Photo: Alyssa Pointer / POOL / AFP
Artillery Row

Letter from Washington: Democratic delays and fragile freedoms

Trump’s tweet, Lewis’s lesson and Obama’s wish list

“Mark my words,” warned Democratic nominee Joe Biden in April. “I think he is gonna try to kick back the election somehow, come up with some rationale for why it can’t be held.”

At the time, the prediction earned the former vice president derision.

“The rhetoric is both unfounded and harmful to democracy,” inveighed the Washington Post’s resident Trumpsplainer Henry Olsen, adding: “Biden says he’s a better man than Trump. Comments such as these suggest that maybe he’s not.”

Jonathan Turley, a Georgetown law professor who appeared as a Republican witness during impeachment proceedings last year, said that Biden’s “conspiracy theory… should be sold in a set with a tin foil hat and an EMT ghost detector”.

Fast-forward three months and Biden’s prediction has aged regrettably well.

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Yesterday, Donald Trump raised the possibility of postponement in a tweet: “With Universal Mail-In Voting (not Absentee Voting, which is good), 2020 will be the most INACCURATE & FRAUDULENT Election in history. It will be a great embarrassment to the USA. Delay the Election until people can properly, securely and safely vote???”       

That this triggered opprobrium and denouncement is hardly a surprise. But the source and strength of some of the reactions suggest that there are limits to Republican acquiescence to Trump.

Senate majority leader Mitch McConnell typified the GOP response on Capitol Hill when he told a Kentucky radio station: “Never in the history of the country, through wars and depressions and the Civil War, have we ever not had a federally-scheduled election on time — and we’ll find a way to do that again this November third.”

Writing in the New York Times, Steven Calabresi, who voted for Trump in 2016 and, as the co-founder of the Federalist Society, sits at the heart of the conservative legal movement, went a lot further when he said he was “appalled” by the president’s tweet.

“Until recently, I had taken as political hyperbole the Democrat’s assertion that Donald Trump is a fascist,” he wrote. “But this latest tweet is fascistic and is itself grounds for the president’s immediate impeachment again by the House of Representatives and his removal from office by the Senate.”

The law, as Calabresi and others swiftly pointed out, is clear: the President cannot change the date of an election. Only a change in federal law can do that, which would require the Democrat-controlled House and the Republican-controlled Senate to agree to a postponement. The Constitution is equally unambiguous about when Trump’s term ends: election or otherwise, it’s over on January 20th. If no newly elected president is available by then, the Speaker of the House of Representatives would become acting president.

Calabresi again: “President Trump needs to be told by every Republican in Congress that he cannot postpone the federal election. Doing so would be illegal, unconstitutional and without precedent in American history. Anyone who says otherwise should never be elected to Congress again.”

Trump’s comments make those constitutional limits on his power look as necessary as ever. But it is increasingly clear that those checks are not sufficient to ensure a hiccup-free vote in November.

While the president is delegitimising a vote he is worried he will lose, his cynical manipulation only underscores the importance that states’ electoral infrastructure adjusts to the reality of pandemic-hit voting. It’s an odd paradox: Trump is the very reason why the substance behind his own bad-faith warning about mail-in voting is so important. And one is left with the awful feeling that the states are not ready.

Here, New York’s Democratic primary serves as a cautionary tale. Thanks to an entirely predictable surge in absentee ballots and bureaucratic incompetence, votes are still being counted more than a month after polling day. Roughly one in five New York City residents who voted by mail have had their ballots invalidated. Candidates are suing the state and questioning the validity of the results.

Were something similar to happen in battleground states in a close election in November, then faith in American democracy, as well as public order at a fraught moment in the country’s history, would likely depend on the beneficence of the president. Is that a risk Americans want to take?

***

In a parting essay, published on the day of his funeral — the same day as Trump’s “Delay the Election???” tweet — civil rights leader and congressman John Lewis issued a timely reminder that “Democracy is not a state. It is an act.”

For Lewis — beaten, arrested and heroically non-violent in his pursuit of a fuller, fairer democracy — these were words to live by. In his eulogy, former president Barack Obama said that “America was built by John Lewises. He, as much as anyone in our history, brought this country a little bit closer to our highest ideals.”

It is possible that this speech is remembered as one of the 44th President of the United States’s more consequential, helping to frame the presidency of the 46th

Obama’s liberalism, like Lewis’s, is inclusive, constructive and increasingly unfashionable on the American left, where more and more see the country’s core principles as hollow hypocrisies to be junked, rather than goals worth striving towards. But if Obama’s eulogy was a quiet refutation of left-wing cynicism, it was a far louder denunciation of the right:

We may no longer have to guess the number of jelly beans in a jar in order to cast a ballot, but even as we sit here, there are those in power doing their darnedest to discourage people from voting by closing polling locations and targeting minorities and students with restrictive ID laws and attacking our voting rights with surgical precision, even undermining the Postal Service in the run-up to an election that’s going to be dependent on mail-in ballots so people don’t get sick.

In perhaps his most significant political intervention since he left the White House, Obama went on to call for specific changes to the democratic process: additional polling stations, a national holiday on election day, statehood for DC and Puerto Rico, an end to gerrymandering and, perhaps most contentiously of all, the elimination of the filibuster — which effectively means legislation needs the support of 60 senators if it is to pass — if that is what it takes to implement those changes. (Exactly why Democrats seem so sure that abolishing the filibuster won’t come back to bite them is an interesting question for another day.)

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If Obama’s one-time right hand man wins both the White House and a Senate majority later this year, it is possible that this speech is remembered as one of the 44th President of the United States’s more consequential, helping to frame the presidency of the 46th, and persuading Biden, a Senate veteran so fond of old school, across-the-aisle politics of another version of American democracy.

Between here and there, however, are more pressing questions surrounding November’s vote. Foremost among them: what needs to be done to safeguard its legitimacy and whether the candidates and those around them recognise their responsibility as custodians of America’s fragile freedoms.

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