Inside Job

by Steven Rosenfeld

  Just days before Congress was to convene, emergency petitions were filed at the Supreme Court. Jerroll M. Sanders, a Missouri activist, argued the election should be voided because federal officeholders were elected by a foreign power—Russia. That went nowhere. In the meantime, as a handful of House Democrats said they would contest the ratification, Ryan Clayton, with the group Americans Take Action, released a thousand-page report from a team of lawyers and law students that claimed fifty Republican members of the Electoral College were illegally seated.259

  This should have been a bombshell. The “Electoral Vote Objection Package” said sixteen GOP electors lived outside of the congressional districts they purportedly represented, and thirty-four more Republican electors were dual officeholders in states that barred elected officials from holding more than one office. Being an Electoral College member, however brief the term, was an elected office. “Ironically, Florida Attorney General Pam Bondi, who has issued a number of Advisory Legal Opinions on dual-officeholding, was a presidential elector,” their executive summary said. “Joe Negron, who also cast an electoral vote, is currently President of the Florida Senate.”

  The findings by Clayton’s team were a stunning final example of a party that is willing to ignore or revise the rules of voting in an endless pursuit of power. When a few progressive House members rose to challenge the Electoral College certification, they barely got to say more than a sound bite beyond the formalities. (Had their challenge succeeded, the selection of the president would have gone to the House. It didn’t get that far.)

  With Vice President Joe Biden presiding, Massachusetts Rep. James McGovern rose. “I object to the certificate from the state of Alabama on the grounds that the electoral votes were not under all of the known circumstances regularly given and the electors were not lawfully certified, especially given the confirmed and illegal activities engaged in by the Government of Russia that were designed to interfere with our election and widespread violations of the Voting Rights Act that unlawfully suppressed thousands of votes in the state of Alabama.”

  “Is the objection in writing and signed not only by a Member of the House but also by a Senator?” Biden replied.

  “The objection is in writing and is signed by a Member of the House of Representatives but not yet by a Member of the United States Senate,” McGovern countered.

  “In that case, the objection cannot be entertained,” Biden said.260

  And so it went. Maryland’s Jamie Raskin, Washington’s Pramila Jayapal, California’s Barbara Lee, and Texas’ Shiela Jackson Lee all rose to file objections and were gaveled down. California’s Maxine Waters rose, saying, “I wish to ask: is there one United States Senator who will join me in this letter of objection?”

  None replied.

  The certification continued with one more attempted objection by Arizona’s Raoul Grijalva.

  But Biden cut him off, saying, “There is no debate in the joint session … Is there a signature from a Senator?” He replied no, prompting Jackson Lee to rise again, saying she objected to North Carolina’s certification, “because of the massive voter suppression and the closing of voting, massive suppression that occurred from African-American—” Tersely, Biden gaveled her down. “The tellers will continue the count.”

  In her extension of remarks that were added to the Congressional Record, Jackson Lee recounted the election’s arc. Historians will “surely record that the 2016 campaign was one for the ages,” she wrote. Clinton was widely considered “the most qualified person ever nominated for the office.” Trump “is the first person to gain an Electoral College majority with no experience whatsoever in elective or appointive governmental office or public service.” It was the “first time in history that a Director of the Federal Bureau of Investigation had ever injected himself and his agency” into the race. It was “the first American presidential election that the Intelligence Community has confirmed was the subject of cyberattacks and other subversive activities of entities allied with the Government of Russia.” She tried to strike a bright note, saying, “Hillary Clinton received more votes for president than any person in history not named Barack Obama, which means the two greatest vote getters in American political history are an African-American male and white female, which is a testament to how far America has traveled on the path to equality.”261

  But then Jackson Lee returned to brass tacks. “A switch of less than eighty thousand votes in just three states—Pennsylvania, Michigan, and Wisconsin—would have secured an Electoral College majority for Hillary Clinton,” she said, but “that fact is of little consolation and practical consequence to the situation and task now before us.” She ended, “There is compelling evidence that activities engaged in by state officials violated the Voting Rights Act of 1965 and disenfranchised thousands of voters and resulted in the unlawful certification of electors … The fate of our democracy is at stake.”

