Update 484 • Democracy Survives Debate
Just Voting, Counting, and Litigating Left
Last night, President Trump and Vice President Biden faced off for the final time. Polls showed Biden winning by 53-39, a margin closely tracking his lead in election polls. But if the debate is viewed as a draw for Biden, then Trump, out of debates and out of the money (down to $63 million cash on hand to Biden’s $177 million), is left running out of time.
Democracy holds its breath meanwhile. Every day that passes without event brings us closer to a sense that norms may survive long enough to take up reforms to fix the many vulnerabilities that threaten the integrity of our electoral process. Below, we examine the state of the ongoing election, consider the role of the courts, and outline the reform plans offered by Congress in HR 1, and Vice President Joe Biden.
Good weekends, all….
Robust Early Vote Despite Suppression
Early-voting counts suggest that the 2020 electoral cycle is likely to see record levels of participation. Already, 52 million Americans have cast their ballots. This year’s early vote totals have already matched 2016’s early vote numbers and are equal to about 35 percent of the total 2016 turnout. In several battleground states, early vote totals have already set records due to voter enthusiasm and long overdue reforms making it easier to vote early and/or by mail.
Total Early Votes Cast Compared to 2016
Source: Washington Post
While a handful of states have conducted their elections by mail for decades (with virtually no incidence of fraud), others, such as New York and New Hampshire, are only now allowing voters to cast mail ballots. Several states critical to Vice President Biden’s election chances — including Wisconsin, Minnesota, and Arizona — have expanded mail-in voting and/or begun mailing applications to voters. A record 84 percent of Americans have the option of voting by mail in this election.
But there are still hurdles to overcome. Throughout COVID relief negotiations, Senate Republicans have refused to consider the Democrats’ $3.6 billion offer for state election administrations. Without these funds, many already-underfunded election offices will struggle to keep up with historic levels of absentee ballots.
Many states have expanded no-excuse absentee and early voting and have lengthened the amount of time after the election for ballots to be counted. Others have gone in a different direction. In Texas, Republican Governor Greg Abbott deployed the tired GOP trope of “enhancing ballot security” to unilaterally limit the number of ballot drop-off locations to one per county, bearing directly on the Democratic strongholds of Harris, Travis, and El Paso counties (home to the cities of Houston, Austin, and El Paso, respectively). And in Georgia — in many ways the poster child for modern voter suppression — early voters in predominantly Black areas of metro Atlanta have waited in line for 12 hours due to polling station closures.
Navigating a Red Wave (of Litigation)
As we wrote last week, the GOP’s strategy to steal this election is clear: if mail-in ballots begin pushing the margins increasingly towards Biden, President Trump and Republicans will turn to the courts in a last ditch attempt to have millions of legally cast ballots disqualified. Democrats have ongoing court cases in 14 states, and this number is likely to increase in the coming weeks and months.
Democrats have already won some important legal victories. On Monday, the Supreme Court refused the Pennsylvania GOP’s request for stay regarding the commonwealth’s recent Supreme Court decision, which gave voters three additional days to return ballots. On Tuesday, the Fourth Circuit voted 12-3 — a majority which included all three Trump-appointed judges on the bench — to deny the GOP an emergency stay to block a North Carolina rule allowing absentee ballots to be counted up to nine days after Election Day.
But in Texas, a federal appellate court ruled that election officials do not have to notify voters that a mail ballot has been rejected because of a signature mismatch until 10 days after the election. This has disproportionate impact on women and minority voters, whose ballots are rejected due to signature mismatches at substantially higher rates.
The concerns over voter protections do not stop at the state or appellate court level. The imminent confirmation of Amy Coney Barrett to the Supreme Court will tilt the balance of the court unshakably to the right. Barrett’s views on voting rights are particularly disquieting, as we discussed last week. In her lone dissenting opinion in Kanter v. Barr (2019), Barrett stated that the right to vote is not an “individual” right and is reserved only for “virtuous citizens,” a claim with no Constitutional or precedential basis and which openly violates the 14th Amendment.
Congress and the Biden Democracy Agenda
Democrats have long pushed for major democratic reforms. As we’ve written previously, H.R. 1, the For the People Act, would be the most comprehensive set of democratic reforms since Watergate. It’s universally lauded among the Democratic caucus, with support from even the more moderate members like Sen. Manchin.
Earlier this year, Vice President Biden said that a first priority would be enacting a series of reforms like those in H.R. 1. Should he win the presidential election, Biden would also pursue reforms related to executive branch independence, ethics rules, and conflicts of interest.
One of Biden’s planks works in tandem with H.R. 1:
- Reform and rebalance campaign finance laws: Like H.R. 1, Biden’s plan would make it easier for candidates of all backgrounds to run for office by establishing a small-donor, citizen-funded matching program. To further counter the destruction wrought by Citizens United, Biden would also pursue a Constitutional Amendment to eliminate private dollars from federal elections, ensure SuperPACs are truly independent from campaigns and political parties, and increase transparency surrounding political donations to election spending.
While the others go beyond:
- Return Integrity to Executive Branch Agencies: President Trump has weaponized executive agencies, particularly the Department of Justice, for political and personal gain. To counteract Trump’s undermining of executive agency authority and independence, Biden would prevent the president and White House from interfering with federal investigations and prosecutions, strengthen whistleblower protections, and empower agency watchdogs.
- Strengthen Ethics Requirements: Biden would establish a new Commission on Federal Ethics tasked with enforcing federal ethics laws and making such information readily available to the public. Biden would also require all candidates running for federal office to release ten years of tax returns.
- Rein in Executive Branch Financial Conflicts of Interest: President Jimmy Carter sold his peanut farm to ensure he had no conflicts of interest before taking office, but Trump has destroyed this important norm, refusing to divest from his businesses. Biden will mitigate conflicts of interest by requiring himself and his Cabinet members to hold only Treasury bonds, annuities, mutual funds, and private residential real estate, as Biden did when he was Vice President. Biden would also work to extend this standard to members of Congress and to close disclosure loopholes.
The 2020 election has started earlier and will end later than in years past. Enthusiasm is as high as it’s ever been, with turnout showing signs of following suit. Despite GOP-enacted hurdles in places like Texas, Georgia, and North Carolina, early vote totals are encouraging. Democrats know that just winning the election is not the end goal. But more blue seats, new majorities, and a new administration mean more opportunities to clean the spray tan residue off of the Resolute Desk, debate and enact long overdue reforms, and fend off the inevitable Republican obstruction tactics.