I’ve Never Been More Worried About American Democracy Than I Am Right NowRoundup
tags: Donald Trump, 2020 Election, vote by mail, election fraud
Richard L. Hasen is a professor of law and political science at the University of California–Irvine School of Law and is the author of the forthcoming book Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy.
With less than six weeks to go before Election Day, and with over 250 COVID-related election lawsuits filed across 45 states, the litigation strategy of the Trump campaign and its allies has become clear: try to block the expansion of mail-in balloting whenever possible and, in a few key states, create enough chaos in the system and legal and political uncertainty in the results that the Supreme Court, Congress, or Republican legislatures can throw the election to Trump if the outcome is at all close or in doubt. It’s a Hail Mary, but in a close enough election, we cannot count the possibility out. I’ve never been more worried about American democracy than I am right now.
Much of the blizzard of election litigation concerns the casting of ballots by mail, a means of voting that has exploded thanks to COVID-19, and the fears many people have of voting in person during a pandemic. Rules for casting mail-in ballots vary from state to state, and some are onerous during a pandemic, such as a requirement to have an absentee ballot notarized. There are also serious questions about timing; even without all the tumult at the United States Postal Service, some states allow voters to request absentee ballots in the period close to the election, and there is real fear that voters will not get their ballots back in time to elected officials to be counted. Some state and federal courts have responded to these lawsuits by relaxing technical requirements, such as allowing ballots to be counted if they arrive after Election Day so long as they are postmarked by Election Day (or if they arrive shortly after Election Day with no postmark, given that USPS does not always put a postmark—or a legible one—on ballot envelopes).
Trump has made repeated and loud unsubstantiated claims of widespread voter fraud in relation to mail-in ballots, even though he and his allies have voted by mail themselves and even as the campaign has begun encouraging more mail-in balloting among his own supporters. The Trump and Republican litigation strategy has been to fight efforts to expand voting by mail: They have opposed expanded use of government drop boxes to return absentee ballots, extension of deadlines for ballot return, and state decisions to proactively send mail-in ballots to all active registered voters. Four states—California, Nevada, New Jersey, and Vermont—are doing so this time, joining the five other states that already conduct their elections almost exclusively by mail. The Trump campaign has through litigation attacked the expansion of mail-in balloting in Nevada, so far unsuccessfully, and Attorney General William Barr has ridiculously claimed that election officials—led by a Republican secretary of state—will somehow “find” 100,000 ballots to help Joe Biden win the state if Trump is in the lead.
The Trump strategy of fighting the expansion of mail-in balloting appears to be twofold. To begin with, the campaign appears to have made the calculation that lower turnout will help the president win reelection. This may explain why Pennsylvania Republicans are planning on going to the U.S. Supreme Court to argue against a state Supreme Court ruling allowing the counting of ballots arriving soon after Election Day without a legible postmark. They argue that doing so unconstitutionally extends Election Day beyond Nov. 3 and takes power away from the Pennsylvania Legislature to choose presidential electors.
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