Election Turmoil

I have been voting since 1960. I have voted in North Carolina. I have voted in South Carolina, and I have voted absentee while in the military, first in Alabama and then in Vietnam.

I have voted for Democrats. I have voted for Republicans, and I have vote for candidates who belonged to neither of the two major parties.

I have been a poll worker. I have been a poll watcher. I was the voting officer for my Army unit, and I have been an unsuccessful candidate.

In all those years, in casting all those votes, and in participating in the electoral process in various ways, I have always felt that my vote was secure. My candidate did not win in every case, but I never doubted that my vote had been counted.

In 2020, that sense of security has been undermined.

Now I am not so naïve as to believe that every voters in the Carolinas in the 1960s felt the same as I did at the time. African Americans were still subject to all sorts of voter suppression tactics.

The country began to address that problem in 1965 with passage of the Voting Rights Act. It required preclearance by the US Department of Justice of any regulation, policy or law which might impact access to the ballot in states with a long history of discrimination against minorities. According to the Brennan Center for Justice, in the twenty years following passage of the act the disparity in registration rates between white and black voters dropped from nearly 30 percent to only eight.

Despite the obvious evidence of the act’s success in combating discrimination, in 2013 the conservative majority on the US Supreme Court in a 5-4 decision ruled the preclearance requirement was unconstitutional because data on discrimination had not been updated. The defect cited in Shelby v. Holder can be repaired quickly through legislation, but Republicans in the US Congress have resisted any such measures.

As a result, in state after state, Republican state legislatures have implemented new laws and strategies targeting specific groups, generally those that tend to vote for Democrats. Voter rolls have been purged under dubious circumstances, photo id requirements have been imposed with deliberate intent to exclude certain citizens, efforts to gerrymander election districts have been intensified and a raft of other low level inconveniences have been implemented, such as moving or closing polling places in neighborhoods with significant minority residents and limiting time and places for registration drives, for early voting, and for mail-in voting.

A notable example of the extremes to which Republican governors have been willing to go, the Texas chief executive, Greg Abbott has limited mail-in drop boxes to one per county, regardless of population. This represents a significant hardship for voters in the state’s most populous counties, which are mostly Democratic. That his action has been upheld by the US Fifth Circuit Court reflects the effectiveness of the collusion between Trump and GOP Senate Majority Leader Mitch McConnell in remaking the federal judiciary.

Added to the assault on voter rights, has been Donald Trump’s persistent ranting about voter fraud and “rigged” elections. Without any evidence of meaningful violations in previous elections and without any sympathy for voter fears about the pandemic, he has labeled anticipated mail-in voting this year a “disaster” and “a whole big scam.” Trump also has encouraged mail-in voters to go to polling places on Election Day and cast an in-person ballot if poll workers cannot confirm their mail-in ballot has been received. Even after being warned there are laws against voting twice, he continues to offer that advice.

The new postmaster general, a wealthy Trump supporter, tried to complicate the mail-in voting issue by imposing drastic budget restrictions on the US Postal Service, raising questions about its capacity to handle the likely increase in mail-in voting. In addition, the US Department of Justice, under William Barr, has already begun investigating possible election fraud cases. There is no indication DOJ is pursuing any cases of discrimination under the remnants of the Voting Rights Act.  

With characteristic bombast Trump also has assailed peaceful protesters as “thugs” and “anarchists,” and given a greenlight to private militia groups, like the “Proud Boys.”  Trump’s rhetoric and his unwillingness to condemn violence and unlawful behavior by his supporters is heightening the danger that mayhem could occur during the 2020 campaign and afterwards. His refusal to state a willingness to concede peaceably if he loses November’s election simply adds fuel to the fire he’s laid.  

It’s not only Democrats who are concerned about the atmosphere in which the 2020 election is being held. Benjamin L. Ginsberg, a recently retired attorney with a long track record of representing Republican Party groups, wrote an op-ed piece for the Washington Post in September stating:

The president’s rhetoric has put my party in the position of a firefighter who deliberately sets fires to look like a hero putting them out. Republicans need to take a hard look before advocating laws that actually do limit the franchise of otherwise qualified voters. Calling elections “fraudulent” and results “rigged” with almost nonexistent evidence is antithetical to being the “rule of law” party.

I will still vote in this year’s election, but not by absentee as I originally intended in view of the pandemic and my age. Instead, I will take advantage of early voting to insure that my vote will not be endangered by mail problems or the continuing changes related to absentee voting.

It’s regrettable that our nation’s current leadership has created an environment in which respect for my right to vote, and yours, is in doubt. Democracy cannot survive under those conditions.

