Tag Archives: Richard Hasen

2020 General Election, Democracy, Republicans

No Courage of their convictions? Or no convictions to uphold democratic governance?

In a letter today, Emily Murphy informed Joe Biden that the General Services Administration would permit the formal transition process to begin. After experiencing widespread criticism for the unprecedented delay, as Donald Trump has refused against all evidence to admit that he lost the election and has raged that he was cheated, Ms. Murphy insisted that no one had pressured her to slow walk the approval; rather, she had difficulty determining what to do because the Presidential Transition Act of 1963, as amended, “provides no procedures or standards for this process.”

Her missive resembled a defensive and obstinate, ‘Excuse me.’

There have been no reasonable doubts raised about the election’s outcome, notwithstanding Trump’s hurt feelings, his campaign’s frenzied maelstrom of litigation, or conservative media’s carnival of disinformation.

Joe Biden beat Donald Trump handily. By roughly six million votes. And, though some states were relatively close, by convincing margins that delivered a 306 to 232 Electoral College victory.

It is safe to say that few United States senators harbor any doubts about this — even Republican senators. Yet with Pennsylvania Senator Pat Toomey’s statement on Saturday, he became only the fifth Republican in the upper chamber (if we allow Marsha Blackburn a do-over) to acknowledge Biden’s victory. Ohio’s Rob Portman followed today, getting us up to six (out of fifty).

Why the playacting or silence by GOP leaders? They were mollifying an angry Donald Trump. And why not? As one Republican official explained:

“What is the downside for humoring him for this little bit of time? No one seriously thinks the results will change.”

The downsides are to the institutions that sustain democratic government, to respect for the people’s vote and the outcome of the election, to the sanctity of a peaceful transfer of power.

And — of course — to the winning candidate. Of the opposing party. That is to say: there is a downside to President-elect Joe Biden.

Let’s acknowledge: that’s an advantage to Republicans. Crippling the Biden presidency is a goal of Donald Trump, of Mitch McConnell, and of every Republican partisan who views Democrats as an enemy tribe.

Judging by his actions, Trump appears to have a motive other than overturning the election. He is determined to cripple Biden’s presidency even before it becomes official. No defeated president has ever undertaken such an audacious and anti-democratic act. There are short-term and longer-term consequences that could deeply affect Biden’s ability to govern.

. . .

This assault on the system, the government, the integrity of elections, the institutions of democracy, and on the truth, means Biden will take the oath of office with perhaps a third or more of the electorate viewing him as illegitimate. No amount of wooing will bring them around, however genuine Biden is in his outreach. — Dan Balz, “A vindictive Trump seeks to undermine Biden’s presidency”

Republican senators, who know full well who won the election, also know full well what Trump is up to. They understand that when playing along with Trump, they are also crippling the president-elect. 

They have made a deliberate choice. It may be possible to look past (if not excuse) the blunt, clumsy shenanigans of a GSA administrator trying to please her superiors.  She can’t do much more damage than she’s already done.

It is tougher to stomach the undemocratic stratagems of U.S. senators — leaders of the Republican Party — who lack the courage of their convictions, or simply the convictions, to uphold democratic values.

Richard Hasen observes (“Trump’s Legal Farce Is Having Tragic Results”):

By the time President-elect Biden takes the oath of office, millions of people will wrongly believe he stole the election. At least 300 times since Election Day, Mr. Trump has gone straight to his followers on social media to declare the election rigged or stolen and to claim, despite all evidence to the contrary, himself as the real victor. Mr. Trump’s false claims will delegitimize a Biden presidency among his supporters. It should go without saying that a democracy requires the losers of an election to accept the results as legitimate and agree to fight another day; Republican leaders echoing Mr. Trump’s failure to support a peaceful transition of power undermine the foundation of our democracy. It’s not only the fact that we have had to say this, but that we keep having to repeat it, that shows the depths that we have reached.

E.J. Dionne notes that “Joe Biden’s victory offered the cheerful prospect that we might begin to detoxify our politics.” Biden pledged “to be the president of all Americans and honored the dignity of voters who had supported Trump in the past by expressing an understanding of their discontents.”

And the GOP’s response to the outreach? With just a handful of exceptions, abject refusal to stand up against the anti-democratic lunacy of Trump’s efforts to nullify the results of a fair election.

Dionne suggests that we are confronted with “a form of conservatism that openly disdains democracy.” I am on board with Dionne regarding the antipathy of the Republican Party for the democratic tradition:

Those who lack the conviction to sustain that tradition by defending rationality and the democratic rules of engagement forfeit their standing to ask the rest of us to believe that they are operating in good faith.

(Image: Thomas Paine via Wikimedia Commons.)

Democracy, Donald Trump, Republicans

President Donald Trump is brazenly attempting to subvert a democratic election in plain sight

The President of the United States is trying to steal the 2020 election, which he lost decisively to Joe Biden. He is doing so in plain sight, while the leaders of the Republican party either egg him on, play along with the dishonest charade, or remain mute.

President Trump has invited the leaders of Michigan’s Republican-controlled state legislature to meet him in Washington on Friday, according to a person familiar with those plans, as the president and his allies continue an extraordinary campaign to overturn the results of an election he lost.

Trump’s campaign has suffered defeats in courtrooms across the country in its efforts to allege irregularities with the ballot-counting process, and has failed to muster any evidence of the widespread fraud that the president continues to claim tainted the 2020 election.

Trump lost Michigan by a wide margin: At present, he trails President-Elect Joe Biden in the state by 157,000 votes. Earlier this week, the state’s Republican Senate majority leader said an effort to have legislators throw out election results was “not going to happen.”

