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Not Stopping Mail-In Votes

Terry H. Schwadron

Sept. 26, 2020

A Politico column captured what I had been thinking: Despite all of his threats, whining, hand-wringing and lawsuits, Donald Trump has not stopped a single mail-in vote — so long as voters follow the exact rules of their state.

Trump’s made quite an effort, an estimated $20 million worth of lawsuits about the possibility of unproven fraud, he has monkeyed with the Postal Service, he had threatened a Trump-appointed Supreme Court majority to grab the election for him, and he has refused to say he will accept the idea of a peaceful transfer of power should the vote go for Joe Biden.

And yes, his threats will prove all too real over the next two months. To help, the U.S. Attorney in Pennsylvania has his opened an inquiry into the disposal of nine military mail-in ballots, apparently by error, in a rural county — in details that Atty. Gen. William P. Barr personally gave to Trump this week.

Challenges in Nevada, New Jersey and Montana are tied up in court, California’s legislature doubled down on the practice, and six other states are moving ahead to offer a mail-in alternative in time of pandemic. The Trump campaign has not sued to stop ballots in the five states — Colorado, Hawaii, Oregon, Utah and Washington — that were already conducting all-remote elections before the pandemic.

Now a case brought by Pennsylvania Republicans looks to be the first to be appealed to the U.S. Supreme Court since the death of Justice Ruth Bader Ginsburg on the legality of allowing voters to return mail ballots up to three days after Election Day. Pennsylvania’s top four Republican legislators want an emergency stay on a state court decision that the practice is fine. However, that ruling also endangers ballots not tucked into a separate privacy envelope, per the court.

Of course, this is exactly the kind of power use of court majorities for political gain that is causing all the consternation about Ginsburg’s death. Her passing marks a change in political leanings among the remaining justices, and the question lingers about how justices appointed by Donald Trump will act on an issue that Trump himself believes is political life or death.

Last week, the Pennsylvania Supreme Court ruled in Democrats’ favor to permit voters to turn in ballots via drop box in addition to using the Postal Service up to three days after Election Day and blocking a Republican effort for partisan poll watchers to be stationed in counties where they do not live. Basically, the court said that ballots postmarked by Nov. 3 should be counted.

Where’s the Fraud?

The Republican argument is that the wording of the ruling actually allows votes even after election day — an argument about fraud that we’ve been hearing with slight variations a lot from Trump.

In Pennsylvania, which was decided in 2016 by 44,000 votes or less than a single percentage point of total votes, any such ruling could affect the outcome,.

An appeal would go to Justice Samuel A. Alito Jr., who oversees the Philadelphia-based U.S. Court of Appeals for the 3rd Circuit, but the entire court can take part in the decision. Without Ginsburg, the court has five justices appointed by Republicans and three by Democrats — with a Trump nominee to the open seat expected Saturday afternoon.

Of course, similar court challenges are going on in other states.

In Nevada last week, A federal court rejected the Trump campaign’s attempt to roll back changes allowing for distribution of mail-in ballots. Of all the challenges, this is the one that concerns distribution of paper ballots by mail to all registered, active voters, whether or not they asked for one. The judge said the campaign had failed to establish “standing” for their suit by not showing evidence of fraud.

Nevada and other states had loosened rules concerning mail ballots or mailed ballot applications because of concerns that the coronavirus pandemic could prove harmful for those standing in long voting lines.

Confusion over Impact

Among politicos, there is some difference about the efficacy of all of this. Some allies see his strategy as spreading confusion and fear, and adversely affecting Republican mail-in votes. Recent polling shows Republicans have become concerned about remote voting, and Democrats are outpacing Republican requests for absentee ballots in some swing states.

“If there is a threat to our election this year, it’s not mail-in ballots,” Tom Ridge, a former Republican governor of Pennsylvania who co-chairs VoteSafe, a bipartisan group pushing for more mail-in votes and safer in-person voting told Poltiico. “It’s the president sowing doubt in the results of the election.”

Everyone can see that Trump’s statements are efforts to undermine confidence in any election results showing him losing. The open questions that follow all center on how he or others might try to use force to avoid having two presidents trying to take office on Inauguration Day.

Of course, for the umpteenth time this season, we should remind that there has been no evidence of mass manipulation of actual ballots. But decisions by courts or election officials to enforce various vote mechanics can, in fact, invalidate thousands of unopened ballots.

Maybe Trump’s FDA can come up with a quick vaccine to save those ballots.


The Daily Maw:

For four years, Donald Trump has attacked Obamacare, and his team is about to ask the Supreme Court to throw out the program as illegal. This week at a campaign rally, Trump issued a toothless executive order merely asserting that “it is the official policy of the United States government to protect patients with pre-existing conditions.” That’s it — no system to deliver it, no law to deliver it, no details, no way to pay for such a program. As a Washington Post headline had it, Trump now is settling for rebranding Obamacare as his own even while seeking to overturn it.

I’ve got a bridge in Brooklyn to sell.


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