the risk of coronavirus infection — and one in which he is currently well behind in the polls.

Mail-in voters in Pennsylvania will need to send their ballot contained within two separate envelopes. The court found that any mail-in ballot not enclosed in a second envelope — to preserve its secrecy — would be disqualified.

That may seem like a technicality. Yet the top elections official in Philadelphia, Pennsylvania’s biggest city, estimates it could result in 100,000 ballots being thrown out — this in a state that Mr Trump won by a mere 44,000 votes in 2016. That would take a bigger toll on Joe Biden, the Democratic nominee, since opinion polls suggest Democratic supporters will resort to mail voting in much greater numbers than Republicans.

“The naked ballot ruling . . . is going to cause electoral chaos,” Lisa Deeley, the city election chair, predicted in a letter to state legislators. “I hope you consider this letter as me being a canary in the coal mine.”

With just over a month to go until the US election, the first presidential debate would normally have been the the trigger to concentrate the minds of voters on the candidates and their policies. But this year, the dominant issue is whether the US can even conduct a fair election where the result will be respected.

An employee loads vote-by-mail ballots into a truck for transport to a post office at the Broward Supervisor of Elections Office in Lauderhill, Florida. AP

The naked ballot is part of a multi-front legal battle Mr Trump’s lawyers are waging in swing states across the country to try to clamp down on mail ballots.

In states such as Ohio, Wisconsin, Michigan, Florida and Pennsylvania, for example, partisan lawyers are now fighting to determine whether drop boxes, which were used in June primaries to relieve pressure on a creaking postal service and spare voters from having to visit crowded polling stations, will be allowed — and if so, how many? And there are many other issues: how closely a voter signature will have to match that kept on record for their mail ballot to be counted; whether mail ballots will have to be postmarked or received by election day; how soon they can begin to be counted — and for how many days after election day?

Meanwhile, from the campaign trail, Mr Trump has mounted a rhetorical assault to discredit mail voting, insisting — without evidence — that it is rife with fraud, and that this election will be “the most rigged” in US history. At the end of the debate in Cleveland on Tuesday, Mr Trump claimed poll watchers had been barred from observing early voting in Philadelphia. “They were thrown out. They weren’t allowed to watch. You know why? Because bad things happen in Philadelphia, bad things.”

“In any other sane, rational, reasonable time in America we would be trying to make voting as easy as possible,” says Michael Nutter, the former Democratic mayor of Philadelphia, citing the pandemic. “But in the Donald Trump world, he seeks to make it as difficult as possible, as confusing as possible.”

Jason Snead, executive director of the Honest Elections Project, a group that has filed lawsuits in support of Mr Trump in Michigan and Minnesota, argues that Democrats are trying to use COVID and the courts to push through changes to election law that they have been unable to achieve through state legislatures.

He warns that a Democratic victory based on late-arriving mail ballots would not be accepted by much of the country. “That’s not really a legitimate election — in my eyes, and in the eyes of a lot of folks. We want to avoid that outcome.”

Legal minefield

The legal confusion surrounding mail balloting is leading many election specialists to warn that it could be days before a winner is confirmed. In one scenario, Mr Trump could declare victory on election night, based on a tally of in-person voting, while piles of mail ballots are still waiting to be counted in key states. By law, neither Pennsylvania or Michigan can begin processing their mail ballots until election day.

“Creating this big question in the public’s mind about what’s going on with this election and then being able to challenge mail ballots, and throwing out enough of them in key states, could rig the election for Trump,” says Lorraine Minnite, a professor at Rutgers University, who has written extensively about voter suppression.

“The pandemic,” Prof Minnite adds, has “created sort of a new terrain for the use of voter fraud propaganda because of the shift to mail balloting.”

Mr Trump’s insistence that he would not necessarily accept the result if he is defeated is also stirring unfamiliar fears in America about political instability and a constitutional crisis if the election is anything other than a landslide.

Stuart Gerson, a longtime Republican election lawyer and former justice department official, worries that election night will descend into a series of legal fights over mail ballots in swing states across the country. Whipped up by the President’s rhetoric, Mr Trump’s supporters may take to the streets. Groups like the Tea Party-inspired True the Vote want to dispatch thousands of military veterans to precincts to serve as poll monitors.

