Sunday, August 23, 2020

Alarm Over Trump's Plan to Police Polling Places

           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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