This episode of Next Gen Voter looks at the flurry of Voting Rights Lawsuits filed in the days before the 2020 Election. Will EVERY vote count?
This episode of Next Gen Voter looks at the flurry of Voting Rights Lawsuits filed in the days before the 2020 Election. In this episode we cover:
Listen now to make sure your vote COUNTS!
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Hi I’m Riley Daniel, and this is the next gen voter-the only podcast of the next gen, by the next gen, for the next gen. We are just hours away from the first polls closing, starting in Indiana and Kentucky, and this election season, despite all the craziness in the world outside, has been nothing short of a marvel of consistency. For the last two months or so, we have seen Biden holding a 8 point national lead, with that lead at about 2 points in the close sun belt states of Florida, Arizona, Georgia, and North Carolina and about 5 points in the rust belt. Due to this discrepancy between the polling margins nationally and the margins in the pivotal swing states, Donald Trump is only about a 5 point swing(either via polling error or change in projected turnout) from flipping back enough states to eek out an electoral college win. In this scenario, you’d expect the GOP to be out going door to door and flooding the airwaves, trying to get their supporters to the polls. However, it seems as if they feel that they have maximized the turnout of their base, and are instead looking to try and discourage votes from democrats and minorities, via all sorts of election restrictions. Today, I will explore some of the actions taken in the last month done for the specific purpose of making it harder for others to vote.
I’ll begin with Pennsylvania, the state that 538’s election model gives a greater than ⅓ chance of being the tipping point state, or the state that delivers the winning candidate the decisive 270th electoral vote. Early this October, the Trump re election campaign filed a lawsuit in the western District of Pennsylvania, seeking to limit the use of drop boxes across the state for voters to place their mail-in ballots in, claiming falsely that these drop boxes lead to voter fraud. Unsurprisingly, after the campaign was unable to meet the court’s request for evidence of the dangers of dropboxes, this lawsuit was dismissed. Dropboxes also were the target of legal action by the republican governor of Texas, who instituted a rule that limited each county in the state to one dropbox. This meant that Harris County, which includes the diverse city of Houston, and has a population of 4.5 million, would have the same number of dropboxes as Loving County, which has less people in it than a high school pep rally. How is that fair? It’s supposed to be one person, one vote not one county, one box. Immediately, the Anti-Defamation League filed lawsuits in state and federal district courts, which they won, as the courts ruled that this move disenfranchised the voters of more popular counties. However, the governor appealed to both the Texas Supreme Court and the 5th circuit of appeals, both of which overruled the decision of the original judges, and allowed this blatant attempt at voter suppression to continue. Fresh off this victory against democracy, Texas Republicans filed a lawsuit Friday, urging a federal court to toss out all 127,000 votes already cast via curbside voting in Democratic Harris County. This was a process that was agreed to by both parties and signed off on by the governor well before voting started. There is no difference between curbside voting and voting indoors, other than it protects people from catching COVID. They still are subject to the same voter ID laws. However, after republicans saw the massive turnout in early voting in these counties, some of them decided that this should no longer be allowed. However, they think it is OK to not only strike down a law, but declare votes that have already been legally cast null and void. This is stuff you normally see in a banana republic, not in the United States. Now, I hope that this lawsuit is thrown out by the federal court when it is heard on Monday. However, if it is struck down, I want anyone who may be in this situation to know that they can, and should go to the polls on Tuesday and cast a provisional ballot.
One state that actually seems to be doing a surprisingly good job of handling this pandemic election chaos is the state that is nearly synonymous with election controversy:Florida. There have been no problems with the rules and systems put in place by the Florida Board of Elections, largely because they were a state that was already used to a large number of absentee ballots, due to all the retirees who live in the state. The thing about Florida, is that, unlike other states, Florida only accepts votes received before 7 pm on Election day, not allowing for possible mail or transportation problems. However, just yesterday, 4 dozen ballots were found lying around in a postal service building in Miami-Dade County. Thankfully, these ballots have been taken to the correct location. However, it makes me wonder if there are other groups of ballots that will not make it because the USPS is running behind. Just like the voters in Harris County, if you know that by election day, your ballot hasn’t been received, go to your precinct and file a provisional ballot.
In North Carolina, We saw a similar attempt to restrict votes that arrive late, albeit with different results. Under North Carolina state law, all ballots that are received by 3 days after the election must be counted as long as they are postmarked by election day. However, because of the pandemic, the bipartisan North Carolina Board of Elections unilateral extended this deadline to Nov 12, 9 days after the election. The state GOP sued, arguing that this power was reserved only to the state legislature. However, the high court disagreed in a 5-3 ruling, with justices Alito, Gorsuch and Thomas dissenting. The reason that such a conservative court would refuse to step in to overrule an election law that seems to be clear cut according to the textualist philosophy employed by the court’s majority has to do with the “Purcell Principle”, which refers to a 2006 case where the supreme court stepped in to overrule an appeals court which had struck down a voter ID law, ruling that courts should not change the procedures of the election so close to an election in order to not confuse or dissuade voters. This principle was once again shown on the court’s decision with regards to an attempt to allow votes postmarked by election to be counted up to a week later in Wisconsin. Although this change was approved by a federal trial court, it was struck down by a federal appeals court whose ruling was confirmed by the Supreme Court in a 5-3 ruling this week. Although this decision is likely going to disenfranchise thousands of Wisconsin voters, the court narrowly avoided that issue by striking the trial court’s actions based on a separation of powers argument. However, Justice Kavanaugh’s concurring opinion in this case struck fears in the heart of anyone who believes that every vote should be counted when he said “ Those States(which prevent ballots from arriving after election day) 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.” Except, there is no result to flip because the numbers reported to TV stations are nothing more than partial numbers, which are not actually confirmed until weeks later
To me, The Purcell Principle makes sense. Don’t mess with election rules right before election day. However, in a case in Minnesota, the courts decided to go completely against precedent and strike down a new election rule which would have added a grace period for ballots to be received after election day, as long as they are mailed by election day. However, the 8th circuit court of appeals ruled that any ballots that are received during this period must be treated separately than the ballots that are received on time or cast on election day. But what happens to those people who mailed a ballot sometime last week that hasn’t arrived yet, but would have made it in the grace period? Do their votes get to count? The problem with these lawsuits that are designed to make it harder for votes to count is that they leave voters without remedy to fix their unintentional disenfranchisement. As of right now, it is unclear whether or not the votes received after election day will count, which is why anyone who mailed a ballot in Minnesota that has not been received yet should go to the polls and cast a provisional ballot.
Now you may be spinning a little bit, as I have been whipping around from state to state with no easily discernible pattern. However, there is a discernible pattern in each and every one of these cases and it’s a dangerous one: In every case, of which there have been 35 nationwide, the republican party has sought to make it harder, not easier, for American citizens to vote in the most important election of our lifetimes, and in some cases, federal judges have been more than willing to let them suppress votes. This argument has been reflected by the president, who has begun planning to prematurely claim victory if the early results show him leading Tuesday night, regardless of how many ballots may be outstanding. This idea is a flagrant violation of our democratic institutions, and it is up to us to make sure that every vote is counted.