But the president now appears to be using the full weight of his office to challenge the election results, as he and his allies reach out personally to state and local officials in an intensifying effort to halt the certification of the vote in key battleground states.

In an incendiary news conference in Washington, Rudolph W. Giuliani, the former New York mayor who is now serving as Trump’s lead attorney, made baseless claims that Biden had orchestrated a national conspiracy to rig the vote.

Trump’s team appear to be increasingly focused on Michigan as a place where Republican officials — on the state’s Board of Canvassers and in the legislature — might be persuaded to overturn the results. — Tom Hamburger, Kayla Ruble, David A. Fahrenthold, and Josh Dawsey (“Trump invites Michigan Republican leaders to meet him at White House as he escalates attempts to overturn election results”). [Emphasis added.]

Rick Hasen, among the foremost authorities on election law, said this: “It’s easy to joke about this, and Rudy has become the butt of…jokes. On the other hand, this is deadly serious stuff. They’re talking about trying to disenfranchise hundreds of thousands of people, and take the election away from the winner and hand it to the loser.”

There are sixty-two days until the inauguration of Joe Biden. Donald Trump — whose public schedule has been virtually empty for the past two weeks — is virtually bunkered down in the White House. His attention is not on a raging coronavirus, which is infecting, hospitalizing, and killing an unprecedented number of Americans, but on how to disenfranchise hundreds of thousands of voters — mostly Black — so he can claim a victory that is not his.

And Republican leaders offer no objection. Professor Hasen has a message for them: “If you are in a position of power and you are wondering if now is the time to show some courage, the answer is unequivocally yes.”

While these efforts — of a flailing wannabe autocrat and his inept accomplices — appear to be playing out like a ridiculous farce, this is serious stuff. A presidential election and a peaceful transition of power in the United States of America are in the balance.

Even Trump’s critics, who have warned about the erosion of our democratic institutions, might have expected — after Biden’s substantial win seemed to put Trump beyond cheating distance — that by this time the leadership of the Republican Party would have pushed back against this reckless, lawless rampage.

But, these are the men and women who saw nothing in Trump’s shakedown of a foreign leader to warrant impeachment (or censure or even a slap on the wrist), the same folks who have watched as hundreds of thousands of Americans have died, as the White House shunned accountability, … and so on and so on and so on — for four years.

The leadership of the Republican Party is beneath contempt.

(Image: Rudy Giuliani’s theatre of the absurd press conference from The Guardian video.)

2020 General Election, Democracy, Off the Rails, Republicans

An increasingly authoritarian GOP has a plan to steal the 2020 election for Donald Trump

President Donald Trump on the November 2020 election:

● “The only way we’re gonna lose this election is if the election is rigged. Remember that. The only way we’re gonna lose this election. So we have to be very careful.”

● “So this is a disaster waiting to happen. The only hope we have, really, other than going through a long unbelievable litigation at the end after it’s over, is we’re gonna win. We’re not going to lose this except if they cheat. That’s the way I look at it.

We can’t let ’em cheat. We can’t let ’em. . . .Our country is at stake . . . Our country is at stake, because these people will destroy our country. We can’t let this happen. And this is a scam. They know it, the media knows it, but the media doesn’t wanna cover it. They know exactly what’s going to happen and so do I. But the Democrats know better than all of us what’s gonna happen.”

● “We’re gonna have a victory on November 3rd the likes of which you’ve never seen. Now we’re counting on the federal court system to make it so we can actually have an evening where we know who wins, okay? Not where the votes are gonna be counted a week later, or two weeks later. . . .”

[Q: Win, lose, or draw in this election, will you commit here today for a peaceful transferal of power after the election?]

● “Well, we’ll have to see what happens. You know that I’ve been complaining very strongly about the ballots and the ballots are a disaster. . . .

We wanna have — get rid of the ballots and you’ll have a very trans — you’ll have a very peaceful — There won’t be a transfer, frankly. There’ll be a continuation. The ballots out of control. You know it. And you know who knows it better than anybody else? The Democrats know it better than anybody else.”

The relentless campaign to deny the integrity of the upcoming election is part of a larger Republican plan, set out in plain sight, to throw the election to Donald Trump.

In How Democracies Die, Steven Levitsky and Daniel Ziblatt describe the informal rules or norms that serve as the guardrails of our democracy, forestalling a democratic breakdown  – and a Republican Party more than willing to plow through those guardrails to gain political advantage. As the authors explain, “political leaders, and especially political parties,” play the critical roles in preserving democracy. The GOP has shunned this role.

Nearly two decades after the ascendency of Newt Gingrich, after Bush v. Gore, and half a dozen years after publication of Mann and Ornstein’s It’s Even Worse Than It Looks, no political observer in 2018 (when How Democracies Die was published) could have been surprised by the indictment of the pre-Trump GOP, and not simply of the party since Trump’s takeover.

The book, which I read in early 2019, is a warning to small-d democrats. I regarded the warning as less urgent, and the threat as less imminent, on that first reading than I do now. I recognized then that the Republican Party continued to trash democratic norms and that Trump had pushed the GOP even further off the rails, but I believed that our institutions would protect us. We were safe from the worst. We would vote Trump out of office, just as we had rejected the Republican majority in the House in November 2018.

But the Republican Party has become increasingly extreme with each year of the Trump presidency. So, the passages that I regarded as perceptive observations have become alarming portents. As our country loses prestige and influence abroad, and as the chaos at home betrays our image as the world’s greatest democracy, our democratic institutions appear less robust than they did even a short time ago.

