As the US election looms, a shadow campaign is running to suppress votes, with Trump Supreme Court pick Brett Kavanaugh using a disgraced argument he first tried as an adviser to George W. Bush. By Rick Morton.
Trump 2020: This is how you steal an election
At first glance, there was nothing especially remarkable about the decision handed down by the Supreme Court of the United States on Monday, which rejected attempts to provide a Covid-19 buffer for the tallying of votes in the state of Wisconsin. The application had asked for additional time to count votes that may be late to arrive because of issues with the postal service. The court said no: if the ballots are not in by November 3, even if they are postmarked earlier, they won’t be counted.
This seemed ordinary enough. As a general rule, America’s highest court doesn’t like shifting the goalposts close to an election – the so-called Purcell principle. But there is nothing ordinary about this Supreme Court, this election, or the powerful forces that seek to shape it to their ends.
In the final months of an increasingly bruising campaign, in which President Donald Trump appears to fear that the crude numbers are against him, right-wing strategists have returned with vigour to a familiar strategy: voter suppression.
Republicans have never had friendlier ears in the nation’s courts to hear their arguments in favour of policies designed to keep minority voters away from polling booths or, in the most extreme cases, throw out otherwise valid votes because they don’t meet arcane and slippery standards.
During his presidency, Trump has appointed 194 federal judges – including Amy Coney Barrett, Neil Gorsuch and Brett Kavanaugh to the Supreme Court. In all, this represents a quarter of the federal judiciary. Trump has also installed 53 judges to the appeals court, “far higher than the number appointed by nearly every other recent president at the same point in their tenure”, according to the Pew Research Center. Many of these appointments have links to the ultra-conservative Federalist Society, which began in the 1980s as a law student club and has grown into one of the most influential legal organisations in the US.
These appointments are especially important given the way the legal system is being used to pre-emptively shape the election, particularly on early ballots.
By the middle of the week, more than 70 million people had already cast early votes in the US election. That is more than half the number of people who voted during the entire 2016 race. Crucially, the majority of these votes – almost 50 million – were sent in by mail, and it’s here the contest becomes a bare-knuckle brawl.
In his concurring opinion that sounded the death knell for attempts to block Wisconsin’s electoral law, Brett Kavanaugh echoed his president’s conspiratorial doubts about vote tampering and delayed ballots. He noted about 30 states require absentee ballots to be received by election day, not just mailed by then.
“Those States want to avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election,” he wrote. “And those States also want to be able to definitively announce the results of the election on election night, or as soon as possible thereafter.”
Such a view is considered an “originalist” position on the US constitution – that the guiding document should be read in the mindset of an ordinary person alive at the time of its drafting in 1787. It could prove key to keeping Trump in office.
During this election campaign, Donald Trump has readily stoked fears of electoral fraud in a nation that no longer trusts anything except mistrust. “The only way they can take this election away from us is if this is a rigged election,” he said from a rally stage in North Carolina in late August. “We’re going to win.”
This was not a momentary slip of the tongue: it has become part of the president’s stump speech.
But this campaign has become more focused, and more hostile, as election day has neared – to the extent that even veteran poll watchers are expressing shock.
“If you step back for a moment it is simply astounding to me that so many are working so hard to make it more difficult for people to vote,” Rick Hasen, professor of law and political science at the University of California, Irvine, widely regarded as the foremost electoral law expert in the US, said last week.
The Supreme Court has already issued orders to overturn federal court decisions to expand voting access in this election at least seven times, including in the Wisconsin matter. Pennsylvania Republicans, meanwhile, lodged a second appeal in the court about an extension for mail-in ballot counting in their state.
The Pennsylvanians waited until just before Barrett’s confirmation to return to dispute a lower court’s ruling that the deadline for counting mail-in ballots be changed to November 6 at 5pm – just three extra days after Tuesday’s poll.
Both Pennsylvania and Wisconsin are seen by the Republicans and the Democrats as key states, because Trump won them by just 44,000 and 23,000 votes respectively in 2016.
There have also been legal challenges by Democratic state attorneys-general against a broad “upgrade” program of the US Postal Service by its chief executive, Louis DeJoy, a donor to Trump’s campaign. By mid-October, the USPS had lost eight court challenges in a row.
According to the Brennan Center for Justice, there have been at least 250 state and federal challenges or counter-challenges to voting rights laws across America this election. These challenges have been launched by minority interest groups, Democrats, Republicans and in multiple cases by Donald J. Trump for President Inc, the campaign vehicle of the commander-in-chief.
Amid this deluge, legal scholars were not expecting the Wisconsin matter in the Supreme Court to be particularly incendiary, especially given the Purcell principle.
But, buried in a footnote, Justice Kavanaugh revived the spectre of a legal argument that was considered too extreme even at the height of the legal fight between George W. Bush and Al Gore following the 2000 election. While Bush won that case, the Supreme Court expressly rejected the argument now embraced by Kavanaugh.
Citing Justice William Rehnquist’s concurring opinion in that divisive case, Kavanaugh wrote: “Under the US Constitution, the state courts do not have a blank check to rewrite state election laws for federal elections.
“Article II expressly provides that the rules for Presidential elections are established by the States ‘in such Manner as the Legislature thereof may direct’.
“The text … means that ‘the clearly expressed intent of the legislature must prevail’ and that a state court may not depart from the state election code enacted by the legislature.”
Kavanaugh was a member of Bush’s legal team in that fight for the presidency, as were current Chief Justice John Roberts and incoming associate justice Amy Coney Barrett. Kavanaugh’s controversial invocation of the once abandoned constitutional reading was echoed in Justice Neil Gorsuch’s separate opinion in the Wisconsin case.
