Peter Elikann, a Boston-based criminal defense attorney, discusses the history of voter suppression in America and its relevance to the 2020 Presidential Election....
Voter suppression, which represents the dark underbelly of the American experiment, has reared its head throughout our history, particularly beginning at the cession of the Civil War. After the passage of the Fourteenth and Fifteenth Amendments, former slaves got an all-too-fleeting taste of emancipation when they not only came out to vote in droves, but numbers of them got elected to the United States Congress and Senate.
In a vicious backlash, their participation was almost extinguished through both the extralegal means of violence and the legal means of poll taxes, literacy tests, and grandfather clauses that limited voting to people whose fathers or grandfathers had voted prior to 1867 when African Americans had the right to vote. It was so effective that, for example, in Alabama in 1890, 140,000 blacks were registered to vote but, by 1906, that number was literally reduced to 46. This continued into the 1960s when, for instance, one woman of color with a master’s degree was denied registration in Montgomery, Alabama after having answered correctly every question posed to prove her literacy, but was unable to answer the question of “How many bubbles in a bar of soap?”
It wasn’t until the passage of the 1965 landmark Voting Rights Act (VRA), labeled as one of the greatest pieces of legislation in American history, that came in the wake of the vicious Bloody Sunday attack of nonviolent activists marching for voting rights on the Edmund Pettus Bridge in Selma, Alabama, that a dramatic turn-around happened. The VRA was an enormously effective tool that gave it the power to monitor, investigate, and prosecute discriminatory practices. Then, in 2013, just short of 50 years since its enactment, all progress ground to a halt with the United States Supreme Court decision in Shelby County, Alabama v. Holder that gutted the Voting Rights Act.
In the wake of Shelby’s election, a plethora of actions rolled back a half-century of progress as stringent voter i.d. laws were passed; early voting hours were cut back; the number of polling places was reduced, as well as the number of voting machines and voters who showed up at the polls only to be turned away when they learned they were included in wholesale voter purging lists. In one county, a study showed that 95 percent of those purged were legally entitled to vote. Other studies have determined that voter suppression has been aimed with almost surgical precision at African Americans. For example, in the recent April 2020 Wisconsin election, 180 polling places in Milwaukee were reduced to 5, creating hours-long waits in lines that went on for blocks.
Voter suppression occurs when a candidate or party believes they may not win, so their only assured path to victory is to block the opposition from voting at all.
In this one area, President Trump has been guileless about his motive, openly declaring his belief that, if efforts to increase voter turnout by mail-in ballots are encouraged, “[Y] ou’d never had a Republican elected in this country again.” He has further stated that voting by mail “for whatever reason, doesn’t work out well for Republicans.” Democrats overwhelmingly say they are more likely to vote by mail than Republicans.
President Trump openly admitted that he was eviscerating the United States Postal Service with the naked intent of frustrating the voting process by slowing down and obstructing mail-in voting to make it unworkable. He declared that he would block requests for funding for both the USPS in general and for the facilitation of ballot collection and delivery because:
They need that money in order to have the Post Office work so it can take all of these millions and millions of ballots. By the way, those are just two items, but if they don’t get those two items that means you can’t have universal mail-in voting because they aren’t equipped to have it.
It was as clear and blatant an intention as when, in 1908, unapologetic segregationist Senator “Pitchfork” Ben Tillman of South Carolina exclaimed in virulent oratory, “We stuffed ballot boxes. We shot them . . . we are not ashamed of it.”
There is an unparalleled public demand for mail-in voting at this time due to safety concerns about in-person voting due to the current coronavirus pandemic since, otherwise, many voters would have to make the untenable choice between giving up their right to vote or showing up at the crowded polls and endangering the health of themselves and their families. Among other actions, President Trump has already begun eliminating automatic letter sorting machines that speed delivery by sorting as many as 35,000 pieces of mail an hour; taking truckloads of the iconic blue public letter collection boxes off the streets; barring overtime of postal workers so that they cannot continue to work until all the mail is delivered; taking away billions of dollars in post office funds; instructing post offices to open later and close down for lunch; ordering mail-in ballots no longer be moved as priority mail; altering operations at state distribution centers, and firing or reassigning the top echelon of the postal service leadership. This, after appointing him as Postmaster General, Louis DeJoy, a major Trump donor with no experience whatsoever in the public postal service, although he reportedly has up to $75 million invested in private competitors to the government postal service.
While the mounting public outcry caused DeJoy to reverse course and discontinue these measures, he nevertheless announced he had no intention of restoring the equipment already removed and the Trump administration is not funding efforts to eliminate the backlog it caused. This paralyzing of the American mail service has caused historic, unprecedented, often weeks-long delays in mail delivery in brazen disregard of its threat to the well-being of veterans and the disabled, among others desperately relying on mailed medication, social security checks, other funds, bills, and perishable items sent by businesses. In just one instance are Maine farmers who, for years, have received baby chicks sent to them through USPS only to have thousands of the birds arrive dead due to the delays. The only similar action to use the post office as a political instrument goes back to the 1830s when the pro-slavery President Andrew Jackson agreed to have the post office withhold mailings from abolitionists denouncing slavery that he thought might hurt the chances of his chosen successor.
