The Count #11: The Gaslighting of The American Voter

Today, we’ll look at:

• How Trump is using lawfare and Republican judges to subvert democracy.
• The complex voting systems that are gaslighting the American voter.

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THE DAILY COUNTDOWN

• 11 days until election day. 
• 46 days until the deadline for all ballots to be counted. 
• 52 days until Electoral College slates send their votes to Congress. 
• 75 days until Congress counts Electoral College votes.
• 89 days until inauguration day.

NEW POLL: HOW TRUMP IS USING LAWFARE TO SUBVERT DEMOCRACY

On Monday, all eyes will be on Capitol Hill as Senate Republicans seek to confirm Judge Amy Coney Barrett to the nation’s highest court. If she’s confirmed, President Donald Trump will become the first president since Ronald Reagan to appoint three justices to the Supreme Court.

But SCOTUS isn’t Trump’s only judicial legacy. Trump’s fingerprints can be found on courts across the country, having appointed more than 200 federal judges. One in four circuit judges is a Trump appointee. (Two-thirds of Trump’s appointees have been white men, and none of the appellate court appointees are Black.)

This has had a dramatic effect on voting-related lawsuits.

Take Back the Court, a group that supports expanding the judiciary, recently released a scorecard that found Republican-appointed federal and Supreme Court judges and justices this year have made three times as many rulings that make it harder to vote as Democratic appointees. When it came to voting cases, Trump judges had anti-democratic rulings 86% of the time.

Leah Litman, a professor of constitutional law at the University of Michigan, co-host of the podcast Strict Scrutiny, recently wrote in The Atlantic that “Republican litigants seek to limit the franchise, and Republican-appointed judges often allow them to do so.”

“There has been a very significant number of federal voting rights victories across the country and those have in the last week or two—many if not most—been stayed by appellate courts,” Wendy R. Weiser, the director of the Democracy Program at the Brennan Center for Justice, recently said.

This pattern could be seen just yesterday when a federal appeals court overturned the ruling from a federal district judge who had allowed hiring of transportation for voters. And it’s a pattern the Trump campaign is relying on. Later in the day, it asked the Supreme Court to reverse a North Carolina decision to allow mail-in ballots to be accepted after election day.

Yesterday on The Count, Litman pointed to SCOTUS’ split decision this week on whether to count mail-in ballots that arrive after election day in Pennsylvania as a deeply troubling sign of what could happen if the Trump campaign fights mail-in ballot results all the way to the Supreme Court.

“It’s very possible that we right now have four justices on the Supreme Court who are sympathetic to the idea that federal law requires there to be a singular Election Day such that any votes tabulated or received after election day are somehow uniquely or presumptively problematic.” — Litman

This is a recurring theme, Litman says. From the Affordable Care Act, to Roe v. Wade, to efforts to restrict voting, Republicans keep turning to the courts “because they lack the democratic mandate to pursue their agendas in the political process.”

THE GASLIGHTING OF THE AMERICAN VOTER

Casting your ballot for an election outside the United States might seem unrecognizable to most Americans. Voting often takes place on weekends or holidays, polling places abound, lines are non-existent, and in some countries you can even do it all online.

We’re used to seeing long lines at the polls—especially in urban and diverse areas—but it shouldn’t be that way. A 2014 presidential commission found that if an American voter has to wait in line for more than 30 minutes it is “an indication that something is amiss and that corrective measures should be deployed.”

“Most Americans are being gaslit into thinking that a wildly unpleasant hazard filled voting experience is somehow normal or necessary, or the only possible option.” –The Count co-host Emily Galvin-Almanza

Financial constraints are one major reason for how complicated, confusing, and dysfunctional voting in America has become. But in many cases, the dysfunction is also “by design.” Here’s a sampling of some of these efforts:

• SHOP IS CLOSED — There are nearly 21,000 fewer polling places to vote this election day compared to 2016. A VICE investigation found the Justice Department even used the Americans With Disabilities Act to close almost two dozen places, rather than settling for ADA compliance. Fewer polling places is an especially big problem in states without widely available vote-by-mail, including Texas (which closed 1 in 16 polling places since 2016), Mississippi (1 in 10) and Indiana (nearly 1 in 5).