  Brave words, but not one senator would sign her letters of objection to voting in North Carolina, Pennsylvania, and Wisconsin. Democracy Spring activists shouted protests from the gallery and were arrested. The presidential election was officially over. The following week, Bret Sablosky, a paralegal who moved to Washington to block Trump, filed a federal court motion to postpone the inauguration. “The popular vote plurality is the only Constitutional method of electing the President and Vice President,” he argued, saying the Electoral College was an unconstitutional under slavery-ending amendments.

  His lawsuit was dismissed.

  AFTERWORD

  AS I WRITE ALMOST A YEAR into Trump’s presidency, the voting rights pendulum is heading back to the dark side. The forces in American politics that want to stop all eligible citizens from voting are newly empowered. States with supermajority red legislatures are not just trying to suppress Democratic voters, but preempting the very issues that blue voters and municipalities can vote on.262 These threats to American democracy and representative government pose profound questions that transcend not only the future of the parties, but what it means to be citizens now and in the future.

  The Republican war on voting has continued, taking its cues from President Trump. Even before his swearing in, he told congressional leaders that between three and five million illegal votes were cast for Clinton to deny him a popular vote majority.263 Never mind that the AP found Gregg Phillips, the source for Trump’s false claim, “was registered to vote in multiple states in the 2016 election.”264 That underscores, yet again, that all the GOP noise about policing the vote is as hypocritical as it is fake. The press may expose Trump’s tweets as lies, but that has not stopped top White House aides from repeating them.

  National Policy Director Stephen Miller echoed Trump by telling a national TV audience that he only lost New Hampshire because illegal voters were bused in from Massachusetts. Rep. Steve, R-Iowa, told another national audience it was plausible. Bill Gardner, who has been New Hampshire’s secretary of state since 1976, said there was no proof. Tom Rath, the state’s former attorney general and a Republican said that it was “shameful to spread these fantasies.”265 Even Trump’s first campaign manager, Corey Lewandoski, who lives near the border, said he didn’t see any buses.266

  But that propaganda circus is typical of Trump and obscures more serious GOP actions. As Washington Post political reporter Dan Balz noted about Trump’s presidential-size illegal voter claim, “There is no benign explanation … It is either a deliberate attempt to undermine faith in the democratic process, an exhortation to those who favor new restrictions on access to the ballot box, or the worrisome trait of someone with immense power willing to make wild statements without any credible evidence.”267

  All of the above are true. But what has emerged since Trump took office is especially Balz’s second prospect, which does not bode well for American democracy. The larger stakes are what is happening under this administration to further unwind representative government.

  Trump has empowered vote suppressors to transform t
he Department of Justice, whose Civil Rights Division just celebrated its sixtieth anniversary. The Attorney General, Jeff Sessions, began his career prosecuting one of Dr. Martin Luther King’s associates for voter fraud.268 By late February, the Department said it would not pursue its lawsuit against Texas’s voter ID law, which it had been fighting for the past several years.269 As a Huffington Post headline succinctly observed, “Obama’s DOJ Fought Texas Voter ID Law. Trump’s New Civil Rights Chief Offered Tips On Writing It.”270

  The voter suppressors were just getting going. At the end of March, two dozen conservative activists and lawyers, including men who oversaw the DOJ’s voter fraud investigations during George W. Bush’s administration, wrote an unsolicited letter271 to Sessions. They presented a classic white supremacist agenda: back off laws protective of minority voters and start pressuring states to aggressively purge their voter lists.