President Trump has stated concerns about potential fraud as to why he wants to hamstring the postal service. This, despite the fact that there is no evidence to substantiate a history of election fraud other than the rarest of isolated incidents as it is virtually nonexistent compared to the number of ballots cast and, in fact, 5 states – Colorado, Utah, Hawaii, Oregon, and Washington – have regularly held their elections almost solely through the mail and it has worked just fine. In fact, in the Trump reelection campaign’s 524-page response to a discovery demand ordered by a federal court judge in Pennsylvania to back up its claims of a risk of fraud in the state’s vote-by-mail system, they came up with not a single instance of previous mail-in vote fraud.
President Trump himself continues to vote in Florida by mail but has stated that a particular state is okay for mail ballots because “Florida’s got a great Republican governor” and is “different” than other states.
The Postal Service has already sent out letters to most states warning that their mail-in ballots may not be counted in time due to their current standards of delivery. So the bottom-line question is since mail-in election balloting is lawful in the United States, are intentional efforts to undermine and interfere with a free American election illegal and, if so, criminal? In this unprecedented attempted strategy of trying to keep down the number of voters as opposed to encouraging an increase of voters such as Canada with its 93 percent turnout or Australia at 96 percent, a plethora of criminal offenses may have already been committed for both obstructions of the mail and obstruction with voting. The proposed offenses, both federal and state, are legion as officials across the nation are considering many options for legal measures.
Former U.S. Attorney General Eric Holder has cited 18 USC 1701 that states: “Whoever knowingly and willfully obstructs or retards the passage of this mail, or any carrier or conveyance carrying this mail, shall be fined under this title or imprisoned for no more than six months or both.” Or there is 18 USC 594 that criminalizes “Whoever intimidates, threatens, coerces, or attempts to intimidate, threaten, or coerce, any other person for the purpose of interfering with the right of such another person to vote or to vote as he may choose . . .” This forcible disenfranchisement of American citizens by slashing the baseline capacity of the post office until it is too slow to handle their ballots on time is no less threatening and no different than snatching the ballot right out of their hands.
Arizona’s Secretary of State Katie Hobbs wants an investigation to determine whether President Trump has violated state law, making it a crime to knowingly “delay the delivery of a ballot.” Hobbs asserts:
Arizona’s Constitution states that ‘all elections shall be free and equal, and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.’ In Arizona, where the vast majority of voters choose to do so by mail, attempts to sabotage the USPS just months before an election is most certainly attempts to interfere with ‘the free exercise of the right of suffrage.’
Every other state has a similar law criminalizing election interference. Additionally, it is a likely constitutional infringement of state authority to run their own elections. There is a flurry of activity racing to determine the number of laws, both civil and criminal, that are being broken.
In New Jersey, a criminal referral has been made to that state’s Attorney General asking that a Grand Jury be empaneled to investigate “subversion of election laws by Donald Trump, Louis DeJoy, and other Trump officials in their accelerating arson of the Post Office.” Dozens of state attorneys general are filing individual or joint lawsuits arguing, among other things, that the Postal Service broke the law by making operational changes without first seeking approval from the Postal Regulatory Commission, thereby impeding the ability of states to run free and fair elections. The constitution gives states the authority to decide how to hold elections.
In Connecticut, Attorney General William Tong argued that the President is “clearly trying to sabotage the election” while Maryland A.G. Brian Frosh called it a “straight-up attack on democracy.” One of those is Massachusetts A.G. Maura Healey, who objects to the president’s “effort to undermine the electoral process, to create chaos and doubt in voters’ minds.”
The U.S. Postal Service Inspector General has launched an investigation into the legality of the scheme. Inevitably, a charge of abuse of Presidential power is being cited because, as one legal authority, Tor Ekeland, states, “Tampering with the mail and federal elections are crimes no matter who does it. Just because you run the bank doesn’t mean you get to steal the money. This reeks of mail and election fraud — a scheme to defraud people using the removal of mail sorting machines without reason as a means to inhibit mail-in voting. These are felonies and should be investigated and prosecuted appropriately. If this is being done at the direction or suggestion of the President to intentionally slow or minimize voter participation, in other words, to sabotage the election, then it’s a clear abuse of Presidential power.”
The sole rationale for weaponizing the gutting of the American post office as a tool to admittedly enable voter suppression is President Trump’s assertion that mail-in ballots will undoubtedly be used to commit fraud. It is a conspiracy theory for which there is no supporting evidence that is precipitating a constitutional crisis, a crisis of democracy, and an assault on the very touchstone of the American experiment.
Peter Elikann is a Boston-based criminal defense attorney, author, television legal commentator, and college instructor.
Suggested citation: Peter Elikann, Voter Suppression Through the Mailbox, JURIST – Professional Commentary, August 25th, 2020, https://www.jurist.org/commentary/2020/08/peter-elikann-voter-supression/.
This article was prepared for publication by Vishwajeet Deshmukh, a JURIST staff editor. Please direct any questions or comments to him at email@example.com
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