A Man-Made Danger to Elections
Terry H. Schwadron
April 5, 2020
On top of all the medical developments from coronavirus spread and its economic fallout, there is a building concern about voting and elections.
While a handful of states either have or are discussing postponing presidential primaries, there is a distant drumbeat that is getting louder about whether Donald Trump somehow will stretch the declared national emergency to postpone the November elections.
This week, the focus is on Wisconsin, where a Republican majority in the legislature resisted a late call by the Democratic governor to postpone the election, out of health fears for voters and poll workers. But Republicans insisted on going ahead, and actually said aloud that a low turnout will help keep a conservative state Supreme Court justice in office.
The concerns split into a practical discussion about what it would take for states to move quickly now to adapt to a mail-only ballot and a more nefarious plot that would somehow result in Trump moving to remain in office without benefit of an election by declaring it a national security issue to keep people from congregating for voting.
The practical issues are not inconsequential, but clearly are resolvable. Various estimates suggest that the printing of extra ballots, use of postage and arrangements for counting mailed ballots would cost about $2 billion. It would require adjustments for voter registration and a large-scale voter education, plus some ballot security measures.
But it is solvable. Several states already depend heavily on mailed votes.
New York state has just ordered overprinting of its absentee ballots along with a legal review of the current regulations regarding the allowable reasons for absentee ballots.
By comparison, while the nation has held elections even during the Civil War, there is growing distrust among anti-Trumpists that this president may use the continuing medical emergency try to find a way to wiggle around Constitutional barriers in an attempt to remain in office.
Even short of calling off or postponing elections, Dahlia Lithwick, Richard Hasen, Josh Geltzer and others at Slate, have been arguing that there are ways that interference with the elections, including ways that we have not even considered yet, can grow. Those start with the kind of rules spreading now against having public gatherings, the obvious changes coming to campaigning, and the anticipation of challenges to mailed ballots from districts where voter suppression efforts historically have proved strong.
It’s not hard to imagine a situation in which enough mail ballots — or printable ballots sent by mail — are challenged as to force the popular vote to an Electoral College vote or a decision on who wins to the House of Representatives. Some people stuck at home might not be equipped with home printers to obtain the ballot in the first place.
In other words, an already very messy political landscape in a very divided country could easily slide into a chaotic grab for power — all while a renewed coronavirus is taking hold in late fall.
The New York Times ran a long editorial to promote mailed ballots, and Jon Meacham, the historian, has argued that we should be looking to Abraham Lincoln’s example in pushing for elections even in the middle of Civil War.
As things stand, the Constitution requires elections, but not their timing. That power is in the Congress, a power upheld in a 1934 Supreme Court decision. Meachem notes that scholars believe that Trump likely could not use national emergency rules to postpone the election without congressional agreement.
Trump argues simply and without evidence that if we actually allow people to vote by mail, there will be enormous fraud and that no Republican could win ever. Not that I have a problem with that result, but the argument, again, lacks any evidence or reason.
Amid calls from hospitals for emergency medical supplies amid the virus spread, Trump has been criticized for his failure to completely invoke emergency status. It would be ironic if the ever-unpredictable Trump started to draw criticism from too strong an interpretation of emergency powers.
What does seem clear is that by declaring himself a “wartime president,” Trump, who bumbled through the early days of this virus crisis, is now trying to present himself as a calm, deliberative and overwhelming good manager of horrible times. In other words, he is working hard to make the deficit of bumbling into a credit for electioneering purposes.
If you can believe the spotty polling to date, Trump’s approval ratings actually have increased since he has backed government actions like sending cash to suddenly jobless homes. So, showing off “wartime” powers may be good politics.
It is early yet in virus terms. If Trump owns the good that comes with cash payments, perhaps he also owns responsibility for the anticipated large number of coronavirus deaths as well.
In any event, we cannot let a wartime declaration mask an attempt to keep this president in office after November.