 

Importance of Court Overblown

Supreme Court Justice Ruth Bader Ginsberg’s death has roiled America’s politics in midst of a presidential election, setting up yet another fight over control of the nation’s highest court. Ironically, conservatives already have a 5-3 majority on the US Supreme Court and nothing is likely to prevent Donald Trump and Senate Republicans from enhancing that margin.

What are the stakes here? Is the future of the republic truly at risk?

Obviously, Trump is claiming the Ginsberg vacancy has created the chance to secure conservative dominance of the judiciary for the foreseeable future and he has been crucial to that opportunity. Unmentioned by Trump, but clear to all is that the Ginsberg vacancy offers a means for him to shift the focus of the presidential campaign from his administration’s shortcomings with regards to the pandemic and the economy. More than 209,000 deaths and more than 30 million people unemployed do not make a strong case for re-election.

Trump’s nominee to replace Justice Ginsberg has all the usual credentials Republican judicial appointees have possessed during the past three decades. Amy Coney Barrett is openly anti-abortion and appears to have strongly conservative views on most issues, including healthcare, consumer protections and workers’ rights. She has little experience in private practice, having spent most of her legal career as an academic, primarily on the law faculty of her alma mater, Notre Dame.

Barrett currently sits on the Seventh Circuit of the US Court of Appeals. She was nominated by Trump and confirmed by the US Senate in October 2017. This is her sole experience as a judge. Barrett calls herself an “originalist.” She clerked for and is an admirer of the late Justice Antonin Scalia.

Despite the thinness of her credentials, Barrett is likely to be confirmed since Republican Leader Mitch McConnell exercises iron control over his GOP majority.  Senate Judiciary Committee Chair Lindsey Graham (SC) even said last week that all committee Republicans will vote for the president’s nominee—not waiting to learn who that nominee was. So much for the “separation of powers.”

Graham, like several other GOP senators facing re-election, may also view the upcoming hearing as an opportunity to reboot his campaign. It has been tough to defend chaotic responses to the pandemic and its economic fallout by Trump and Senate Republicans. Allowing federal relief aid to expire is difficult to justify in face of the hardships weighing down millions of Americans.

What should be the public’s reaction to this sham process?

First, we must recognize the addition of another conservative Republican to the Court is a done deal. Barrett will be confirmed. She may not be your choice, but Senate Republicans have the votes and no apparent inclination to change their collective mind.

Democratic senators should also recognize this fact. Launching into lengthy soliloquies about the injustice of it all or trying to bully the nominee into revealing her suspected bias will not derail the train. Such tactics will merely allow Graham and his GOP colleagues to drag out the hearing and distract voters from the campaign at hand.

Second, just how much does it matter that the GOP will have such dominance on the Court? Having an outsize majority of justices appointed by one party has happened before.

When Franklin Delano Roosevelt assumed office in 1933, the Court was more divided.  Seven justices had been appointed by four Republican presidents and only two by a Democratic one. And in view of complaints that Ginsberg’s death allows Trump to appoint three to the Court, note FDR’s predecessor, Herbert Hoover, also named three justices during his single term. 

The conservatively oriented Court in the 1930s caused FDR some grief during his first term, but the resistant justices became more agreeable to the New Deal after he won a landslide re-election in 1936, sixty-one percent of the popular vote and ninety-eight-point five percent in the Electoral College. Of course, his threat to “pack” the Court may have helped.

Fact is the framers of the US Constitution did not intend the Court to be an initiator of policy. It was to step in only when one of the other branches or a state had moved out of bounds. In No. 78 of The Federalist Papers, Alexander Hamilton wrote, “…the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution; because it will be least in a capacity to annoy or injure them.” He went on to assert, “…the judiciary…has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever.”

In recent years the Court has assumed a more prominent role than anticipated because of the failure of the executive and legislative branches to effectively seize the initiative in addressing the needs and concerns of the American people. For some thirty years now gridlock seems to be the preferred mode of operation in Washington. And while most of the difficulty may be attributed to Republicans, the Democrats are not blameless.

Finally, it is noteworthy that Trump and the Senate Republicans are acting with great urgency in processing Barrett’s nomination. This is in stark contrast to how vacancies in many key federal agencies have been allowed to linger.

For example, the agency charged with protecting workers’ right to organize, the National Labor Relations Board, did not have a quorum (four) to function for more than six months between December 2019 and July 2020. The board is supposed to have five members. It still only has four, and three are Republicans.

And the six-member Federal Election Commission which enforces campaign finance laws has lacked a quorum (four) for most of Trump’s term. For only one month since August 2019 has the commission had four members. Currently, it has three with one, a Republican, nominated. His confirmation will leave the commission likely deadlocked.

Effective governance seems elusive in Washington today.