  “We have witnessed longstanding conventions held from the mid-20th century prove outmoded in recent years and discovered new fronts in need of protection where civil rights are concerned—with particular respect to voting,” said the letter signed by Kansas Secretary of State Kris Kobach, The Heritage Foundation’s Hans von Spakovsky, and the Public Interest Legal Foundation’s J. Christian Adams, among others.272

  In early May, Trump appointed these three men to a Presidential Advisory Commission on Election Integrity, where Kobach is vice-chair. (Vice President Mike Pence is the titular chair.)273 While their initial meetings were held in secret, the March letter to Sessions laid out their agenda. They seek a “return to race-neutral Voting Rights Act enforcement,” “an end to politically driven pursuits against state photo voter identification requirements, citizenship verification in voter registration, and common-sense adjustments to early voting periods,” and “return to enforcing Section 8” of the NVRA, which governs voter purges. They ended, “The American electorate is crying out to see protections against political enforcement of the law.”274

  These missives and presidential missions are the opening moves in the next round of an ugly fight over who gets to vote in America and how arduous that process will be. This especially is the case in states that have been most heavily gerrymandered and are key to control of the House (and include presidential swing states). These are states like Michigan, Wisconsin, Pennsylvania, North Carolina, Ohio, Virginia, Florida, Georgia, and Texas.

  One of Kobach’s first tactics has been to demand all fifty states turn over their voter files, including lists of inactive voters and confidential data like Social Security numbers.275 While progressives, Democrats, civil rights groups, and others have loudly protested and sought to defy Kobach’s commission, some election experts who have watched him for years believe that this data grab is a giant bait and switch. (Kobach has not said why the commission is seeking the statewide voter data or what it will do with it.)

  Kobach knows most states can’t meet his deadline even if they wanted to, Michael McDonald, a University of Florida associate professor specializing in American elections, tweeted after Kobach’s letter became public.276 That’s because, among other things, many states are not authorized by legislatures to share everything he wants. Knowing that is likely to be the case positions him and Trump to say that states are hiding evidence of voter fraud. That’s exactly what Trump tweeted on July 1, “Numerous states are refusing to give information to the very distinguished VOTER FRAUD PANEL. What are they trying to hide?”277

  By late July, seven lawsuits had been filed against the commission. Dozens of states were saying they would only partly comply and some top state election officials openly said they didn’t trust Kobach. At the panel’s first public meeting, Trump stopped by and said, “one has to wonder what they are worried about,” referring to recalcitrant states. And then the panel’s discussion, chaired by Kobach and dominated by von Spakovsky, suggested using known problematic government databases to vet (and erroneously reject) voter applications.278

  Those records included the US Department of Homeland Security’s incomplete citizenship database—which Florida Republicans previously sought to use. Von Spakovsky also wanted jury duty records, to see if people who said they were noncitizens to avoid jury duty were registered voters. He also wanted state tax records to see if someone had registered to vote at a business address instead of a home address. The panel also wanted a list of elections from across the country where the winner was decided by single-digit margins.279

  These demands, especially from von Spakovsky, did not surprise election lawyers who favor expanding the franchise. Von Spakovsky’s role during the Bush administration of undermining the Justice Department’s pro-voting rights mission was widely documented, starting with his false and outsized claims about voter fraud. As Rick Hasen, an election law expert at the University of California at Irvine blogged in late June 2017, “The appointment is a big middle finger from the president to those who are serious about fixing problems with our elections.”280

  All of this points to fabricating a pretext for newly restrictive federal anti-voter legislation—or red states with super majorities to further complicate the process of voting. Recall there is no nationwide federal database for voter fraud, or for citizenship—a useful absence that allows Republicans to say the process must be better policed; and then using imprecise methodologies that disproportionately target blue voting blocs.

