Every four years, we hear that familiar and expected recitation, “This is the most important election of a lifetime.” This time around, that may or may not be the case, but it will, without question, be the most unique. Conflicting statements are being issued from the White House and its surrogates (will we even have an election?) and officials of various stripes are battling out the particulars from courthouses to statehouses across the country. More Americans are set to vote by mail than ever before, and the usual suspects are hard at work behind the scenes as we go about our daily lives, dutifully wearing our masks, washing our hands, and trying to keep up up with the latest news. Some of these officials want to make sure you get to vote in November, while others are working overtime to make sure you never get the chance.
One of the staunchest early critics of any and all attempts at states’ efforts to expand vote by mail initiatives in response to the Coronavirus pandemic has been president Donald Trump. With his typical Twitter candor, he proclaimed that voting by mail, “doesn’t work well for Republicans,” and he further encouraged his supporters to, “fight very hard” against what he has described, without evidence, as a “horrible” and “corrupt” practice. Perhaps, though, his most desperate and dire warning of all, came with the promise that with the adoption of universal vote by mail, “You’d never have another Republican elected in this country again.” Though the President has asserted that “mail ballots are a very dangerous thing for this country, because they’re cheaters,” there is no evidence to support that mail balloting is more susceptible to fraudulent activity. In fact, the President himself votes by mail from his home state of Florida.
“There are some among us who would if they could, nullify those aspirational ideas to return to the not so halcyon and not so thrilling days of yesteryear of the Divine Right of Kings, trading our birthright as a sovereign people for a modern mess of governing pottage in the hands of a few and forfeiting the vision of America as a shining city upon a hill.”
U.S. District Judge Fred Biery
Battles in the States
Even before the threat of the Covid-19 pandemic, voting by mail had become an increasingly popular choice among voters. Four states: Washington, Oregon, Hawaii, and Colorado relied completely on mail balloting, issuing a ballot to each registered voter for each election, and in 2016, nearly a quarter of all Americans voted by mail. This November, Utah will join the ranks as the first red state to rely entirely on mail balloting. California has previously issued mail ballots for certain counties, but has not yet deployed a system statewide.
Perhaps unsurprisingly, now that Governor Gavin Newsom has expressed intentions to do just that, the Republican National Committee has cried foul, calling the move a “power grab,” and has filed suit to stop the peoples’ ability to vote safely and securely from their homes. In other states, especially Texas and Michigan, (but in the president’s tweets, pretty much everywhere) mail balloting has become a contentious battle of the parties. The will of the people to exercise that most basic right to shape their own vision of America at the ballot box is being challenged by the Republican Party.
“I’m not going to say which party does it, but thousands of votes are gathered, and they come in and they’re dumped in a location, and then all of a sudden you lose an election you think you’re going to win.”
President Donald Trump
There has not only been confusion over voting safely by mail during the pandemic, but so too has numerous irresponsible statements been issued about the country’s ability to hold the November general election. The president’s son-in-law and White House advisor, Jared Kushner, said on May 12th, that it was “too far in the future to tell” if the Covid-19 pandemic could lead to a delay in the November 3rd election.
“It’s not my decision to make, so I’m not sure I can commit one way or the other,” he said in an interview with Time Magazine. It is Congress, not the White House, who maintains legal authority over federal elections, just as states maintain legal authority over their own elections, a fact which may have been unfamiliar to Mr. Kushner at the time. As Samuel Bagenstos, a professor of constitutional law at the University of Michigan Law School explains, “The federal government can impose conditions over states who receive federal funds, but it’s Congress who does that.” Federal funds could prove to be an obstacle too, as $4.6 billion was requested to help states retool for the upcoming general election, but only $400 million was ultimately granted.
A Michigan Tweet Storm
As Michigan set about sending ballot applications to registered voters, the president stormed to Twitter to falsely claim that Michigan was sending 7.7 million ballots to voters. As he angrily threatened to “hold up funding to Michigan if they want to go down this voter fraud path,” he neglected to mention the same process was taking place in Georgia, Iowa, Nebraska, and West Virginia. He also took aim at Nevada, for its “voter fraud,” and threatened to hold up unspecified funds to the state.
Michigan, Pennsylvania, and Virginia will be among dozens of states that will allow voters to vote by mail without cause, and Georgia has sent primary ballot applications to every active voter, amounting to the largest expansion of mail balloting in the state’s history. While voter fraud is a common refrain, the president might now find himself on the end of a losing battle. In Georgia, ballot applications were sent over the objections of the Speaker of the House, David Ralston; Republican Secretaries of State, like Mac Warner, in West Virginia, are carrying out the duties of mail balloting despite ominous warnings – ranging from voter fraud to postal incompetence – from prominent conservative think tanks such as PILF and the Heritage Foundation.
Texas
Each day, Texas writes a new chapter in the vote by mail saga. What began as a judicial matter in a Travis County District Court led to an injunction, eloquently crafted by Judge Fred Biery. declaring that all voters, regardless of age, were entitled to vote by mail in during the Covid-19 pandemic. To force the millions of voters under the age of 65 who are not currently covered by the state’s limited absentee requirements to do otherwise would cause “irreparable harm,” he ruled, and it further called into question the definition of a disability as defined in the state’s election code, where it’s vaguely described as “a sickness or physical condition that prevents the voter from appearing at a polling location without injuring the voter’s health.”
The cause of voting by mail was again put on hold the following day as the state continued to pursue its case to stem the mail balloting tide. Judge Biery opined that the right to vote, “should not be exclusively based on the whims of nature.” And that “Two hundred forty-years on, Americans now seek life without fear of pandemic, liberty to choose their leaders in an environment free of disease and the pursuit of happiness without restrictions.” And two hundred forty-years on, these liberties we seek are being battled out, for good or ill, on Twitter, in courtrooms, and in statehouses across the nation.
