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.

Trump Defying Court on DACA, Title VII Rulings

           Presiding over the most lawless presidency in U.S. history, Donald Trump has been giving the finger over the past few weeks not only to Congress, but also to the Supreme Court. Trump’s defiance of Congress comes in the form of an attempt to use executive orders to enact tax policy, a power that the Constitution very explicitly gives to Congress and specifically to the popularly elected House of Representatives.

Trump’s defiance of the Supreme Court comes in the form of refusing after two months to comply with two of the Court’s high-profile rulings that went against the administration’s legal positions. The administration has done nothing as of yet to notify employers of the Supreme Court’s 6-3 decision in Bostock v. Clayton County [June 15] that the federal job discrimination law known as Title VII prohibits discrimination against LGBT employees.

The administration has engaged in more open defiance of its other high-profile defeat from mid-June: the Court’s 5-4 decision in DHS v. Regents [June 18] rejecting the administration’s protracted effort to rescind the policy known as DACA that protects young immigrants brought to the United States as children. Rather than doing nothing, the Department of Homeland Security has actively obstructed the Court’s ruling by refusing to accept new applicants for DACA status and by limiting renewals for DACA recipients from two years to one year.

The administration may get points from Trump’s political base for stiff-arming the

Supreme Court, but the policies are out of step with the American public. A poll conducted as recently as June found that 74 percent of Americans favor giving legal status to the so-called “Dreamers,” who have lived in the United States since childhood and know no other country than the United States. A Gallup poll conducted in June 2019 found that 53 percent of respondents favored new laws to protect LGBT employees from discrimination in the workplace.

            Both of these decisions came as surprises to many Court watchers and, it would seem, to the administration as well. Solicitor General Noel Francisco had personally argued for the administration in both cases and, with two Trump appointees now on the Court, probably expected to win both. Instead, Chief Justice John Roberts joined liberal justices to help form a majority in both cases. Roberts wrote the DACA decision himself and assigned the Title VII case to the first of Trump’s appointees, Justice Neil Gorsuch.

            Trump reacted nonchalantly to the Title VII ruling on the day of the decision. “I’ve read the decision, and some people were surprised,” he told reporters when questioned, “but they’ve ruled and we live with their decision.” Three days later, however, Trump reacted more assertively against the Court’s ruling on DACA. “Now we have to start the process all over again,” he said.

            Officials at the Department of Homeland Security went further by declaring that the Court’s decision to block the department from rescinding DACA “has no basis in law.” The federal judge who ruled against DHS in one of the DACA cases took Attorney General William Barr for the department’s comment. “The attorney general should advise his client Mr. Wolf that it is not a benefit to anyone to have a federal agency take issue with a decision of the Supreme Court,” Judge Nicholas Garaufis said.

            In his opinion, Roberts found called the department’s move “arbitrary and capricious” in administrative law parlance because it was based solely on the never-adjudicated view that the Obama era policy was illegal from the outset. After the decision, the department’s memorandum announcing the new restrictions repeated the same doubts about DACA’s legality that the that the Court had found inadequate.

            The Trump Labor Department has been less open about defying the Supreme Court on the Title VII case. The Labor Department routinely advises other executive branch agencies about changes in the law and also enforces the requirement that employers post notices about Title VII’s provision at workplaces.

With no action from the Labor Department as of mid-July, fourteen legal advocacy groups joined in a letter dated July 16 addressed to Barr that said it was “imperative” for DOJ to “ensure that enforcement of this decision, as to the definition of sex discrimination through federal civil rights laws and regulations, is uniform across the federal government.” One week earlier, 100 Democratic members of the House or Senate joined in a letter calling on Trump to direct federal agencies to “review of all regulations, executive orders and agency policies that implicate legal protections for LGBTQ individuals under federal civil rights laws.” The letter cited 32 policies for the administration to rescind.

The online gay news site Gay City News tried in early August to find out what if anything was being done about the Court’s decision at any of the Cabinet-level agencies involved: Education, Justice, or Labor, and got no substantive response. Justice and Labor similarly gave no substantive response when queried by the national newspaper USA Today.

To its credit, the semi-independent Equal Employment Opportunity Commission (EEOC) did post a straightforward, informative notice about the decision on its website on June 30 under the heading, “What You Should Know: The EEOC and Protections for LGBT Workers.” The notice included instructions for private company employees and federal agency employees on how to file a complaint with the EEOC “if you think you have been discriminated against.” Compared to that simple step, the silence from Trump’s Cabinet-level departments is truly deafening.

For Justices, the Pandemic Is What It Is

          The White House and Congress combined last week to do little or nothing about the coronavirus pandemic. For its part, however, the Supreme Court stirred into action not to try to control the virus but to prevent a lower federal court from trying to combat it.