Shockingly, today the United States of America doesn’t seem a world away from Venezuela, Turkey, or Hungary (to cite a few of the countries discussed in How Democracies Die where people still cast ballots, but authoritarians rule). The threat of a free and fair election — offering a judgment on Donald Trump’s presidency — being subverted so Trump can stay in office regardless of the will of American voters is right upon us, here and now in 2020.

Recognition of this impending threat has come in stages.

On August 19, election-law expert Richard Hasen wrote about the broad Republican strategy:

The threat to the 2020 election’s legitimacy finally broke through into everyday conversation last week. People who pay little attention to politics started talking about whether President Trump was looking to mess with the United States Postal Service to slow down the receipt of mail-in ballots.

After reports from NPR and the Washington Post (on August 22 and 23, respectively) that upwards of 500,000 mail-in ballots had been disqualified in the Wisconsin primary jolted me, on August 24 I posted, “Democrats desperately need a Plan B.” If a half million votes could be lost in a single primary, maximal Republican interference in multiple states in a general election could be much more consequential. The GOP is preparing to pull out all the stops to prevent votes from being counted (the successful strategy in Florida in 2000), so Trump doesn’t face a reckoning.

By September 10, when Ronald Brownstein wrote the essay, “Democrats Won’t Cede the Streets This Time,” the previously fantastical idea (an authoritarian leader subverting a free and fair election in the U.S.A.) was widely anticipated. Not only did Democrats expect Trump to try to steal the election, they expected Republicans to employ shock troops (as they had in the well-orchestrated Brooks Brothers’ riot of 2000) to intimidate officials responsible for tabulating votes.

Hasen’s assessment now is that the Republican Party’s plan — to muck up the works and then, when bedlam breaks out, disregard the voters and declare Trump the winner — is “a five-alarm fire” that threatens democratic rule:

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.

I initially shrugged off Trump’s attacks on the credibility of the election because he had done the same thing in 2016 — even after winning (when he claimed that 3 to 5 million illegal votes had been cast, unfairly depriving him of a popular vote victory). I regarded the continuing crusade as just blather and bluster. (And it would be were it not for the complicity of the Republican Party and its leadership.)

I shrugged off Trump’s tweets about postponing the November 3 election, which I took as evidence of his insecurity (after consistently trailing Joe Biden in public polling for more than a year) and his ignorance (of the structure of our governing institutions). Moving the date of the election was not a viable possibility — and so not the way to steal an election.

I never regarded as likely the suggestion that Trump would lose the election, but refuse to budge from the White House.  That’s not where the threat lies, as Barton Gellman explains:

A lot of people, including Joe Biden, the Democratic Party nominee, have mis­conceived the nature of the threat. They frame it as a concern, unthinkable for presidents past, that Trump might refuse to vacate the Oval Office if he loses. They generally conclude, as Biden has, that in that event the proper authorities “will escort him from the White House with great dispatch.”

The worst case, however, is not that Trump rejects the election outcome. The worst case is that he uses his power to prevent a decisive outcome against him. If Trump sheds all restraint, and if his Republican allies play the parts he assigns them, he could obstruct the emergence of a legally unambiguous victory for Biden in the Electoral College and then in Congress. He could prevent the formation of consensus about whether there is any outcome at all. He could seize on that un­certainty to hold on to power.

Trump’s state and national legal teams are already laying the groundwork for postelection maneuvers that would circumvent the results of the vote count in battleground states. Ambiguities in the Constitution and logic bombs in the Electoral Count Act make it possible to extend the dispute all the way to Inauguration Day, which would bring the nation to a precipice. The Twentieth Amendment is crystal clear that the president’s term in office “shall end” at noon on January 20, but two men could show up to be sworn in. One of them would arrive with all the tools and power of the presidency already in hand.

The linchpin: “if his Republican allies play the parts he assigns them.” Trump is Trump. He sends signals. It is his Republican allies — in Congress, on Fox News Channel, in a handful of legislatures and statehouses across the country, and at the Supreme Court — that could pull off the heist.

The Republican Party has moved unwaveringly toward a fulsome embrace of Trump’s authoritarian impulses. At every fork in the road — whether to enable Trump’s authoritarian incursions or to take a principled stand to defend democratic institutions — Republicans in the House and the Senate have chosen the former.

Consider 2020; that is, just the past nine months:

Apart from Mitt Romney (who acknowledges that he has no followers in today’s GOP), Republicans in both the House and the Senate were unanimous in refusing to hold Donald Trump accountable for his shakedown of Ukraine’s President Zelensky. This was a choice. The rejection of principle, in favor of raw political power, with the recent Supreme Court vacancy was a choice. The loudest voices among Washington Republicans have reinforced Trump’s campaign to delegitimize the election; other Republicans remain silent (implicitly standing behind Trump). Everyone — the vocal and the mute — has made a choice. Finally, the namby-pamby statements after Trump’s rejection of the principle of a peaceful transition represent a choice. (Not that a more definitive rejection from today’s Republicans, while still weeks away from the election, would count for much.)

The Republican Party has rejected Congressional oversight, Constitutional checks and balances, the rule of law, the sanctity of the vote and of democratic elections, conservative principles and policy commitments, and much else where this president is concerned. The party has collectively made choice after choice to go all-in with Trump wherever he has led.

In my August 24 post, I raised this question:

But — stop and consider for just a moment all that we’ve witnessed over the past three and a half years — are there any grounds to believe that, say, Mitch McConnell would object to a transparent theft of the election if he thought that he could get away with it?

Consider all of Trump’s enablers. Isn’t the same cynical calculation in play for each of them? If Fox News Channel and the rest of the conservative media universe were on board, nearly half the country would be convinced, if Trump claimed a victory, that Trump had won (or that McConnell had held his majority).