  More potentially insidious, on the same day that Kobach sent his letter seeking state voter files and related data, the DOJ’s Voting Section also sent the same states a demand letter on a parallel fishing expedition. It asked all the states to provide everything they use—“all statutes, regulations, written guidance, internal policies, or database use manuals that set out the procedures”—relating to the “list maintenance provisions” of the National Voter Registration Act (NVRA) and Help America Vote Act (HAVA).281 Their letter said nothing about expanding registration, only about removing previously registered voters who may have moved, died, been convicted of a felony, or were on inactive voter lists. It doesn’t take much to see where this is going. Trump’s commission and DOJ’s Voting Section are following the template laid out in the late March 2017 letter from longtime GOP vote suppressors, including those who led the Bush administration’s voter fraud inquests.282

  What may happen is that Kobach and company will hold off issuing any report until 2018, at the earliest. That’s because the Supreme Court’s fall 2017 term contains two big voting cases, where its right-wing majority might issue rulings enshrining key pieces of the GOP’s anti-voter playbook. (Early in 2018 is also when state legislatures reconvene, and where red states could fast-track any recommendations before the 2018 elections.)

  The first case coming before the Court, from Ohio, concerns how soon infrequent voters can be purged under the NVRA.283 The law has an ambiguity that Republicans identified and are trying to exploit. It lays out a four-year timetable for voter purges, but also says that no one can be removed for being an infrequent voter, an apparent contradiction. Georgia’s GOP Secretary of State Brain Kemp, now running for governor—like Kansas’ Kobach—filed a brief on behalf of a dozen red states urging the court take the case. In August 2017, Trump’s Justice Department filed a brief supporting Ohio’s GOP-led purge, reversing the DOJ’s stance taken during the Obama administration.284

  The second case is from Wisconsin on whether extreme partisan redistricting is legal.285 More than a decade ago, Justice Anthony Kennedy wrote an opinion suggesting the Court would like to see a standard for assessing when partisan gerrymanders are so extreme they become unconstitutionally antidemocratic. Law professors have created a metric based on “wasted votes” using Wisconsin as an example. But in the Supreme Court’s late May ruling about illegal racial gerrymandering in North Carolina, Kennedy signed a dissent suggesting he may have changed his mind about extreme redistricting. The dissenters said such hyper-partisanship was distasteful but part of human nature and the political process. The ruling in these cases
will determine the electoral playing field for years to come.

  Meanwhile, despite populist expectations among Democrats that they can retake the House in 2018, there are other signs the national landscape is tightening in antidemocratic ways. Looking at 2016’s results, REDMAP states continued to see red supermajorities elected to their House delegations and state legislatures. Extreme redistricting is to blame for the noncompetitive races that produced the political landscapes in these states and Congress, Daley reiterated in a post-2016 epilogue to his book, Ratf**ked.286 After the 2016 election, the GOP held sixty-nine of the niety-nine state legislative chambers. There is little reason to think Republican supermajority states will see Democratic takeovers in 2018 or 2020—the year before their legislatures draw political maps lasting for the 2020s, he said. That likelihood makes 2018’s governor races in states where Republican incumbents face term limits—such as Florida, Michigan, Ohio, and Georgia—the most important races if the GOP’s lock is to be broken. Only Democratic governors can veto the bad maps that likely will be drawn in 2021.

  Meanwhile, when it comes to retaking the US House, 2016’s results showed the 2011 gerrymander continues to hold. Even though Republican candidates received 1.2 percent more votes nationwide, they ended up with 10.8 percent more seats. What most Democrats don’t grasp looking at 2018 is how steep the climb back into power is. As Daley said in July 2017, Democrats have only flipped one seat from red to blue in five key states since 2011’s maps—in Michigan, Ohio, Pennsylvania, Wisconsin, and Virginia. That seat was in Virginia, after a court ruled it had been an illegal race-based gerrymander. When Democrats say they are looking at taking the twenty-three GOP seats in House districts where Clinton defeated Trump—they need twenty-four to regain a majority—Daley countered that’s not a reassuring strategy. They need to compete in fifty competitive races, he said, and he doesn’t see that taking shape.287