The Court’s worse-than-nothing action came in an interim order that blocked a federal judge’s injunction ordering the Orange County, California, sheriff to adopt stricter public-health protocols to limit coronavirus infection in the county’s jail. The order in <I>Barnes v. Ahlman</I>  to stay the district court’s May 27 injunction came on a 5-4 vote that pitted the five Republican-appointed conservatives against the four Democratic-appointed liberals.

The justices have been divided along partisan lines in dealing with the pandemic ever since the Court’s shameful decision on April 6 that overrode a judge’s decision to give Wisconsin voters more time to vote by absentee rather than risk their health by voting in person. The judge’s order in the Wisconsin case came only five days before the state’s April 7 election and thus went against the Supreme Court’s general rule against court-ordered changes in procedures shortly before an election.

The judge’s order in the Orange County jail case also went against the justices’ doubts about judicial micromanagement of conditions in prisons and jails. In issuing the injunction, however, Judge Jesus Bernal noted that the jail, with 3,000 detainees, had recorded 300 cases of coronavirus infection in the week before his order. Bernal credited testimony from inmates that the jail flouted social distancing guidelines by cramming inmates into buses for transport back and forth from the jail and allowing inmates to socialize in crowded dayrooms.

Bernal, appointed to the bench in 2012 by President Obama, is not the first district court judge to be wrist-slapped for trying to protect prisoners from the risk of COVID-19. A federal judge in Ohio issued orders on April 22 and May 19 that officials at the low-security federal prison in Elkton, Ohio, consider releasing medically vulnerable inmates or transferring them to another prison or home confinement.

Judge James Gwin, a Clinton appointee in his twenty-third year on the federal bench, acted after the Elkton Federal Correctional Facility recorded nine COVID-19 deaths in a short period of time. Lawyers from the American Civil Liberties Union told Gwin that one-fifth of the inmates at the facility had tested positive for the virus and that social distancing was “literally impossible” at the prison.

            In an initial action, the Court on May 26 rejected the government’s request to block Gwin’s order, but three conservative justices—Thomas, Alito, and Gorsuch—said they would have granted a stay. The government returned with a new application, docketed on June 1 as <I>Williams, Warden v. Wilson<I>. Acting on the application as supervising justice for the Sixth Circuit, Sotomayor stayed Gwin’s order on June 4 without referring the application to the full Court. Sotomayor gave no reason for granting the stay. None of the other justices commented by opinion pro or con.

            Two months later, Sotomayor issued a blistering dissent, joined by Ginsburg, in the Orange County jail case. The evidence, Sotomayor said, showed that the jail had been “deliberately indifferent to the serious risk COVID–19 posed to the health of its inmates.” In the face of that evidence, Sotomayor complained, the justices’ decision to stay Bernal’s order left the jail “to its own devices.”

            The justices had been similarly unmoved by the risks of coronavirus infection to Wisconsin voters in April. In that case, Judge William Conley expanded the deadline for mailing absentee ballots because of the crush of absentee ballot requests. The four liberal justices dissented from the decision in <I>Republican National Committee v. Democratic National Committee</I> to stay Conley’s order. In a sharply written dissent, Ginsburg argued that the decision would result in “massive disenfranchisement” of voters unwilling to put their health at risk by in-person voting.

The Court has shown no more concern for voters in subsequent cases. The Court on June 26 rebuffed a request by Texas Democrats to reinstate a federal judge’s order to allow expanded mail-in voting in the November election. Judge Fred Biery had ruled that the state was discriminating against younger voters by allowing no-excuse absentee voting by seniors but not by younger voters. The Court declined in <I>Texas Democratic Party v. Abbott</I> to lift the Fifth Circuit’s stay of Biery’s order, but Sotomayor issued a short statement urging the appeals court to rule on the “weighty” question well before the November election.

A week later, the Court on July 2 stayed a lower court’s order easing Alabama’s burdensome rules for voters to request absentee ballots. The four liberal justices dissented in <I>Merrill v. People First of Alabama</I>. Four weeks later, the Court on July 30 intervened on Idaho’s behalf in <I>Little v. Reclaim Idaho</I> to stay a judge’s decision to give the citizens’ group Reclaim Idaho more time to gather signatures to qualify an education funding initiative for the November ballot. The group had argued that social distancing guidelines were slowing the signature gathering process.

President Trump has been rightly lampooned since his comment to Axios reporter Jonathan Swan fatalistically accepting the deaths from the pandemic. “It is what it is,” Trump said, as though he is not the leader of the world’s most powerful nation. The Supreme Court itself is the most powerful court in the world, but the justices have shown no more inclination than Trump to deal with the virus with determination and resolve.

