The View from Right Field

Supreme Court or Supreme Election Board?

Three weeks ago, I asked “Will Courts Be Changing Voting Rules Right Up to Election Day?”  Since then, some of the more extreme examples I mentioned in that post have been walked back.  On Monday night, the Supreme Court upheld, by a 5 to 3 vote, a decision by the Seventh Circuit Court of Appeals that overturned a federal district court decision in Wisconsin to extend the period for getting absentee ballots back to the election board until six days after Election Day.  (Wisconsin law provided that absentee ballots had to be received by Election Day.)   

What I wanted to talk about here are a couple of things Justice Elena Kagan said in her dissent in that decision.  Justice Kagan said: “As the COVID pandemic rages, the Court has failed to adequately protect the Nation's voters." and "[T]he Court's decision will disenfranchise large numbers of responsible voters in the midst of hazardous pandemic condition.”

Will Courts Be Changing Voting Rules Right Up to Election Day?

Last Friday, The Wall Street Journal had an editorial listing what I assume are just some of the lawsuits going on across the country to change voting rules for this November.  In some of these lawsuits, judges have extended the date by which ballots that are postmarked as of election day can arrive at the election authority and still be counted.  In others, courts have held that ballots received by some new court-set deadline are to be counted even if they don’t have a postmark.  The deadline for receiving ballots has been extended a few days in some states.  In Michigan, it has been extended until two weeks after the election. 

Which raises the question: Who is supposed to decide the rules for elections these days?  It used to be that legislatures would pass laws setting rules for voting; i.e., when ballots needed to be postmarked; when they had to be received; etc.  But things have changed.  Now it seems like courts are doing the deciding in a lot of states.  The question is: Why?

Vote By Mail Is Easy. Just Do It Early.

According to Democrats and some of the media, Donald Trump is going to use the Postal Service to mess up vote-by-mail this year.  In fact, last month the House Democrats tried to give the Postal Service $25 billion to make sure they had enough money for the election.  Of course, that was pretty much political optics, as opposed to really trying to help, and fix, the Postal Service.  But throwing money at the bureaucracy (or at least phony attempts to do so) is one way to make yourself feel good – and maybe look good.

But, in any case, if President Trump is trying to get the Postal Service to mess up voting by mail this year, it looks like he is about as good on that as he has been at lots of other things he does – or doesn’t do.  Just this past weekend I received this notice from the Postal Service giving me suggestions on getting my vote-by-mail ballot back in on time (and including a link to find out what the rules are in my state):

I’m Hoping for a Landslide Come November

I hope the election in November is a landslide.  In saying that, I’m not saying who I want to win (you can find that elsewhere).  I’m just saying I just hope it’s not close because I’m not sure we, as a nation, can handle another close election.

I am especially worried because the pandemic means voting is going to be very different this year.  There’s going to be a lot more vote-by-mail.  In person voting will probably be different, too (who knows how many polling places we’ll have open).  I’m afraid there will be a lot of confusion, among voters and among election workers.  Plus who knows if the election authorities are ready for an election as different as this one will be.

Where Did All This Partisanship Come From?

I will assume most people will not say that it started with Donald Trump.  He certainly is bad, partisanship-wise,¹ but it didn’t start with him.  Some people might go back to Joe McCarthy or Richard Nixon,² but I’m thinking of something more recent.  Republicans might point to Ted Kennedy’s attacks on Robert Bork in 1986, when President Reagan nominated him to the Supreme Court.³  Democrats might point to attacks on Bill and Hillary Clinton in the 1990s (the “vast right-wing conspiracy”).  And so on.  But I am going to suggest something else.

Sometimes it is hard to remember how you felt about a particular event at the time because things that happened afterwards color your recollection of how you felt then.  Even reading contemporaneous news articles about something in the past will sometimes surprise you because you know what has happened since and the article doesn’t. 

Now Is the Time to Get Ready for the Election in November

Last weekend The Wall Street Journal had an article by Nicholas Persily, “It’s Not Too Late to Save the 2020 Election,” on things we need to do to avoid (minimize-?) problems next November.  Professor Persily listed nine things:

1. Provide more federal funding and support.
2. Ensure that schools remain open as polling places.
3. Keep voters from having to wait in line.
4. Bolster confidence in voting by mail.
5. Encourage election and postal officials to coordinate their efforts as soon as possible.
6. Insist that the big tech companies do their part.
7. Deploy tools to help predict voter turnout.
8. Anticipate problems with disinformation and cybersecurity.
9. Refrain from declaring a winner on election night.

Here are the key things I got from the article, with an Illinois perspective.