I would not have thought to write those paragraphs at the beginning of the year, much less in early 2019, after first reading How Democracies Die. Even understanding that the GOP was an insurgent outlier, which employed voter suppression as a primary electoral strategy, I would have regarded this contingency as a bridge too far. But here we are.

I’ve written more than once about the go-to play in the Republican Party’s game plan, which Steve Bannon described as “to flood the zone with shit.” Republicans in Washington and state capitals, on FNC and talk radio, in social media and on the streets are always prepared to flood the zone with shit. Lies, conspiracy theories, denials, misdirection, and ceaseless vilification: that’s the route to creating chaos. Republicans are amply prepared to follow their authoritarian leader if, when push to comes to shove, they think they can get away with it.

Near the beginning of Donald Trump’s term, Levitsky and Ziblatt wrote:

We know that extremist demagogues emerge from time to time in all societies, even in healthy democracies. The United States has had its share . . . . An essential test for democracies is not whether such figures emerge but whether political leaders, and especially political parties, work to prevent them from gaining power in the first place—by keeping them off mainstream party tickets, refusing to endorse or align with them, and when necessary, making common cause with rivals in support of democratic candidates. Isolating popular extremists requires political courage. But when fear, opportunism, or miscalculation leads established parties to bring extremists into the mainstream, democracy is imperiled.

Once a would-be authoritarian makes it to power, democracies face a second critical test: Will the autocratic leader subvert democratic institutions or be constrained by them? Institutions alone are not enough to rein in elected autocrats. Constitutions must be defended—by political parties and organized citizens, but also by democratic norms. Without robust norms, constitutional checks and balances do not serve as the bulwarks of democracy we imagine them to be. Institutions become political weapons, wielded forcefully by those who control them against those who do not. This is how elected autocrats subvert democracy—packing and “weaponizing” the courts and other neutral agencies, buying off the media and the private sector (or bullying them into silence), and renewing the rules of politics to tilt the playing field against opponents. The tragic paradox of the electoral route to authoritarianism is that democracy’s assassins use the very institutions of democracy—gradually, subtly, and even legally—to kill it.

Thus far, choice by choice, the Republican Party has failed both critical tests.

The authoritarian threat — as the country’s November election approaches — is nearer, more imminent than I had imagined just months ago. Killing democratic rule is not just an exotic foreign affair, it’s something that could happen here. The contemporary Republican Party has a plan for stealing the 2020 American election — if only a viable opportunity presents itself. It is up to democrats (and Democrats) to make sure that tabulated ballots, not chaos and chicanery triumph.

(Image: The Hill.)

2020 General Election, Republicans, Short & Sweet ... Short & Sour

In Wisconsin, North Carolina, Florida: 24 hours of efforts to rig election for Trump and the GOP

No act is too brazen for the Republican majority on the Wisconsin Supreme Court. [Update: In a surprise,“the court’s newest conservative-backed member, Justice Brian Hagedorn,” shunning a party line vote, formed a majority with liberals to rule against mucking up the works.] Things didn’t turn out so well during the primary (apparently many Wisconsin voters resent the imposition of minority rule in the state). We’ll see if the latest attempt to throw a wrench into the works is a winning play by the Republicans.

Meanwhile, a federal appeals court considers whether North Carolina’s recent history of discriminatory voting restrictions, which were found to “target African Americans with almost surgical precision,” should be considered in evaluating whether another law — with the same target — should be invalidated (“Court examines North Carolina’s new law that requires photo IDs for voting”).

While in another appeals court, a 6-4 majority found that Florida’s 21st century version of the poll tax passes constitutional muster (“Florida can bar ex-felons from voting if they owe court payments, appeals court rules”).

2020 General Election, Democracy, Donald Trump

Plan B surfaces in Philadelphia for a free and fair election — and no red mirage — in 2020

Last month, election expert Richard Hasen assured us that “there is still time to keep the presidential election fair.” Of course time is not the limiting factor. Noting Donald Trump’s attacks on the integrity of voting and unsupported GOP claims of voting fraud, including a “particularly ludicrous” scenario that Bill Barr has raised repeatedly, Hasen offers several steps to ensure a free and fair election.

For Congress: offer funding for the states to cover the additional costs of running an election during a raging pandemic. “This should not be a partisan issue,” he writes, though of course it is. Congress could also provide oversight of the Postmaster General to ensure that no measures impair mail delivery prior to the election. But if Mitch McConnell is opposed, Congress will be stymied.

For the states:  implement procedural reforms to ensure a timely and transparent process. Again, a sticking point will be among Republicans in key states in position to block any procedural changes. Nonetheless, Democrats are in charge in some states, while in others, Republican officials are on board with free and fair elections.

For voters: request mail-in ballots soon and vote early.

For the media: educate the public that counting all ballots will take many days, that this is not evidence of fraud, and that no candidate can credibly declare victory before enough votes have been counted to determine a winner.

The media has begun to communicate this message. That’s good news and so are steps that several states have begun to take to streamline the process of voting and tabulating votes.

The bad news is that Congressional funding (and effective oversight of the post office) aren’t on the horizon. And, in some states, there will be few checks on Republicans who are willing to engage in mischief.

In a previous post, I suggested that the fiasco in Florida in 2000 could well be a less ugly version of election larceny headed our way in 2020. Thus, Democrats’ Plan A for voting — encouraging voters to vote by mail — was too vulnerable to the possibility of Republicans stealing another election.