As Defeat Looms, Trump Sows Doubts About Election

As the presumptive Democratic nominee for president, former vice president Joe Biden tweeted a warning on April 24 that he expected that Trump “is going to try to kick the election [and] come up with some rationale why it can’t be held.” The Trump campaign responded by accusing Biden of engaging in “incoherent conspiracy theory ramblings” and describing Trump’s poll-leading opponent as “out of touch with reality.”

Trump himself confirmed Biden’s warning in a tweet of his own last week [July 30] that repeated the president’s unsubstantiated warnings about mail-in voting and suggested delaying the Nov. 3 election. “With universal mail-in voting (not absentee voting, which is good), 2020 will be the most INACCURATE, FRAUDULENT election in history. It will be a great embarrassment to the USA. Delay the Election until people can properly, securely and safely vote???”

Constitutional law scholars were quick to point out that Trump, as president, has no authority whatsoever to delay the election: the date is set by Congress, as the first Tuesday after the first Monday in November. Historians were equally quick to point out that the United States held the presidential election in 1864 as scheduled, with the nation engaged in civil war.

On Capitol Hill, Republican members of Congress for once found that Trump had gone too far. Trump’s enabler-in-chief, Senate Majority Leader Mitch McConnell, used an interview with a home-state television station to bat away any possibility of an off-schedule election. “Never in the history of the country, through wars and depressions and the Civil War, have we ever not had a federally scheduled election on time, and we'll find a way to do that again this November 3, ” McConnell told the interviewer from Louisville’s WNKY.

Steven Calabresi, a law professor at Northwestern University and a co-founder of the Trump-loving Federalist Society, went so far in an op-ed  for the New York Times as to label Trump’s suggestion “fascistic” and grounds for impeachment. Calabresi, who defended Trump during the impeachment, called for Trump to relent from the suggestion or resign.  

Several other Republicans followed McConnell’s example by similarly rejecting any likelihood of a delayed election, including the House GOP leader Kevin McCarthy. Those assurances are, to be sure, welcome, but they are not enough. Trump’s strategy is to sow doubts about an election that he is now on a path to losing, badly. Recall that even after winning the presidency by an Electoral College majority, Trump claimed, without any evidence, to have lost the popular vote to Hillary Clinton only because of illegal voting by illegal aliens.

Right now, Republicans need to be contradicting and correcting Trump’s lies about what are actually the minuscule risks of fraud in mail-in voting: only 143 prosecutions for mail-ballot fraud out of more than 250 million ballots cast in mail-in voting over the past 20 years, according to an article by Igor Derysh in Salon. With no evidence, Attorney General William Barr told the House Judiciary Committee that there was “a high risk” of fraud in mail-in voting in this year’s election, but he refused to endorse Trump’s suggestion that the election will be rigged. “I have no reason to believe it will be,” Barr said in reply to a Democratic lawmaker’s query.

It is a commonplace observation among democracy advocates that the critical test for an emerging democracy comes not in the first election, but in the next — when the in-power party faces the reality of yielding power to the opposition. On that issue, the United States has a fairly good record but with a few blemishes. John Adams used the Alien and Sedition Acts to put some of his opponents in jail after winning the presidency in 1796. The New York Times’s Peter Baker noted, in a news analysis, some examples of sore losers in U.S. history: Andrew Jackson accused John Quincy Adams of gaining the presidency in 1824 on the strength of a corrupt bargain with the third-place candidate Henry Clay; Democrats mocked Rutherford Hayes as “His Fraudulency” after the Republican emerged as the winner after the disputed 1876 election.

To opposite effect, however, Al Gore, as the popular vote winner in 2000, stoically accepted the Supreme Court decision that cut off the recount in Florida. “While I strongly disagree with the decision,” Gore said in a televised address the next night, “I accept it.”

Whatever grousing there may have been about elections in U.S. history, never until now has a sitting president or a former president used the prestige of the office to fuel doubts about results after or much less before they are known. “I have never seen such an effort to sow distrust in our elections,” Michael J. Abramowitz, the president of Freedom House, a nonpartisan organization that promotes democracy around the world, told the Times’s Baker. “We are used to seeing this kind of behavior from authoritarians around the globe,” Abramowitz added, “but it is particularly disturbing coming from the president of the United States.”

Trump’s advisers have their work cut out for them in trying to convince Trump of the reality of what seems now as his likely defeat on Election Day. For the country’s sake, perhaps they can persuade him to leave quietly after the results are counted, but  that may be too much to hope for.