There has long been conflict in the United States over who gets to vote and how. In the years since Barack Obama’s election as president, those voting debates have become increasingly partisan, with Republican elected officials often pushing measures like requiring photo IDs that make it harder for people to vote, and Democratic officials advancing provisions like same-day registration that make it easier to vote.
That long-running conflict over voting has reached a new, more critical phase for two reasons. First, the outbreak of COVID-19 means that people might be risking their health if they opt to vote in person. Secondly, Donald Trump, unlike previous presidents, regularly breaks with democratic norms and values and is now openly suggesting that he might manipulate the electoral system to help him win a second term.
“Trump aides exploring executive actions to curb voting by mail,” was the headline of an article in Politico last weekend (that was a news article, not an opinion piece). Politico’s reporting found that the White House was considering using executive actions to insert itself into the election process, which is usually run by states, including finding ways to make it harder for people to vote by mail.
I think it’s totally appropriate for people to, well, freak out about the potential undermining of the electoral process by Trump and his allies. That said, there is now a flurry of lawsuits, judicial rulings, decisions by election officials at the local and state levels, and claims of voter fraud and voter suppression that can be a bit of minefield to wade through. It’s a lot and it can get confusing.
So to better understand what’s a really big deal versus something that might be problematic but perhaps not as important, we broke out the potential ways that Trump and the GOP could limit voting or undermine the electoral process into five general tactics. These tactics are roughly ordered from least to most alarming. This is not any kind of formal legal guide, although we consulted with some experts for this piece, and some of those experts have law degrees. This analysis also includes some details of the Democrats’ approach to voting rights issues. But we opted to focus on the Republicans because their approach is more controversial than the Democratic one (which is largely to make it easier to vote) and because perhaps the most important figure in the current voting wars is the Republican president.
Here are the tactics:
1. Opposing changes to make it easier to vote amid COVID-19
A lot of the litigation around voting this year pits groups allied with liberal-leaning parts of the electorate, like the NAACP Legal Defense and Educational Fund (LDF) and lawyers affiliated with the Democratic Party, against officials in charge of administering elections (secretaries of state, for example). In these cases, the litigants are trying to get judges to change or invalidate existing laws and force officials to make it easier for Americans to vote and have their vote counted.1
The litigants often invoke the pandemic in demanding these changes, but they are changes in the voting process that these litigants would likely prefer outside of the COVID-19 context, too. For example, the LDF and the Southern Poverty Law Center are trying to get struck down a requirement in Alabama that voters include a copy of their photo ID with their application for an absentee ballot. Getting a copy of your photo ID does potentially increase your chances of getting COVID-19, their brief argues. But the LDF opposed provisions requiring people to present photo IDs as part of the voting process well before the coronavirus pandemic.
Marc Elias, a leading Democratic election attorney, is filing lawsuits in more than two dozen states (including basically every key swing state), to enforce his “four pillars” for mail-in voting in the 2020 election:
- The government prepays the postage for mail-in ballots.
- Ballots postmarked before or on Election Day are counted (as opposed to counting only ballots received by Election Day).2
- Signature requirements for mail-in ballots are administered in a voter-friendly way. (Elias suggests requiring election officials across the country to contact voters before their ballots are ruled invalid because the signature on the ballot does not match the signature election officials have on file.)
- Individuals or groups are allowed to collect the ballots of people and turn them in (to ease voting for people who might not have easy access to mail services).
Liberal-leaning lawyers like Elias are losing some of these cases in court (or at least not getting all the accommodations that they want), with Republicans — including the Trump campaign — filing briefs opposing changes that might make it easier for Americans to vote and have their vote counted. It’s not ideal that Republicans are taking this tack, as the right to vote is so important. And the GOP often uses false or misleading rhetoric to oppose measures making voting easier, such as dubbing efforts by groups to collect and turn in mail-in ballots “ballot harvesting” and suggesting, without evidence, that the process will lead to widespread voter fraud.
That said, we cast this tactic as the least problematic one Republicans are employing because there are instances of Republicans opposing new steps to make voting easier, rather than creating new barriers to voting. Also, even most blue states don’t currently have all four of Elias’s pillars in place. Only seven states (California, Colorado, Hawaii, Nevada, Oregon, Utah and Washington) got “A” ratings for their vote-by-mail systems in a recent Brookings Institute report.
2. Seeking to invalidate laws that make it easier to vote amid COVID-19
During the pandemic, some states, particularly those run by Democrats, are taking affirmative steps to make it much easier to vote. For example, California and Nevada are planning to send mail-in ballots to all the registered voters in their states. Election officials in Pennsylvania have set up boxes for people to drop off their absentee ballots, as opposed to requiring all voters to send them through the mail.
The Trump campaign is filing lawsuits to stop the moves in Nevada, Pennsylvania and other states. The Republican National Committee (which is tightly aligned with the Trump campaign) is involved in litigation in 17 states, again including virtually every battleground state, to enforce its voting agenda, which includes:
- Requiring ballots to be received by Election Day.
- Keeping current photo ID and signature laws in place.
- Opposing people or groups being able to turn in mail-in ballots of other voters.
- Opposing newly enacted plans to allow basically all voters in a given state to vote by mail.