• SHOW ME THE MONEY — Every four years America runs the most-watched election in the world, yet, according to the National Conference of State Legislatures, “No one knows how much it costs to run elections in the United States. For that matter, it’s a rare state that knows how much election administration costs within its own borders.” We do know the federal government provided election funding just once in the 16 years before 2018. And the presidential commission described election needs as “often the last to receive attention from state and local budgetary authorities.” Municipalities and states have even had to turn to private funding.

• LOWER TURNOUT TUESDAY — Holding election day on a Tuesday makes it extremely hard for 9-to-5 workers to vote, particularly if they live in a district with lines that stretch for hours. In 2016, nearly 15% of nonvoters said they were too busy or had a conflicting schedule. The Weekend Voting Act was introduced in 2017, but none of the 102 cosponsors in Congress were Republicans, essentially blocking its passage, and keeping turnout lower.

• HAVE YOU TRIED RESTARTING? — Voting machines across the country are prone to crashing and failing. In 2018, 41 states used equipment that was at least 10 years old. When early voting began in Texas, machines at all 30 sites in one county didn’t work for hours. But splashing cash on new machines and technology doesn’t mean it will be faultless if you don’t test and train adequately, as the Iowa caucuses showed.

• AFFIX STAMP HERE — On the other end of the spectrum, only 17 states supply prepaid returns for mail-in ballots, most try to pass the expense onto voters, including several Pennsylvania counties. In Texas’ Harris County it costs  $1.10 to mail a ballot. The hassle of buying stamps that correctly cover the weight and dimensions of your county’s ballot envelope could be enough to demotivate some voters, and advocates say amounts to a poll tax. 

• RECORD SCRATCH — Decentralized and disorganized records also make it hard for individuals to vote. In Florida, the Republican legislature introduced what is effectively a poll tax on individuals formerly convicted of a felony, requiring them to first pay fines and fees. But there is no centralized way to find out how much, if anything, you owe.

• JUST PLAIN OLD UGLY — Bad ballot design can confuse voters, extend voting (and thus waiting) times, and cause “tens of thousands” of lost votes each election. Palm Beach County’s infamous “butterfly ballot” may have cost Al Gore the election in 2000.  

The failure to invest in essential election infrastructure is the burden of both parties, but moves that limit access to voting tend to benefit Republicans and is part of their electoral strategy. 

Earlier this year, Senate Republicans passed a stimulus bill that didn’t include any election funding—despite the glaring need to adapt voting to the pandemic. And with a president who refuses to unilaterally accept next month’s election results, voting chaos  will only further benefit Trump and his allies.

As The Count co-host Alana Sivin said, “[this] ends up just playing into the GOP and Trump’s motives to sow confusion upon the whole election process. Because when there are lots of ballots that are not counted because of technical difficulties and that sort of thing that sort of makes Trump say, ‘Oh, you can’t trust any of this. You just can’t trust it.’”

Who does Trump want you to trust instead? Trump.

WHAT WE ARE TRACKING

• The Trump campaign has been warned about voter intimidation by Pennsylvania’s attorney general after a representative videotaped voters depositing ballots at drop boxes in Philadelphia.

• But Pennsylvania’s no-excuse mail-in ballots are helping wealthier voters far more than those living in low-income neighborhoods. Nearly 50% of voters in the wealthiest Philadelphia ZIP codes requested ballots, compared to just 27% in the lowest-income communities.

• Iowa’s election officials will no longer be allowed to use voter registration information to fix missing information on mail-in ballot applications like in previous elections, after the state Supreme Court upheld a law passed by the Republican-controlled legislature.

• A Florida county will place sheriff’s deputies at five early voting sites after two armed men who appeared dressed as security guards were seen at a polling station.

• Drive-thru voting can continue in Harris County, Texas after the state Supreme Court rejected a request by the GOP to stop the practice, which could have invalidated 70,000 ballots already cast.

• A body of Seattle labor groups, that represent 100,000 members, say they will strike if Trump does not accept the results of the election and thus threatens the nation’s democracy.

• Russia may exploit the likely scenario that the election is too close to call on Nov. 3. “Russian groups could use their knowledge of local computer systems to deface websites, release nonpublic information or take similar steps that could sow chaos and doubts about the integrity of the results.”