Pennsylvania is a key battleground with a history of voting breakdowns, as Politico reports:

With concerns about an Election Day debacle rising in this critical swing state, Pennsylvania Gov. Tom Wolf privately convened a group of Philadelphia Democrats recently to underscore the consequences of another vote-counting fiasco like the one that took place in the June primary.

The city took more than two weeks to count all of its votes due to a massive surge in mail voting amid the coronavirus pandemic — and a repeat performance might make it unclear who won the presidential election in the key battleground state long past Nov. 3.

The fear: if an Electoral College victory hinges on Pennsylvania, and there are hundreds of thousands of ballots yet to be counted, Donald Trump could cry fraud and claim victory. We’ve seen this coming for months. Trump has sought to delegitimize vote by mail, making it more likely that his supporters will vote in person on election day, while Democrats — taking heed of the raging coronavirus — have urged their voters to cast ballots by mail. This raises the possibility that Trump could be ahead in the count in the early morning hours of November 4, while Biden’s winning votes have yet to be totaled. That’s the red mirage [see definition at Chidi’s Corner], which we could see in a number of states across the country.

Even if Trump is behind, he and Fox News Channel will be free to raise a ruckus if votes are being tallied many days later. And of course even if Biden wins and takes office, the outrage and chaos manufactured by Trump and company could be a Trumpian GOP theme throughout the Democratic president’s tenure in the White House.

Hasen has endorsed legislative changes to streamline voting and counting votes. And called on Congress to help fund such efforts. Republicans, who control the Pennsylvania General Assembly, have resisted Democratic Governor Tom Wolf’s proposals to do so. Nor has Congress acted.

Fortunately, a first step of Plan B — free of Republican obstruction — has surfaced in Philadelphia. The nonprofit Center for Tech and Civic Life has awarded the city a $10 million grant

to help fund upgraded equipment, satellite offices, personal protective equipment and other materials. Wolf has also raised more than $5 million to help municipalities implement mail-in voting and educate voters about their options, said Jeff Sheridan, his political adviser.

City election officials said the additional money puts them in a vastly better position than they were in June. They expect to open at least 800 polling places in Philadelphia in November, compared to fewer than 200 during the primary. Most of the $10 million in nonprofit funding is going toward costly equipment that will enable them to print, sort and scan ballots more quickly, according to the city’s grant agreement.

That’s good news. Here’s hoping funding for free and fair elections surfaces in other states across the country.

(Image from Center for Tech and Civic Life award letter.)

2020 General Election, Democracy, Donald Trump

Why we can’t count on the Voting Rights Act of 1965 to avert an electoral disaster in November 2020

The withdrawal of federal troops from the South in 1877 ushered in the Jim Crow era. Put into place state by state over several decades, Jim Crow imposed legally sanctioned segregation made possible by the disenfranchisement of Black Americans. C. Vann Woodward writes in The Strange Career of Jim Crow:

The effectiveness of disfranchisement is suggested by a comparison of the number of registered Negro voters in Louisiana in 1896, when there were 130,334 and in 1904, when there were 1,342. Between the two dates the literacy, property, and poll-tax qualifications were adopted. In 1896 Negro registrants were in a majority in twenty-six parishes—by 1900 in none.

In spite of the ultimate success of disfranchisement, the movement met with stout resistance and succeeded in some states by narrow margins or the use of fraud. In order to overcome the opposition and divert the suspicions of the poor and illiterate whites that they as well as the Negro were in danger of losing the franchise—a suspicion that often proved justified—the leaders of the movement resorted to an intensive propaganda of white supremacy, Negrophobia, and race chauvinism. Such a campaign preceded and accompanied disfranchisement in each state.

Jim Crow was not merely a Southern institution. It was an integral element in FDR’s Democratic coalition and served as scaffolding for Democratic majorities in Congress well into the 1960s, when Lyndon Johnson made the commitment to enact historical civil rights legislation (knowing full well that the Solid South would shift from Democratic to Republican).

Fifty-five years ago today, President Johnson signed the 1965 Voting Rights Act. John Lewis, whose recent passing has focused attention on voting rights, was present at the signing.

LBJ’s signature brought an abrupt end to a vile era in American history. In the view of the Department of Justice (circa June 2009), the law proved to be extraordinarily effective.

Soon after passage of the Voting Rights Act, federal examiners were conducting voter registration, and black voter registration began a sharp increase. The cumulative effect of the Supreme Court’s decisions, Congress’ enactment of voting rights legislation, and the ongoing efforts of concerned private citizens and the Department of Justice, has been to restore the right to vote guaranteed by the 14th and 15th Amendments. The Voting Rights Act itself has been called the single most effective piece of civil rights legislation ever passed by Congress.

That 2009 assessment (near the beginning of the Obama administration) looks somewhat dated now, in the second decade of the 21st century, as the United States Supreme Court – led by Chief Justice John Roberts, who has made a career out of battling the Voting Rights Act – has persistently chipped away at the right to vote in subsequent years.

In 2013 in Shelby County v. Holder, Roberts, writing for a 5-4 Republican majority of the Supreme Court, struck down the Justice Department’s authority to subject states and local governments with a history of discrimination in voting to “pre-clearance” requirements when changing voting laws and procedures. While the law still stands, the ruling stripped away the most effective means of enforcing it.

In his opinion, Roberts wrote that in the jurisdictions subject to pre-clearance since 1965, Black registration has increased substantially. “Racial disparity in those numbers was compelling evidence justifying the preclearance remedy and the coverage formula. There is no longer such a disparity.”