You can see why this is more problematic in terms of democratic values than the previous category: Local and state officials are taking affirmative steps to make it easier for Americans to vote and have their vote counted amid a pandemic and the sitting president’s campaign is trying to reverse those decisions.[newsletter-politics]
For this category, the actions of the five justices on the U.S. Supreme Court appointed by Republican presidents are likely to be particularly important. In all four of the most recent Supreme Court decisions on voting rights issues, the court’s conservative majority rejected attempts by liberal litigants to get existing law changed to make it easier to vote amid COVID-19 (the first category we listed above). Those rulings have infuriated liberals, but I can’t say that I’m surprised by them — Chief Justice John Roberts regularly votes both to uphold existing legal precedents and to show deference to the judgements of local officials and other branches of government in ways that sometimes align with the more liberal justices and other times with the court’s conservatives. So it would be more surprising (and alarming) if Roberts and the high court struck down new laws, like those in California, making it easier to vote.
3. Advancing new practices and provisions that make it harder to vote
This tactic refers to moves like rolling back the number of early voting days in a state or making it harder for students to vote. These are all strategies that Republicans have employed pre-COVID-19. Republicans aren’t rolling out a lot of new provisions to make it harder to vote in 2020 because they already passed a lot of them from 2011 to 2018, and they couldn’t pass a lot of them in 2019 and 2020. (Democrats made a lot of gains at the state level in 2018, and it would have been controversial to adopt such measures after the virus outbreak.)
But Republicans are trying two new strategies, with liberals seeking to get each struck down by courts. First, in Florida specifically, Republicans are complicating the process for ex-felons who have served their sentences to regain their voting rights, despite a 2018 ballot initiative, supported by 65 percent of Florida voters, that was intended to do just that. And in states around the country, GOP officials are planning to send an unusually large number of people to individual voting locations as “poll watchers.” Poll watchers have been used by both parties. But the rhetoric about voter fraud from Fox News and Trump in particular creates the potential for GOP poll watchers to show up at voting places specifically to look for voters they might view as both illegitimate and liberal-leaning (people of color and people around age 18 in particular) and push for the officials running those polling locations to more closely scrutinize those voters.
I view this category as particularly problematic, in terms of democratic values, because it raises the specter of people facing increased difficulty voting in large part because they are perceived to likely to oppose Republican candidates. (The ex-felons who would be newly eligible to vote in Florida are disproportionately Black.)
4. Anti-democratic rhetoric
What I’m talking about here is largely rhetoric that has no direct impact, but has the potential to undermine confidence in the election system. Think about Trump’s comments about potentially changing the day of the election or the unfounded suggestions by the president, Attorney General William Barr and other conservatives that mail-in voting will lead to fraud.
How this tactic affects the election depends on two factors. First, do other members of the Republican Party, such as Senate Majority Leader Mitch McConnell, echo Trump’s rhetoric, thereby creating a situation where one of the country’s two major political parties is questioning the electoral system? And second, do GOP elected officials start acting on this rhetoric, such as trying to roll back existing vote-by-mail programs or not counting ballots received after Election Day in states where it is legal to count them?
In other words, this kind of rhetoric presents two potential risks, undermining the public’s confidence in the legitimacy of the election and — if the rhetoric leads to action — literally compromising the legitimacy of the election.
5. Fundamental changes to the electoral process
Speaking of actually compromising the election … The recent changes at the U.S. Postal Service that are slowing down mail delivery across the country are arguably the biggest threat to the American election system in 2020. If mail delivery continues to be slowed down, that creates two very important potential problems. First, in states where ballots must be received by officials before Election Day (33, according to the National Conference of State Legislatures), a slowed-down mail system could disenfranchise thousands and perhaps even millions of people. Secondly, a slower system creates the potential for a ton of ballots to arrive either just before, on or after Election Day, meaning that the counting of votes might stretch on for days or weeks and Americans wouldn’t know the winner of the presidential election for a long time. That’s not ideal in any circumstances, but particularly with a president like Trump who can’t be expected to wait for election results before trying to declare himself the winner.
Postmaster General Louis DeJoy, a longtime GOP donor who has given more than $2 million over the last few years to Trump’s campaign and other Republican causes, says the changes he has made since taking his post in June are intended to reduce the USPS’s spending and make it more cost-efficient. I don’t have any proof he is lying, but it’s also doubtful that DeJoy would be candid about it if his real goal was complicating vote-by-mail systems and helping Trump win. Either way, it’s a strange decision to overhaul the mailing system in a way that appears to be making it harder to send things through USPS quickly when the U.S. will be relying on the Postal Service more than ever before as part of the electoral process.
And if Trump followed through on changing the day of the election (which he cannot do on his own) or limiting vote by mail, those changes would go into this category as well.
It’s worth thinking about these categories both in terms of the horse race and in terms of broader questions of democratic norms and values. The first three are problematic in terms of democratic norms and values because Republicans seem to be intentionally making it harder for people to vote. And if this race gets tighter, those moves could prove decisive. If we reach the later stages of the campaign and polls still show Biden with a clear lead nationally and in most swing states, it’s less likely that these tactics would literally swing the election. (Then again, we haven’t really faced a situation like this before.)
On the other hand, the last two categories are huge, both in terms of democratic values and electoral repercussions. If people’s mail-in ballots aren’t received until way after Election Day, and Trump and his allies are falsely suggesting that mail-in ballots are somewhat fraudulent anyway, that undermines the election results and creates the potential for Trump to try to remain in office even if Biden is the rightful victor.