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‘Would Reek of Jim Crow’: Experts Fear Trump Could Send Federal Officials to Deter Mail-In Voting

Law & Crime logo Law & Crime 8/8/2020 Colin Kalmbacher
Donald Trump wearing a suit and tie: WASHINGTON, DC - JULY 30: U.S. President Donald Trump speaks during a news conference in the James Brady Briefing Room of the White House July 30, 2020 in Washington, DC. Earlier in the day Trump suggested in a tweet that November‚Äôs general election should be postponed, citing his unsubstantiated assertions of widespread mail-in voter fraud amid the coronavirus pandemic. © Provided by Law & Crime WASHINGTON, DC - JULY 30: U.S. President Donald Trump speaks during a news conference in the James Brady Briefing Room of the White House July 30, 2020 in Washington, DC. Earlier in the day Trump suggested in a tweet that November‚Äôs general election should be postponed, citing his unsubstantiated assertions of widespread mail-in voter fraud amid the coronavirus pandemic.

Could President Donald Trump send in federal officials to oversee the 2020 elections? A new report suggests the 45th president might attempt to do exactly that–under the guise of protecting the vote.

The sure-fire way to ignite a storm of controversy was recently discussed against the backdrop of Trump’s so-called “Friday Night Massacre” against the U.S. Postal Service (USPS) and lingering efforts by Republicans to de-legitimize vote-by-mail in most states.

Various efforts are said to be underway in order to diminish the postal vote’s impact on the 2020 general election–including an emergency declaration for USPS to stop delivering certain ballots.

Per Anita Kumar in Politico:

Election experts said a more likely option for Trump would be sending federal officials into states under the guise of ensuring every vote is counted, citing the 15th Amendment or the Voting Rights Act.

Legal experts rubbished the idea as unfit for human consumption.

“Any effort to dispatch federal officials to ‘monitor’ the local administration of the election in this current political environment would result in immediate political and legal backlash,” predicted national security attorney Bradley P. Moss via email. “It would reek of Jim Crow-era efforts to suppress the vote.”

James A. Gardner is an election law expert who teaches both law and political science at Buffalo University School of Law.

In an email, he elaborated on the difficulties that Trump would face in attempting to use federal agents in such a manner.

“The 15th Amendment is a grant of power to Congress, not to the president,” Gardner told Law&Crime. “He has no power to do anything under that amendment other than enforce laws that Congress has made. The Voting Rights Act would be a poor vehicle for the president, since it authorizes only the protection of the right to vote of racial and linguistic minorities, exactly the groups Republicans are actively trying to suppress.”

Gardner also noted that Trump’s Department of Justice has been relatively unconcerned with enforcing the Voting Rights Act (VRA) prior to now–seeing as they haven’t initiated a single new case since taking office. 

It is worth noting, however, that the Trump administration did attempt to argue that the rationale behind the now-defunct citizenship question on the 2020 Census was to enforce the Voting Rights Act. The Supreme Court rejected the administration’s efforts to add a citizenship question on the grounds that the stated rationale was “arbitrary and capricious.”

A “sudden discovery” about voter suppression for groups often-maligned by the GOP would be “deficient in credibility,” Gardner added.

Gardner also said that while the use of force to steal elections had “gone out of favor,” there wasn’t particularly any reason to be optimistic that Trump wouldn’t try it as a last-ditch effort.

“Rigging of the rules is the preferred method – the method that the Republican Party has been actively invested in for a decade or more – but I suppose if that isn’t working, Trump might go back to the prior authoritarian’s playbook and just send in occupying troops,” he concluded. “He does seem to have a fondness for Old School methods.”

Twitter was also humming with disdain for the suggestion that Trump might employ federal shock troops in order to influence an election he appears to be losing.

“You say POTUS is sending in federal officials to deter mail in voting in order to….enforce the voting rights act?!?!?” University of Michigan Law Professor Leah Litman mordantly weighed in. “WHY I NEVER!”

Litman has previously written about the threat posed to voting during the novel Coronavirus (COVID-19) pandemic viz. a recent Supreme Court ruling that limited the Wisconsin public’s ability to use and rely on mail-in ballots. That widely criticized decision was decided by the GOP-appointed wing of the nation’s high court against a hard-charging dissent authored by liberal Justice Ruth Bader Ginsburg.

“As an added bonus, they’ll enforce the 15th Amendment by keeping people from voting,” added Civil Rights attorney Sasha Samberg-Champion in a similarly sarcastic estimation of the potential policy.

Samberg-Champion later expressed some doubt as to Trump’s actual ability to perform such a task.

“I have no idea how Trump would actually carry out a vote-counting-obstruction in this manner,” he told Law&Crime. “The Civil Rights Division used to have a fairly robust vote-monitoring regime for jurisdictions covered by the preclearance requirement. Ironically, Shelby County wiped out a lot of its authority to do this.”

The reference to the Shelby County v. Holder Supreme Court case is salient. It was the landmark decision authored by Chief Justice John Roberts that eviscerated the VRA by tearing up decades-old regulations that forced former Jim Crow states to submit potential changes to their voting plans to the federal government in order to make sure they were compliant and not enacted so as to depress the vote or otherwise disenfranchise racial minorities.

Samberg-Champion went on:

One thing to note about this scheme is that, for obvious reasons, it doesn’t empower federal political appointees themselves to carry this out. Rather, the feds get non-political people (sometimes career government employees) who are specifically hired by OPM to do it. So you’d really have to break and distort the existing vote-protection infrastructure to have it function as an arm of the Trump campaign.
All of this is to say that I doubt this amounts to anything more than idle musings. But if it amounts to more than that, it would be terrifying indeed.

While still somewhat anticipatory, Trump’s animus toward mail-in voting is real and shared by many in his own party. The president has also been more than willing to skirt the rules with little in the way of consequence in the past–so the potential for abuse here is viewed as real and even probable.

In late March, Trump warned that “you’d never have a Republican elected in this country again” if the country switched to a national vote-by-mail system–which was interpreted as an acknowledgment that Democrats tend to win elections when voter turnout is high. Studies have shown that states who move to vote-by-mail systems experience significant and lasting increases in turnout. But evidence is mixed that Democrats are actually the sole beneficiaries; the reliably Republican state of Utah largely votes by mail.

[image via Alex Wong/Getty Images]

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