George Marshall on Character

In a speech on “Marshall and His Generals” at the George Marshall Foundation on July 20, 2017, Dr. Stephen Taaffe talked about the four criteria that Army Chief of Staff General George Marshall used to pick the high-ranking officers¹ for the U.S. Army during World War II.²  Let me mention them, in reverse order:

1. General Marshall wanted to know them personally or know somebody who knew them personally.

2. Age.  (Sorry.  I realize it is politically incorrect today, but General Marshall didn’t want older generals.)

Three Cheers for Virginia: They’re Dumping Touch-Screen Voting Machines

Three cheers for Virginia because the Virginia Board of Elections has ordered that electronic, touch-screen voting machines cannot be used in the statewide elections coming up in November.¹  Earlier this year, in a demonstration at DEF CON in Las Vegas, a touch-screen voting machine previously used in Virginia was hacked in less than two hours.  Instead of touch-screen voting, Virginia will use paper ballots counted by scanning machines in November.

This seems so logical, even before the reports of Russian hacking attempts in last year’s election, that the decision is an obvious one.  Touch-screen electronic voting has no paper backup.  You touch the screen, your vote is counted, and poof, any evidence of how you voted disappears.²  There is no way to recount the votes.  There is no way to know for sure that when you touch Candidate A, your vote wasn’t counted for Candidate B.

Oops, I Was Wrong On That One – And Electing the President By Popular Vote

Back on November 6, I made this comment about the election:

"According to CNN, as of this morning, approximately 120,558,000 votes had been cast for either Obama or McCain. In 2004 Bush and Kerry got slightly over 121,068,000 votes between them. While there are more votes to be counted, and the final vote total in 2008 will probably be more than the 2004 total, it looks like the percentage of the total eligible voters who actually voted will be down.(See Update below.)
----------
Update (11/06/08 8:35 a.m.): Stories in the media have indicated that the turnout was the highest in generations.  Maybe the count is going more slowly than I would have thought.  We will see."

Well, I was wrong – because the counting was going more slowly than I thought. As of this morning, CNN shows 125,016,000 votes for President. That number of votes is 3.3% higher than 2004, and the total could wind up being about 4% more than 2004 by the time they are done counting. That is a sizable increase, though it is just a little bit more than the increase in the overall population of the United States from 2004 to 2008. The population of the U.S. as of July 1, 2004, was estimated to be 294,655,000. As of October 22, 2008, it was estimated to be 305,468,000. Lowering the 2008 estimate to 304,500,000 so you have comparable numbers (i.e., July 1 to July 1) shows a 3.7% increase in population from 2004 to 2008. Obviously, these numbers are not eligible voters, but I think the increase would be about the same. So, there was a small increase in the percentage of voters participating, but not a big one. What probably happened was that Obama wound up increasing the percentage of people voting in certain categories (for example, maybe Blacks and young people), while unhappiness with the Republican candidates and/or unhappiness with the Bush Administration and the Republicans in Congress from 2001 through 2006, decreased participation among other groups.

One more comment: The slowness of the counting of the last 3% or 4% of the popular vote perhaps provides another reason why electing the President by a straight popular vote is not be a good idea. Think about he possibility of a really close contest in the popular vote – and then consider additional votes coming in over days and weeks after election day. It would be Florida 2000 (or the gubernatorial election in Washington state in 2004) writ large. They couldn’t recount the votes in just Florida on a timely basis in 2000. How could we recount all of the votes in the whole country? And what about ballot security and standards for counting the votes? Appalling as it is to say, those things don’t matter if the election isn’t close. If it’s 60-40 (or even 53-46), it doesn’t matter. When it’s Florida in 2000, it does matter. If it was that close nationally, every vote everywhere would matter. In the governor’s race in Washington state in 2004, the election authorities in Seattle were discovering additional uncounted ballots days and weeks after the election. That was a big problem, but it was just one state. A close popular vote, and a President elected by popular vote, would make that a national problem – and could de-legitimatize the election in a way that would make Florida 2000 look like the proverbial Sunday School picnic.

Electing the President by popular vote. I don’t think I want to go there.

Secret Ballot? What Secret Ballot?

One of the first posts I ever made on this blog was on the problem of ensuring secrecy in voting with the optical scan ballot they have been using recently in suburban Cook County, Illinois. (See here.)

Well, they had a couple of video screen voting machines at the polling place today, and it was amazing. There was absolutely no secrecy at all when you used one of them to vote. The voting booth, if that is what you want to call it, had three really low sides. The video screen was situated so it was above any of the sides. And there was nothing behind the voter. It would have been no problem at all to see how any person using one of these machines was voting. You had no more secrecy than if you had shouted out your choices in a public meeting.

Oh well, at least it is Cook County. It’s not like we have ever had any problems with fraud in voting in Cook County. We’re all honest people, and we only elect honest politicians.