There is a lot of talk in this tempestuous political moment about what will happen after the November 3 election, especially if the results are close and Donald Trump attempts to claim an illegitimate “victory.” But what could turn out to be the most concerted effort to overturn the will of the people is taking place before most ballots are cast.
In the courtrooms of battleground states across the country, lawyers associated with the Republican Party, Republican officials, and the Trump campaign—and jurists who do their bidding—are creating precisely the sort of preelection chaos that Trump wants. Because there are so many different legal challenges, lawsuits, court orders, decisions, and rulings in so many states, it is easy to miss the full picture of a strategic assault on voting rights.
But that assault is occurring. Indeed, it is going according to plan.
The New York Times reported in May that the GOP has allotted millions of dollars to fund legal actions as part of a $20 million plan to challenge “voters deemed suspicious.” That obscure phrase translates as voters who might cast Democratic ballots. “This is a burn-it-down strategy, a strategy to win at all costs,” said Lauren Groh-Wargo, the senior adviser with the voting rights group Fair Fight, who predicted that spending on lawsuits and other efforts to erect barriers to a high-turnout election would easily exceed the $20 million figure. And that wasn’t counting the use of taxpayer funds by states, such as Florida, where Republican officials are leading the charge.
Now, egged on by President Trump, Republican lawyers are clogging the courts.
The effort to make it harder to vote have been averted in some states. But in several of the most contested battlegrounds, Republican officials and lawyers have succeeded in getting conservative courts to discriminate against groups of voters that might be expected to lean toward the Democrats, and to create roadblocks to voting by mail in an election where the coronavirus pandemic has made that method a preferred option.
Consider the news from just the past week regarding voting in Florida, Iowa, and Pennsylvania.
On Friday, the Atlanta-based US Court of Appeals for the 11th Circuit issued a 6-4 decision that upheld a fresh take on the Jim Crow–era poll taxes that warped politics in the segregated South. The court upheld a law enacted by Florida Republicans that requires former felons to pay off outstanding court fees before they can cast ballots. “This ruling runs counter to the foundational principle that Americans do not have to pay to vote,” explains the American Civil Liberties Union’s Voting Rights Project attorney, Julie Ebenstein, who says, “The gravity of this decision cannot be overstated. It is an affront to the spirit of democracy.” Is is estimated that 774,000 former felons in Florida owe outstanding court debt. While it is impossible to say how many of them will vote, and how many might vote for Democrats Joe Biden and Kamala Harris, it is important to remember that this drive to disenfranchise hundreds of thousands of voters was propelled by Florida Governor Ron DeSantis, an ardent Trump backer. It is also important to remember that Democrat Hillary Clinton lost Florida in 2016 by less than 115,000 votes.
On Monday, Iowa Judge Ian Thornhill voided absentee ballot requests sent out by Johnson County Auditor and Commisioner of Elections Travis Weipert because, in order to avoid confusion and make the process easier for voters, the forms have personal information (name, address, date of birth, voter ID number) already filled in. Lawyers for the Trump campaign and state and national Republican Party organizations mounted legal challenges to the practice in a number of counties, and last week succeeded in voiding 64,000 requests for absentee ballots in populous Linn (Cedar Rapids) and Woodbury (Sioux City) counties. In Johnson County, home to the University of Iowa and and a liberal stronghold, Weipert had mailed out 92,000 forms. Now, because of the judge’s ruling, the Associated Press reports, “anyone in Johnson County who sent in a pre-filled absentee ballot request form and still wishes to vote by mail in November must send a new request form.” This puts a new burden on voters in a state where Real Clear Politics average of recent polls suggests that Biden is within two points of overtaking Trump.
Multiple lawsuits have thrown officials for a loop as they attempt to plan for an election that is now less than 50 days away. Trump is obsessed with Pennsylvania, which he won narrowly in 2016. Now, the Trump campaign is in the courts seeking to prevent voters from using drop boxes to deliver their absentee ballots. A number of states use drop boxes to allow voters to deliver their ballots without mailing them. That speeds up the process at a point when there are widespread concerns about the efforts of Postmaster General Louis DeJoy, a Trump campaign donor, undermine the operations of the postal service. At the same time, Republican legislators in Pennsylvania have tried to ban the use of drop boxes and put new restrictions on deadlines for requesting mail ballots. “It should be a bipartisan issue to allow every Pennsylvanian to have access to their fundamental right to vote,” Pennsylvania state Representative Malcolm Kenyatta, a Philadelphia Democrat, explained in early September when the legislature began wrangling with the issue. “But what this [measure] does is make the process inaccessible for Pennsylvanians. And unfortunately, it has been driven by national politics.” The national politics are clear enough: In 2016, Trump won Pennsylvania by less than 45,000 votes out of more than 6,000,000 cast. Pennsylvania polls have Biden leading the 2020 race. But Trump hasn’t given up on gaming the process in his favor; he was tweeting Saturday about “Mail-Vote Madness” and accusing Democratic Governor Tom Wolf of trying to “defraud the people of the United States.”
In battleground state after battleground state, Trump-aligned lawyers have ramped up efforts to restrict voting—especially voting by those who might cast ballots for Biden and other Democrats. The Republicans are losing some fights. In Ohio, for instance, a judge ruled Tuesday that Republican Secretary of State Frank LaRose’s move to limit the use of drop boxes by voters casting absentee ballots was “arbitrary and unreasonable.” In Wisconsin, the state Supreme Court voted 4-3 Monday to let 1 million requested absentee ballots be sent to voters before a Thursday deadline mandated by state law; the court had briefly blocked the mailing of ballots in order to resolve a dispute over whether the Green Party (which was represented by lawyers who have worked with former governor Scott Walker and other top Republicans) had qualified for the ballot.
But in other states, the chaos continues. Last week, in the suddenly competitive state of Texas, a three-judge panel of the US Court of Appeals for the Fifth Circuit ruled that Texas does not have to offer a vote-by-mail option to all eligible voters. The court embraced a Republican argument that the state should be allowed to impose a 65-and-over age limit on voting by mail. The decision discriminates against younger voters who polls suggest are more likely to vote Democratic in a state where the latest Dallas Morning News poll finds Trump’s advantage over Biden has slipped to just 2 points. Democrats have argued for months that limiting vote-by-mail options “simply on account of their age is facially unconstitutional.” True enough. So, too, are poll taxes. But, this fall, the Trump campaign, the Republican Party and their judicial allies are not worrying about the Constitution. They are in full burn-it-down, win-at-any-cost mode.