Ruth Bader Ginsberg, in her dissent, replied: “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”

Richard Hasen notes in Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy:

Justice Ginsburg was right that the law served as a deterrent and that bad behavior would quickly return upon its removal. Within hours of the Shelby County decision, Texas announced it would immediately enforce its law requiring those wanting to vote to provide one of a limited number of types of photographic identification. Student IDs were unacceptable, but concealed handgun permits were allowed.

Other states soon followed with a range of suppression measures targeting Democratic constituencies:

Closing polling places to create voting deserts. By election day in November 2018, the Leadership Conference Education Fund found that 1,688 polling places had been closed.

Cutting back on early voting. Although more than two-thirds of the states permit early voting, a number have implemented cutbacks. Governors, secretaries of state, and state legislatures are generally discreet about announcing their intent, but not always. North Carolina (in a court filing) acknowledged restricting Sunday voting because “[c]ounties with Sunday voting in 2014 were disproportionately black” and “disproportionately Democratic.”

Fewer voting places and fewer days to vote results in longer lines in selected neighborhoods.

Wholesale purges of voting rolls. Between 2016 and 2018 more than 17 million names were removed from voting rolls nationwide. The Supreme Court has ensured that states have wide latitude to conduct such purges – even when there is evidence that lists of voters to be purged are riddled with errors.

Ari Berman comments (“Republicans Are Trying to Kick Thousands of Voters Off the Rolls During a Pandemic”):

There’s nothing inherently wrong with updating registration lists to remove the names of people who have become ineligible to vote. “We want election administrators to have the tools they need to make sure that the records are clean,” says the Brennan Center’s Pérez. But recent examples show that some purges mislabel thousands of eligible voters, disproportionately Democrats and people of color. 

The Chief Justice is often the swing vote on the Roberts Court, forming a majority with liberals on one case, then with conservatives on another. But on issues of voting rights, gerrymandering, and campaign finance – all central to the Republican Party’s electoral strategy as its voting base shrinks – Roberts almost invariably sides with the GOP.

Earlier in 2020, conservative majorities led by the Chief Justice have weighed in numerous times on voting rights:

In April the Court ruled 5-4 in favor of the Republican National Committee in blocking a lower court ruling that gave Wisconsin voters an extra six days to return ballots.

In July the Court reprised the Wisconsin decision with rulings in Alabama and Texas cases. The Alabama ruling carried with the same 5-4 majority, though there were no dissents to the Texas ruling.

Later in July the 5-4 conservative majority sided with Republican officials in Florida in upholding an appellate court ruling that blocked felons from voting if they could not afford to reimburse the state for court costs, just a poll taxes barred voters in the Jim Crow era.

LBJ’s signature on the Voting Rights Act transformed both of the country’s political parties. As white Southerners abandoned it, the Democratic Party became a highly diverse coalition, while the GOP, a half century later, is mostly white and led by a man who sees “very fine people” among white supremacists and neo-Nazis.

On Tuesday, Donald Trump celebrated the vote by mail system in Florida (where Trump casts his mail-in ballots). The day before he blasted vote by mail in Nevada, complaining that it would make it “impossible for Republicans to win the state,” and promising litigation.

We can count on litigation aplenty. President Trump is hellbent on casting doubt on the integrity of the November election. Through tweets, interviews, and musings to the press, he throws up nonsense, conspiracy theories, and whiny accusations — all instances of Steven Bannon’s tactic for muddying the waters (“flooding the zone with shit,” in his words). All of this advances the politics of grievance and provides fodder for (heretofore) spurious legal claims.

It’s possible that the Supreme Court will decide the November election — as the it did in 2000 in Bush v. Gore — but if the decision turns on issues related to the Voting Rights Act, there is little doubt that John Roberts will be among the five conservative Republican men in the majority.

The surest way to prevent that: clear, decisive victories for Joe Biden at the ballot box in enough states to make the outcome indisputable.

(Image of President Johnson, at the signing ceremony of the Voting Rights Act, with Martin Luther King Jr.: LBJ Presidential Library.)

2020 General Election, Democracy, Donald Trump, Off the Rails

Donald Trump speculates: “Delay the Election until people can properly, securely, and safely vote?”

“He gets new information. He likes to talk that through out loud. And really have that dialogue. And so that’s what dialogue he was having.“ — Dr. Deborah Birx on Donald Trump’s suggestion at a public health briefing that injecting bleach could be a cure for COVID-19.

Yesterday:

▪ Donald Trump boohooed that he had lower approval ratings among Americans than Dr. Anthony Fauci:

He’s working with our administration. And for the most part we’ve done pretty much what he and others — Dr. Birx and others, who are terrific — recommended. And he’s got this high approval rating. So, why don’t I have a high approval rating with respect — and the administration — with respect to the virus?

▪ He downplayed the coronavirus and touted hydroxychloroquine as remedy, though the FDA revoked authorization for use of the drug for COVID-19 treatment “reports of serious heart rhythm problems and other safety issues, including blood and lymph system disorders, kidney injuries, and liver problems and failure.”

▪ And the President retweeted a video (since removed by Twitter, Facebook, and YouTube, but not before 14 million viewings) with discredited claims from a Houston doctor/religious minister that she has successfully treated hundreds of coronavirus patients with hydroxychloroquine and that face masks are not necessary to stop the spread of the virus. Stella Immanuel has also claimed that gynecological problems are caused by having sex in ones dreams with demons and witches; that DNA from alien beings is being used in medicine today; and that “reptilions” and other aliens are embedded in our government.

▪ Donald Trump is still a fan: “There was a woman who was spectacular in her statements about it: that she’s had tremendous success with it.”

Just another day in the Trump presidency. So, when he tweets about delaying the election, is Trump simply riffing? Merely talking out loud about something he’s seen online or on cable TV? Is this nothing more than more idle talk from an uninformed, credulous individual?