“Looking beyond this election, though, it is hard to escape the fact that the Supreme Court is poised to allow Republican states to engage in all manner of voter suppression in the name of protecting the rights of state legislatures,” Professor Hasen wrote in The Washington Post late last week.
“This is true not just in election contests but in other cases that raise issues under the Voting Rights Act and the Constitution. That is something to panic about.”
The Wisconsin decision follows other, worrying legal ploys to aid the Republican vote.
Some states, such as Texas and Ohio, have placed limits on the number of ballot collection bins to just one in each county. Many voters face a 160-kilometre round trip just to drop off their vote.
In Florida, a key swing state, there has been a battle raging over a 2018 referendum, which granted 1.4 million convicted felons the right to vote. This presented a clear threat to the Trump campaign, as the presidency won Florida by only 113,000 votes in 2016.
A successful challenge was mounted in a district court to a central caveat of the referendum, which stipulated those with convictions could vote only if they had served all their sentences, and paid all their fines, fees, costs or restitution. Judge Robert L. Hinkle said this caveat constituted a “pay-to-vote system”.
However, Hinkle’s ruling was overturned in the 11th Circuit Court of Appeals – a court Trump managed to flip last year to a Republican majority. Earlier this year, he added another controversial pick – former Alabama solicitor-general Andrew Brasher.
If the former prisoners haven’t paid their fines, they won’t be allowed to vote.
The Republicans, who have essentially won a 40-year game to stack America’s courts, know there is a limit to the judiciary’s influence. Both the popular vote and electoral college margins would have to be slim to place the Supreme Court in a position where its majority could decide who is the next president of the United States.
But there is another tool that has been deployed to buttress the legal attempts at voter suppression – mass disinformation.
US intelligence officials confirmed that foreign disinformation attempts specifically targeted Black voters and other minority groups ahead of the 2016 election. Authorities have confirmed it is happening again, both from foreign actors and those within the US.
“In 2020, it has absolutely exploded,” Associate Professor Keesha Middlemass of Howard University told a Brookings Institution forum this week.
These disinformation campaigns are organised and, according to Howard University strategic communications assistant professor Roger Caruth, finely tailored to different ethnic minorities.
“Most people who are from places outside of the United States [are] using WhatsApp and, according to our reports, have robocalls and targeted advertising in their languages,” he said. “[Those calls and ads] are providing ‘information’ about policies that may affect immigration status and a litany of things that are on that agenda.”
In Michigan and Pennsylvania, meanwhile, minority voters have been receiving robocalls falsely warning them that mail-in voting would result in the harvesting of their private information to be sold to debt collectors and the police.
While disinformation targeting Spanish-speaking voters focuses on immigration, Middlemass said, the messaging for Black voters plays on fears about law enforcement – for example, that “if you vote by mail, that information will be used to get you on an old warrant”. “So these really racialised messages are used to target very particular communities and enough of them will be dissuaded,” she said.
“We know from 2016, you shave off 1 or 2 per cent in a few communities and that can literally change the outcome of the election.”
These methods are as sophisticated as they are insidious.
“We are talking about robots, programmed mechanisms, that look at the different information that is tweeted out, the language that you use, kind of scouring through your posts, and then replicates it,” said Assistant Professor Bahiyyah M. Muhammad of Howard University.
“Non-Pacific Islanders, Indigenous communities, Black communities, Latinx communities, all individuals are targeted through the nuances of the information that they put out.”
It is no coincidence these campaigns are largely targeting minority voters. As America’s demographics have changed, the Republicans’ power base has waned, and with it the party’s prospects of winning elections. Rather than adapt to the new paradigm, the GOP has increasingly relied on suppression to make it appear at the ballot box as though nothing has shifted.
A research co-operative called the Election Integrity Partnership has been tracking instances of these virulent mistruths and the response of the major social media platforms. Since August, the largest platforms have updated or – in the case of Snapchat – introduced election-related policies for the first time. Others, including WhatsApp, Reddit, Gab and the live-streaming app Twitch, have not.
Some suppression is not so technical, said Dr Middlemass, but is just as pernicious.
“The informal tactics is when the police may park their car outside a polling place in a Black community but not in a white community,” she said. “What is that signal sending to voters?”
In Memphis, Tennessee, the Los Angeles Times reported a poll worker turned away people wearing Black Lives Matter T-shirts, telling them they could not vote.
In Pennsylvania, the state’s attorney-general, Josh Shapiro, was forced to warn Trump campaign officials who were caught filming voters as they dropped off their ballots.
“Our entire system of voting is built on your ballot being private and your choice to vote being a personal one,” Shapiro said in a statement. “Depending on the circumstance, the act of photographing or recording a voter casting a ballot could be voter intimidation – which is illegal.”
Nothing is certain in this election, predicated as it is on the shifting sands of perception and what people believe about their institutions.
If Joe Biden and the Democrats do win – the result may take days or weeks – much of the judicial landscape has already been terraformed by Trump’s picks. Many of them are young and will serve lifelong appointments. His impact on the country’s courts will last decades, and that is just in the official sense.
As Rick Hasen notes, if there is a time for panic it may well come after this election – owing to a tiny footnote in an otherwise ordinary Supreme Court opinion authored by Brett Kavanaugh, which opens the way for a legal challenge that 20 years ago was thought impossible.
The battle for voting rights has only just begun.
This article was first published in the print edition of The Saturday Paper on Oct 31, 2020 as "Trump 2020: This is how you steal an election".
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