Nightmare In November
If there was any question that Trump finally realized that the Supreme Court had handed him massive wins in the two financial documents cases, then the commutation of Roger Stone’s sentence should remove all doubt. Roberts and his two new conservative cohorts, Gorsuch and Kavanaugh, were once again able to seemingly showcase their independence while changing nothing substantively. Trump’s taxes will still be hidden when we vote in November. As Adam Serwer notes, “[I]t is Roberts who is playing games, shielding Trump from accountability and gilding the Court’s image, asserting a bravery and independence that it has not actually displayed. The Roberts Court has completed Trump’s cover-up, while cloaking its reasoning in majestic language about the rule of law”.
As he has done throughout his presidency, each new victory over the rule of law almost immediately begets a further challenge to it from Trump. Literally the day after Robert Mueller testified in Congress, Trump began his extortion of Ukraine in order to create an investigation of Joe Biden. In the aftermath of his impeachment acquittal in the Senate, Trump began dismantling the oversight provided by the Inspectors General in multiple agencies. At the same time, he directed Barr to intervene in the cases of Flynn and Stone and attempted and often succeeded in attempts to replace US Attorneys who are investigating Trump and his businesses with Barr acolytes. And now, just hours after the Supreme Court shields him from having to produce his taxes for the entire electorate to see, Trump finishes the cover-up of his Russian collusion by commuting Stone’s sentence.
Frighteningly, it now appears certain that any consequence for Trump’s criminality will not come until after November’s election, which will only make Trump more committed to do whatever it might take to stay in office. Barr’s DOJ will continue to prevent his indictment and sabotage any investigations into the President. At this point, it is hard to imagine there is any line Trump won’t cross to try and stay in power. We can almost assuredly see another October surprise, though hopefully not as egregious as Comey’s election-swinging interference in 2016. As Krugman posits, “It’s almost a sure thing that there will be an attempted October Surprise — Barr will bring spurious charges against Biden, or Trump will announce a miracle cure, or something”.
Even more concerning is the fact that this fall’s election will be held under conditions we have never seen in postwar America as we deal with a deadly pandemic made even more dangerous by the administration’s massive incompetence. As we have already seen in this year’s primary elections, the number of in-person voting locations are likely to be severely restricted. This will pose even more problems for minority communities that already see hours-long wait times to vote, but it will also mean that many states will opt to allow more absentee voting, which creates another set of problems and possibilities.
The possibilities are illustrated by the increased voter participation when mail-in and absentee voting options are widespread. In 2018, three of the four states that use mail-in voting were in the top ten in voter participation. The fourth state, Utah, which was using mail-in voting for the first time in a mid-term election, saw the highest growth in turnout of any state compared with 2014. Kentucky saw near-record turnout for its primary elections this year when it restricted in-person voting and allowed no-excuse absentee voting, despite not having a contested presidential primary and only one serious statewide contest on the ballot.
But Kentucky and other states have also illustrated the difficulties with trying to convert to no-excuse absentee voting in such a short time frame. Over 15,000 ballots were rejected in just two of the state’s most populous counties for a variety of reasons including missing or mismatched signatures, unsealed envelopes, and late postmarks. In New Jersey, nearly 10% of ballots mailed in were rejected in May’s primary elections. In New York’s recent primaries, nearly 25% of all absentee ballots in Queens were rejected. Overall in 2018, over 8% of all absentee ballots in the entire country were rejected, an astonishingly high rate.
In Wisconsin this year, thousands of voters never received their requested absentee ballot in time for the election. In most states, absentee ballots are not counted if they arrive after election day even if there is a valid postmark pre-dating the election. Even in states that do count those late-arriving ballots, many are rejected for missing or illegible postmarks or arrive after the extended deadline for receipt. While the US Postal Service (USPS) recommends allowing seven days for delivery, one Florida voter who tracked his ballot found that it took over two weeks to travel 20 miles and was rejected for being late. His ballot was one of the one-third of all Florida’s mailed-in ballots that were rejected for being late in 2018. With the USPS under increasing financial pressure, any further deterioration in service could create havoc with mail-in votes in November.
The issues with signature matching seems especially problematic. Signature comparison is incredibly difficult, especially with older voters who have been registered in the same district for many years. Most states provide no standards and no training for matching signature, leaving the decision to accept or reject a ballot up to the judgement of election officials. In most states, voters will never know why their ballot was rejected and never have the opportunity to prove their signature was valid.
