The Real Battle For The Midterms

The most consequential fight over the midterm elections is not being waged where you'd expect.

Not yet at the polling places, or the drop boxes, or the kitchen tables where mail-in ballots get filled out. This is a battle that’s being waged on paper, in courtrooms, over deadlines and definitions—deep in the electoral machinery that decides whether your ballot ever reaches you at all. And it is being waged now, in the heat of late summer, months before a single vote is counted.

At issue is a sweeping executive order President Trump signed in March, aimed principally at mail-in voting.

That order would, for the first time, give the federal government a major role in deciding who gets to vote by mail. It instructs the Department of Homeland Security to build lists of citizens—assembled from federal databases—and send them to the states. And it instructs the Postal Service to refuse to deliver a mail-in ballot to anyone whose name does not appear on an approved federal list.

Read that again.

A federal agency, told not to deliver your ballot unless you have been cleared by another federal agency.

And hanging over the whole operation is a threat: state and local election officials who provide ballots to the “wrong” people, people whom the administration considers ineligible, might get investigated by the FBI and prosecuted by the Department of Justice.

The war he launched in the Middle East—and now cannot get out of—is slowly dragging down the economy, and his poll numbers, too. So Trump seeks to muscle the elections. That executive order is just one vector of the attack.

The stated reason for all this is fraud—the old claim that noncitizens are voting in droves. But the trouble with that claim is that this fraud, which the Republican Party has been hunting for decades, high and low in every corner of the country, keeps turning up almost nowhere.

Louisiana went back four decades and found 79 questionable ballots out of some 74 million cast. Utah looked and found zero. When Homeland Security ran tens of millions of voters through its citizenship database this year, the "matches" it produced were fewer, proportionally, than the errors such databases are known to make on their own.

The hunt for voter fraud simply does not find much fraud. It manufactures suspicion.

But the real issue is constitutional.

For more than two centuries, American elections have been administered primarily by the states and local communities. Congress can establish national rules for federal elections.

BUT:

Trump is attempting to create that power for himself—by creating a false narrative about fraud.

In July, a cabinet secretary stood up and claimed a quarter-million noncitizens were on the rolls in four states—a number concocted not from legitimate electoral data kept by the states, but from commercial data. And there wasn’t any evidence in the commercial data that any of the supposed non-citizens had ever voted.

The number was the point. It is ammunition, held in reserve for November, for the morning after a result that someone doesn't like.

The administration calls this attack “election integrity”. But the plan outlined in Trump’s order is an invitation to inaccuracy, because it depends on something the federal government does not possess: a complete, accurate and constantly updated list of every American citizen.

People move. They marry and change their names. They become naturalized citizens. Government databases contain mistakes. This “system” now being used for citizenship checks has already falsely identified eligible voters as noncitizens.

To their credit, the courts have not been fooled by all this flim-flammery.

A federal judge struck the order down as beyond any president's power under the Constitution. An appeals court agreed, warning that the order would "sow confusion and threaten disenfranchisement."

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And here is some good news:

The principle that is now being championed in Red and Blue states alike is federalism—states' rights, that conservative watchword—now wielded to protect the vote. Republican election officials in Idaho and Louisiana have pushed back as sharply as any Democrat. What we are witnessing is the old constitutional consensus holding the line.

But now the administration has gone to the Supreme Court, asking for emergency permission to proceed. The Trump-friendly justices on the Court could unsettle the entire election within days.

But to do that, they will have to turn their eyes and refuse to see the clear and present danger in Trump’s attacks.

When Congress has not enacted the voting rules he wants, he issues executive orders. When states resist federal demands, his administration threatens their officials. When courts block him, he asks the Supreme Court to let him change election procedures anyway, just weeks before voting begins.

So this is not just another argument about absentee ballots.

It’s a battle over who controls the election itself.

The Constitution’s answer is clear: not the president.

—Terry