If it’s a close election, I think we’re going to be in a lot of trouble.

— Richard Hasen, law professor at University of California

“I’ve seen all sorts of scenarios involving the military and all kinds of things that previously have been unimaginable,” says Mr Gerson, who accuses Mr Trump and his attorney-general, William Barr, of “fanning those flames . . . with demonstratively false statements about the reliability of mail voting”.

Richard Hasen, a law professor at University of California at Irvine, and author of the book Election Meltdown, is not surprised that Republicans would try to suppress turnout to improve their chances of victory.

What is striking is the intensity of the effort and the zestful involvement of Mr Trump in dirty work typically left to others. “Have we ever had a President who has consistently railed against the legitimacy of the election and tried to undermine voter confidence by claiming it’s going to be rigged?” Prof Hasen asks. “If it’s a close election, I think we’re going to be in a lot of trouble.”

Fraud myths

An election during a pandemic was always bound to be difficult for America. The country’s decentralised nature means that November 3 will be comprised of thousands of contests administered by individual counties and overseen by local poll workers of varying quality, and with often limited resources. Poll workers tend to be older, and many stayed home during the June primaries rather than risk infection, leading to the closure of voting stations around the country.

Some western states have a long tradition of voting by mail. Oregon and Colorado, for example, send ballots to all registered voters. Other states require voters to request them. In some, such as Texas, they must present a legal justification for doing so.

The logistical difficulties of a sudden switch to mail voting en masse were evident in New York in June. It took officials six weeks to count a deluge of absentee ballots in the Democratic primary for the city’s 12th Congressional district. The postal service struggled to cope. Thousands of ballots were delivered late, and so never counted. California suffered similar mishaps.

“Voters are much more likely to make errors when they cast mail-in ballots. We saw very high rates of rejected ballots because voters make technical errors because they’re not experienced at voting in this way,” Prof Hasen explains. The possibilities for error are many. In New York, for example, sealing a mail ballot envelope with scotch tape is grounds for disqualification.

For all the challenges voters face, fraud does not appear to be one of them. In spite of the rich folklore about ballot stuffing in the days when political machines ruled big city politics, Prof Minnite says incidents of fraud in the modern day are “exceedingly rare”. She spent nearly a decade studying electoral data for her book The Myth of Voter Fraud.

Democrat Representative Peter Welch, of Vermont, quietly urges people to vote during a committee hearing in Washington this week.  Bloomberg

Other academics have reached similar conclusions. Sharad Goel, a Stanford University statistician, and colleagues reviewed the 130m votes cast in the 2012 election. They found possible double-voting in one of every 4000 votes cast, or 0.025 per cent. The rate was so low, they noted, it could be explained entirely by clerical error — not fraud.

Still, the conservative Heritage Foundation maintains a database that it describes as a “sampling of recent proven instances of electoral fraud”. It counts 1298 cases since 1982, which, it says, “demonstrate the vulnerabilities in the election system and the many ways fraud is committed”.

Each fraud, the Heritage Foundation argues, dilutes a legitimate vote, and so is another form of disenfranchisement. Its aim, therefore, is to take “reasonable steps” to prevent cheating while still making it easy for honest citizens to vote.

After his 2016 victory — in which he lost the popular vote by nearly 3m ballots to Hillary Clinton — Mr Trump complained of massive fraud, including widespread voting by illegal immigrants, and established a panel led by vice-president Mike Pence and Kansas Republican Kris Kobach to investigate. It disbanded seven months later without issuing a report.

Most damning of all to the so-called “ballot security” movement may be the testimony of Benjamin Ginsberg, the Republican election lawyer, who represented the Bush campaign in the 2000 Florida recount. In a recent Washington Post editorial, Mr Ginsberg stated that: “The truth is that after decades of looking for illegal voting, there’s no proof of widespread fraud. At most, there are isolated incidents — by both Democrats and Republicans. Elections are not rigged.”

“These are painful conclusions for me to reach,” Mr Ginsberg, who recently retired, acknowledged.