Neither the Constitution, nor federal law grant this man, even though he sits in the Oval Office, the authority to change the date of the 2020 election. But it is well within his power to signal his view that something isn’t on the up and up. Something about the November 3 election is rotten. The Democrats are trying to cheat.

The President of the United States has sought for many months to delegitimize the 2020 election, much as he did in the run-up to the 2016 election, before winning it — and even afterwards.

Donald Trump has presided over a disastrous 2020. His failures — resulting in an unfolding tragedy that grows greater by the day — are unmistakable. Surveys of public opinion suggest a steeply uphill climb to reelection for the President.

As the prospect of losing has become more likely, Trump has waged a campaign against mail-in voting, insisting that “it doesn’t work out well for Republicans,” and even more dire that it will “lead to the end of our great Republican Party.”

He has continued to strike this theme throughout the year:

He has endorsed the unsubstantiated claim of Bill Barr that foreign governments might corrupt the election by printing and mailing counterfeit ballots

Election officials have discounted the President’s claims (“Trump claims without evidence that mail voting leads to cheating: A guide to facts on absentee ballots.”):

“We are not aware of any evidence supporting the claims made by President Trump,” the National Assn. of Secretaries of State said in a statement. “As always, we are open to learning more about the Administration’s concerns.”

So what’s Trump up to? Well, he’s revving up his base. For another thing, if Republican state legislatures and secretaries of state follow his lead, they will curtail, or refuse to expand, vote by mail options. That serves the venerable Republican strategy of voter suppression. Georgia Governor Brian Kemp and former Kansas Secretary of State Kris Kobach are past all-stars in this game.

Even if vote by mail options exist, Trump’s campaign may serve to suppress the Democratic vote. An NBC report (“A Trump trap? He’s the one who could get a boost from mail voting glitches”) explains why:

The real danger is a perfect catastrophe of administrative overload, postal delays and voter error that could lead to millions of absentee ballots not counting. And this year, unlike the past, those ballots are likely to be overwhelmingly Democratic.

Mail-in ballots are much more likely to be rejected than ballots cast in person. If Trump’s base votes in person on election day, those votes are more likely to be counted than Democratic votes cast by mail-in ballots. Some estimates suggest that up to 4-percent of mail ballots were rejected in 2016 with no opportunity to remedy any problems (as one might do at a polling place). Furthermore, studies suggest that younger voters and people of color — predominantly Democratic — are more likely to have their ballots disqualified.

If a higher proportion of Democrats than Republicans vote by mail, Democrats will be disadvantaged because of procedural glitches that are apt to multiply this year as the number of mail-in ballots increase — overwhelming some jurisdictions. Add to this a multi-million dollar GOP donor just appointed as Postmaster General, who is imposing changes on the Postal Service that have created backlogs and late deliveries. As a result, there will likely be delays in sending ballots to voters and in receiving voters’ completed ballots in a timely way that ensures that votes are cast and counted.

But there’s more to it than that. Republicans probably can’t suppress enough votes to win in 2020. These tactics, even with an assist from the U.S. Supreme Court, failed in Wisconsin. These cries of fraud and rigged elections serve another purpose, as Richard Hasen has explained:

If most Republicans vote in person and most Democrats vote by mail, Hasen said, that could create a scenario well suited to Trump’s tendency to make unfounded accusations of wrongdoing.  

“As Trump drives more and more of his supporters to vote in person and away from vote-by-mail, it’s quite likely that we’ll see Trump getting many more votes on election night, the votes that are counted on Election Day,” Hasen said in an interview on “The Long Game,” a Yahoo News podcast.

“Then, four or five days later, [if] Biden becomes the winner as the absentee ballots are counted in Philadelphia or Detroit, that’s a recipe, if it’s close, for a really ugly election scenario,” he said.

Election results for Philadelphia’s June 2 primary were not certified for nearly three weeks. The outcome of the June 23 primary in New York’s 6th CD, a victory by challenger Jamaal Bowman over Congressman Eliot Engel, was not clear for more than four weeks. It takes a long time to verify and count ballots received by mail. There will be tens of millions more votes cast in November than have been cast in primaries earlier this year.

The Brooks Brothers riot — in 2000 when Republican operatives from across the country created a mob scene in Miami-Dade County to stop officials from counting votes (after George W. Bush had established a small lead in the state) — is the template for creating chaos in November 2020 in any state where Trump has a slim lead and there are still thousands of ballots to be counted. Only this time the rioters (most of whom were not actually dressed in expensive suits) might be replaced by armed militias in camo. And multiply the rioting across a number of states.

Even if Trump trails in same day voting, if there are tens of thousands of uncounted votes in key states, he could still cry fraud.

Trump’s eruptions about voting by mail all serve as a setup for challenging his defeat in November. Whatever happens on November 3 and after, things have already become ugly.

This scenario is beyond abnormal. But rest assured this will not be Trump’s last off the rails maneuver between now and November 3.

There are 97 days to go.

(Image: from Five Thirty Eight’s average presidential approval July 30.

2020 General Election, Democracy, Republicans

GOP will gladly accept an extended contested election — if they think it may help them win it

“No one wants the uncertainty of an extended contested election with complaints like those we heard about the recent Wisconsin primary or the Iowa caucuses in February.”

No one? Suppose Mitch McConnell were offered a choice: a free and fair election (that Democrats likely win) or a contentious argument with weeks or months of turmoil about a result that is finally decided (perhaps by the United States Supreme Court) in Republicans’ favor. Does anyone doubt the choice he makes?

