Amidst mounting fears of a post-election constitutional
crisis, President Trump set off a new round of alarm bells last week [Aug. 20]
by telling his Fox News enabler Sean Hannity that he plans to dispatch police to
polling places on Nov. 3 to combat potential voter fraud.
Trump
called in to Hannity’s 9 PM program, seemingly prepared for Hannity’s opening
question. “Are you going to have poll watchers?” Hannity asked, pointing to a
dubious study of election fraud cases by the conservative Heritage Foundation.
“Are you going to have an ability to monitor — to avoid fraud, and cross
check whether or not these are registered voters, whether or not there’s bad
identification, to know that it’s a real vote from a real American?”
“We’re
gonna have everything,” Trump replied enthusiastically, according to excerpts
quoted in coverage by New York magazine. “We’re gonna have sheriffs, and
we’re gonna have law enforcement, and we’re going to have, hopefully, U.S.
attorneys and we’re going to have everybody— and attorney generals.”
It cannot
be repeated often enough that Trump and his supporters have produced no
evidence of widespread illegal voting in the three-and-a-half years since he
blamed his popular vote loss in 2016 on illegal voting. Trump even appointed a
commission to study the issue, but the commission storydisbanded without producing
any evidence.
Against
that background, Trump’s purpose must be seen as attempting to discourage minority
voters, a tactic that Republicans deployed in New Jersey so ostentatiously that
a federal court prohibited the practice in a now-lapsed decree issued in 1982.
A leading civil rights group was quick to condemn Trump’s plan as amounting to
an illegal attempt to intimidate voters.
Kristen
Clarke, president and executive director of the Lawyers’ Committee for Civil
Rights Under the Law, called Trump’s plan “an old and
familiar tactic pulled right from the Jim Crow playbook.” She noted that the
federal Voting Rights Act, in section 2(b), specifically prohibits conduct
intimidation of voters: “No person [... ]
shall intimidate, threaten, or coerce, or attempt to intimidate, threaten, or
coerce any person for voting or attempting to vote.”
Hannity,
who traffics in opinions instead of facts, put no questions to Trump about his
authority to dispatch local law enforcement officers to voting places nor any
questions about possible intimidation of minority voters. But he did preface
his question by saying that he had the Heritage Foundation study right in front
of him.
The study, according to an analysis
by the Washington Post’s Philip Bump, falls far short of
showing extensive illegal voting in the United States, with only 1,200
instances of “election fraud” dating from 1982. The list, according to Bump,
includes “a wide range of offenses, from voting illegally to giving homeless
people cigarettes to sign voter applications.” Even if all those instances had
occurred in a single state in a single year, Bump concludes, “it would not have
been enough to swing the result in the presidential contest.”
Republicans have been using
so-called “ballot security” programs to discourage minority voters as far back
as 1962. William Rehnquist, the future chief justice, got his start in Arizona
politics in 1962 as a poll watcher for the state’s Republican Party. Four
Arizonans testified in his confirmation hearing in 1962 that they saw Rehnquist
challenge would-be minority voters at the polls. Rehnquist denied the
accusations.
The evidence of voter intimidation
in the New Jersey case was stark, according to the federal appeals court’s
opinion in 2012 upholding the district court judge’s order prohibiting the
Republican National Committee (RNC) from engaging in such practices nationwide.
“The RNC also allegedly enlisted the help of off-duty sheriffs and police
officers to intimidate voters by standing at polling places in minority
precincts during voting with “National Ballot Security Task Force” armbands,”
the court stated in its opinion issued on March 8, 2012. “Some of the officers
allegedly wore firearms in a visible manner.”
A successor federal judge in the case, ruling
on the RNC’s motion to vacate the decree, lifted the decree on January 9, 2018,
by finding that the DNC had failed to show any violations in the intervening
years. With Trump in office, the White House had no immediate comment at the
time on whether the president would encourage the RNC to reinstitute ballot
security practices in the next election.
The RNC appeared to distance itself
somewhat from Trump’s current comments about enlisting local law enforcement to
police polling places. Mike Reed, an RNC spokesman, told the Washington Post
that law enforcement officers are not part of its new poll-watching program.
“Our program consists of volunteers and attorneys,” Reed said.
Even before Trump’s latest
comments, election law experts in both parties were bracing for what the New
York Times described in a headline [Aug. 9] as “a long legal fight to
follow the vote on Election Day.” The Times’s story noted the
president’s limited authority in regard to state and local election procedures,
but described Democratic officials as concerned that Trump’s views could prod
sympathetic state and local officials to block votes and cast doubt on results
going against the president.
The Times story suggested
that the post-Nov. 3 legal fight could make the Bush v. Gore case after
the 2000 election look like nothing more than a student council election.
Backed by local law enforcement and perhaps the Justice Department itself,
Trump will have the resources to fight not only in Florida but in any number of
states. The resulting rancor and uncertainty may well produce the
constitutional crisis that so many political experts are fearing.
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