Voter suppression

While fraud appears to be rare there is a long and well-documented American tradition of imposing measures to disenfranchise minority voters. It is in tension with the country’s lofty mission of expanding voting rights, and, say experts, tends to flare at moments of great societal shift.

The southern states, for example, used devious ingenuity and outright violence to effectively strip black men of the rights they had gained during Reconstruction and through the 15th Amendment. New York City used similar means to thwart immigrants and the poor.

“Race and class explain it,” says Prof Minnite. “The demographic changes of the country are really at play underneath all this.”

The 1965 Voting Rights Act outlawed literacy tests and other abuses. But enterprising political operatives still found ways to thwart minority voters. In November 1981, a man wearing an armband identifying him as a member of the Ballot Security Task Force stopped Lynette Monroe, a young black woman, on her way to the polls in Trenton, New Jersey. He asked Ms Monroe if she had a voter registration card, and warned her — erroneously — she could not vote without one.

It turned out he was one of several off-duty police hired by the Republican party to intimidate voters in minority neighbourhoods. Some were armed and wearing uniforms. The Republican candidate, Tom Kean, won the governor’s election by fewer than 2000 votes. One of his aides was a young Roger Stone, who went on to become a close confidante of Mr Trump.

“I’m not seeing anything new. It’s just repackaged,” says Lee Harris, pastor at the Mount Olive Baptist Church in Jacksonville, Florida, who recalls being told by county officials on election night in 2000, during the Bush-Gore contest, that maybe 500 ballots had been disqualified for irregularities.

The actual figure turned out to be nearly 27,000 ballots, or about 9 per cent of the total, and they came disproportionately from Jacksonville’s black neighbourhoods. Florida — and the election — was ultimately decided for Mr Bush by 537 votes.

Jacksonville’s black residents have long complained about a paucity of polling stations in their neighbourhoods that result in long lines, or polling stations that are shut down with little notice, or relocated to places that are distant from public transportation.

This election season, Florida politicians have found a novel way to disappoint Mr Harris, who cast his first vote as a student in 1960 amid the optimism of the civil rights movement. It concerns a ballot initiative to restore voting rights to Florida’s felons after they had completed their sentences. It passed in 2018 with 64 per cent support. Activists touted it as a historic achievement that would re-enfranchise about 1.4m people, many of them black men.

But the state legislature subsequently gutted the law with an onerous interpretation of what constituted a “completed” sentence. It should mean not only serving a prison sentence and parole, they determined, but paying restitution to victims as well as court costs and other administrative expenses that even the state was not equipped to calculate. Technically, casting a vote without having paid these unknown costs would be illegal.

“Who does it benefit to say even if you do the crime and you’ve done the time and paid your debt to society, you still are less than human?” asks Mr Harris.

Pivotal turnout

The pandemic also threatens to be yet another cause of voter suppression. It has prevented campaign workers from going door to door to register voters, and it has made it a hazard to visit a polling station in person.

Mr Harris has taken to Facebook Live and Zoom to try to educate his community about the intricacies of voting in a pandemic — whether by mail or taking safety precautions if they go to the polls. It may not be easy. But, the pastor insists, they will exercise a cherished right.

“The people will vote,” he says. “They are going to vote.”

He know if there’s massive turnout, he senses that he probably can’t win.

— Michael Nutter, former Philadelphia mayor

Meanwhile, in Pennsylvania and other key states the focus will remain on the courts and the legislature. The state supreme court last week ruled that drop boxes could be used, handing a potentially significant victory to the Democrats.

But the state’s Republican-controlled legislature is considering a bill that would override that decision, and bring forward the deadline to apply for an absentee ballot. The Republicans and Mr Trump have petitioned to allow people to serve as poll-watchers outside the Pennsylvania county where they are registered to vote.

In an ominous echo of the Ballot Security Task Force, the President has threatened to send law enforcement to polling places.

To Mr Nutter, the former Philadelphia mayor, such acts are desperate and immoral — but not necessarily illogical.

“He knows,” Mr Nutter says of the President, “if there’s massive turnout, he senses that he probably can’t win”.

Financial Times

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