How about Kevin McCarthy? Or Bill Barr? Brian Kemp, Robin Vos, Kris Kobach? What would be the preference of John Roberts, whose career in restricting voting rights stretches back to 1982?

The consensus among Republicans in Washington, and in state houses across the country, would be to make the choice that Mitch McConnell would make. The GOP is committed to winning any way it can. Free and fair be damned.

That stark fact – that Republicans don’t hesitate to cheat to win elections – is why the report (“Fair Elections During a Crisis: Urgent Recommendations in Law, Media, Politics, and Tech to Advance the Legitimacy of, and the Public’s Confidence in, the November 2020 U.S. Elections”) by an ad hoc committee put together by Richard Hasen is going to win favor with good government groups and with Democratic leaders, but not with the leadership of the Republican Party.

Jonathan Bernstein’s commentary (“How to Hold a Fair Election in November”) – in which the quoted sentence appears – provides context, describes the report’s overall strategy (ensuring “a diversity of avenues for voting”), and recommends both the report and Hasen’s recent book (Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy).

I’m on board with the thrust of Bernstein’s post. Richard Hasen has been sounding the alarm regarding the threats to free and fair elections for many years. Voting is under attack and Hasen is well-qualified to offer viable reforms to ensure the integrity of the process and to boost Americans’ faith in elections. The coronavirus pandemic, exacerbated by Donald Trump’s abdication of responsibility, is yet another threat.

However, although the sentiment expressed in the quotation above is virtually de rigueur for an op-ed advocating democratic reform, we can’t count on it. Republicans are convinced – and have been for decades – that restricting voting turnout is good for them. In 1980 Paul Weyrich, during the fall campaign for Ronald Reagan, mocked “the goo-goo syndrome – good government,” arguing that “our leverage in the elections quite candidly goes up, as the voting populace goes down.” From the Brooks Brothers riot to Wisconsin’s recent election, we see that this is an enduring calculation.

And that’s not all: Republicans benefit when Americans are bitterly divided and when government is discredited. An extended contested election – win or lose – redounds to the advantage of Republicans.

[Photo of poster by Robbie Conal.]

The Way the World Goes 'Round

That’s the way the world goes ’round: news, context, and comments on the past week

1.

2. Wisconsin Republicans refused to let a deadly pandemic (with the greatest impact in Democratic strongholds in Milwaukee) get in the way of guaranteeing a low-turnout election for a state supreme court seat. Speaker of the Assembly Robin Vos, outfitted in head to toe PPE, assures the public that everything is fine.

3. Charles Sykes – who for twenty five years was immersed in the “conservative movement, both as an observer and as a full participant” and knows all the Republican players, including Robin Vos – explains the election’s significance and the context in Wisconsin politics. (I recommend Sykes’ book, How the Right Lost Its Mind, which presents an insiders’ account of how conservative media “succeeded in convincing our audiences to ignore and discount any information whatsoever from the mainstream media. The cumulative effect of the attacks was to delegitimize those outlets and essentially destroy much of the Right’s immunity to false information.”)

4. Richard Hasen (“How Republicans are using the pandemic to suppress the vote“) suggests that Republicans may be willing to go to far greater lengths than they did in Wisconsin to rig the November election. He foresees two possibilities. The first (a 180-degree pivot from Wisconsin Republicans), is to emphasize the grave risks to public health and simply close polling places in Democratic cities and swing states. (Shutting down polling places – creating voting deserts, in effect – in Democratic areas of a state is a tried and true method of voter suppression.) The second method is more novel: a direct assault on the right of citizens to cast votes.

More ominously, as Mark Joseph Stern has pointed out, state legislatures have the power under the Constitution to choose presidential electors. In its infamous 2000 decision in Bush vs. Gore, the U.S. Supreme Court remarked that although every state legislature had given voters the power to vote directly for the president and to allocate the state’s electoral college votes, state legislators could take back that power at any time.

What’s to stop Trump from appealing to Republican-controlled legislatures in the swing states of Arizona, Michigan, North Carolina, Pennsylvania and Wisconsin to take back this power from voters under the pretext that the risk of COVID-19 makes voting too difficult? Although all these states, except Arizona, have Democratic governors, some believe that the legislatures could take back this power even without the agreement of the governor. [My emphasis.]

5. The United States now leads the world in coronavirus deaths. The lack of national leadership that brought this about is disgraceful.

6. Today’s New York Times offers the most recent review of Donald Trump’s ongoing failures to protect the American public (“He Could Have Seen What Was Coming: Behind Trump’s Failure on the Virus”).

By the last week of February, it was clear to the administration’s public health team that schools and businesses in hot spots would have to close. But in the turbulence of the Trump White House, it took three more weeks to persuade the president that failure to act quickly to control the spread of the virus would have dire consequences.

7. Last month Trump declared, “We’re not a shipping clerk,” but the continuing refusal of the federal government to take command is costing lives. Instead, his administration has relied on five large medical supply companies to step into the breach. These companies are distributing personal protective equipment — but their regular customers are getting first dibs on all PPE, regardless of need. Governors with coronavirus hotspots have to stand in line while scrambling to find their own sources for gear.

Admiral John Polowczyk, who leads FEMA’s Procurement Task Force, explains: “I’m not here to disrupt a supply chain, say, look, they have trucks to go to the hospital door every day. We’re bringing product in. They’re filling orders for hospitals, nursing homes like normal.”

But things are hardly normal. As a result, according to governors with hospitals that lack PPE, “this has led to confusion and chaotic bidding wars. Until the bottleneck is sorted out, it will be market forces and corporations that often decide who gets scarce supplies and who doesn’t.”

(Image: courtesy of NASA.)