To say all this creates an area ripe for post-election litigation is a massive understatement. For a peek at where we might end up this fall, we can look at the 2008 Senate race in Minnesota where legal challenges to absentee ballots prevented Al Franken from taking his seat for eight months and deprived Democrats of a filibuster-proof majority in the Senate during that time. It took a decision by the Supreme Court to finally decide that race. Considering the Electoral College will have to certify a winner of the presidential election by mid-December, we may be looking at another Supreme Court decision to determine the next President. Similarly, control of the Senate may also end up in the hands of the Court. That could be problematic considering the legitimacy of the Supreme Court is already battered by not only the 2000 Bush v Gore decision but also Merrick Garland’s stolen seat.
The recent Kentucky primary also illustrated another issue we will probably have to confront in the fall, one that Trump will also use to his advantage. Charles Booker appeared to have clearly won the in-person vote on election day but ended losing to Amy McGrath by around 15,000 votes after all the mail-in votes were finally all counted a week later. Trump’s goal is to get as many of his supporters to vote in-person, thereby winning the election day vote, and then declare victory, claiming that all the mail-in and absentee ballots are fraudulent.
In that effort, Republicans have already allocated an over $20 million war chest to fight legal battles this fall. First, Republicans will try to prevent the expansion of mail-in and absentee voting as much as possible, forcing voters to risk their lives in order to vote. In addition, because of pandemic and the enormous budgetary pressures on state an local governments it has created, the number of in-person sites will probably be reduced, forcing minority voters to wait in even longer lines than the hours-long ones they have in the past. The Supreme Court has already shown they will support the Republicans in this effort, denying an extension of the absentee ballot deadline in Wisconsin, as well refusing to fast-track the Democrats’ attempt to expand absentee voting in Texas for those below the age of 65. On election day itself, the GOP will once again be free to challenge “suspicious” in-person voters and their ballots, having been released from a court ban that resulted from the pattern of illegally intimidating minority voters that Republicans have been found to engage in in the elections of 1982, 1986, 1990, and 2004. Finally, there will be the post-election challenges to mail-in and absentee ballots along with the charges that Democrats are engaging in election fraud.
If the potential for election chaos was not great enough already, Trump and his foreign “friends” could pose even greater problems. We know that in 2016 and during Trump’s term so far, the President has asked for help with his election from Russia, Ukraine, and China. There are indications that he has also received help from the Saudis, the Emiratis, and the Israelis. With the exception of Ukraine, all of those countries have an interest in seeing Trump get re-elected. In 2016, the Russians clearly had the capability to corrupt the voter rolls in a number of states and CIA Director John Brennan believed that could also “have done things as far as tallies”. Harry Reid, in fact, claims that vote tallies were changed in 2016, but offered no concrete evidence to substantiate that charge. Because of Trump’s refusal to treat Russian interference as anything other than a hoax and Republican congressional intransigence in providing for the security of our electoral systems, those capabilities probably still exist for Russia.
We already know that Putin is once again trying to interfere on Trump’s behalf in 2020. And with Trump already promoting the “rigged” election theme, Putin will have an even greater incentive to use the capabilities he didn’t use in 2016 to help Trump in 2020. As the folks at Just Security note, “It doesn’t help that the president himself sometimes pushes the narrative that the vote will be rigged, priming us for his possible rejection of the results should he lose in November. In fact, for precisely this reason, it may be in Russia’s interest to interfere more overtly this time around. Even if election systems are secured and actual vote tallies remain untouched, foreign disruptors could still sow discord and chaos by changing numbers on public-facing web sites or spreading rumors that vote tallies are illegitimate”.
The final wildcard, of course, is Trump himself. He is a lawless President supported by a corrupt DOJ. Beyond the expected October surprise, we have no idea what he might do to stop the votes from being counted if it becomes clear he may lose. With the corrupt DOJ and Federalist Society hacks now littering the federal courts, almost anything is possible. And with just six weeks between election day and the Electoral College vote, that doesn’t leave a lot of time to count all the absentee and mail-in votes and litigate whatever shenanigans Trump has pulled.
It’s quite possible that Biden will trounce Trump so badly that there will be no doubt about the result of the election. Even so, the 2020 election is likely to be chaotic. The pandemic will still not be under control. Budget-strapped states will have trouble both providing the absentee and mail-in ballots as well as the in-person voting stations necessary. Normal GOP voter suppression will be even more prevalent than usual. There will probably be no clear winner on election night. Trump will try and declare victory and claim the absentee and mail-in ballots are fraudulent. Even if Trump concedes, the results of down-ballot races will still be litigated, possibly requiring more Supreme Court decisions. The legitimacy of the election will be questioned by whomever loses. As the Just Security article states, “A tight election result could easily lead to drawn-out fights over who is the legitimate winner. And the conditions are right for neither side to have full confidence in whoever is ultimately declared the winner”. It will be chaos, some of it possibly created by foreign interference. Trump thrives in chaos. Democracies do not.