Political Animal

How to Get Vote-by-Mail Reform to Biden’s Desk

by Eric Cortellessa

After the 2020 election, America’s electoral infrastructure is in a weird place. At least six states controlled by Democrats are moving to advance the vote-by-mail expansions made during the pandemic. In New York, for example, Gov. Andrew Cuomo is pushing for a law to allow “no-excuse” absentee balloting. At the same time, Republicans in a handful of states are unambiguously trying to make mail-voting harder. Georgia Gov. Brian Kemp said he wants to impose a photo ID requirement for anyone requesting a mail ballot, thereby adding a new obstacle for Georgians to vote from home. In Texas, Republican legislators introduced nearly a dozen bills attacking vote by mail, one of which would prohibit the state from sending all voters absentee ballot applications. These moves are on top of actions that GOP officials made last year under pressure from Donald Trump to suppress the vote, such as restricting the use of ballot drop boxes and banning the early processing of absentee ballots.

Given this one-step-forward-two-steps-back reality, the only way to ensure that every American can vote by mail if they want to is for the federal government to create a new baseline of uniform minimum standards that all states would have to meet.

Thankfully, one of the first major legislative initiatives in the new Congress would do precisely that. H.R.1., an exhaustive bill that’s more than 800 pages long, is practically a Christmas tree of progressive democracy-reform priorities: from expanding automatic, online, and same-day voter registration, to ending felony disenfranchisement.

But, unlike the first version of the bill, which passed the House in March 2019 and predictably went nowhere in the Republican-controlled Senate, it also includes key provisions that would build on the success of widespread vote by mail in the 2020 election. It would make no-excuse absentee voting a national right, allowing every American to vote by mail without needing to provide a reason, as some states still require. It would prohibit states from making voters get their mail ballots co-signed or notarized, removing an unnecessary barrier that makes it more difficult to vote from home. It would mandate that every county have a sufficient number of drop boxes where voters can return their filled-out ballots. It would have the federal government pre-pay all postage on absentee ballots, getting rid of yet another barrier to mail voting: cost. It would require that states allow voters to deliver mail ballots at polling stations. And it would bar states from enacting voter ID requirements to request a mail ballot, which Republicans in Georgia and Texas are now pushing for.

Together, these measures would improve the voting process in countless ways—for instance, by getting rid of the uncertainty that voters and elections faced last fall while local laws were litigated, and requirements changed day by day. H.R.1 also has some of the best mechanisms to “prevent Republicans from dismantling voting rights and voting access under the guise of security, all in reaction to allegations of voter fraud that they themselves fabricated,” said Tammy Patrick, former commissioner on Obama’s Presidential Commission on Election Administration.

With a Democratic president and Democratic control of both the House and Senate, a version of the bill is highly likely to pass the House and be considered in the Senate. Beyond that, its fate is hard to predict. The text as is will have an extremely hard time making it through the upper chamber, which Democrats narrowly control in a 50-50 split.

It would be easier for Senate Democrats to shepherd the bill through if they abolish the filibuster—though perhaps in a somewhat changed form to win support from every member of the Democratic caucus. But with Democratic Senators Joe Manchin of West Virginia and Kyrsten Sinema of Arizona having reiterated their opposition to killing the filibuster, that’s off the table, at least for the foreseeable future. That means Senate Democrats, who sources tell me are planning to release their own version of the legislation after Trump’s impeachment trial, will almost certainly need to agree to considerable compromises on H.R.1 to have a shot at picking up the 10 Republican Senate votes the bill will need for passage.

It’s therefore important to know which of the vote-by-mail provisions are the most essential and non-negotiable—and which Democrats can afford to modify. Otherwise, if Democrats cannot pass a major package of new federal laws and standards, state Republicans will inevitably continue to engineer laws and policies that suppress the vote, with a special emphasis on hindering mail voting.

Here, then, are the parts of the bill Democrats should fight hardest for:

No-Excuse Absentee Voting

This simple change would let anyone vote by mail—without needing to provide a reason, i.e., an excuse—to request an absentee ballot. Several states that eventually adopted universal vote by mail, like Oregon and Utah, first started with no-excuse absentee voting and quickly discovered that voters preferred this means of casting their ballots. While the GOP is targeting this policy now, they were once some of its biggest champions. Utah, a red state, enacted no-excuse absentee voting in 2004. Georgia did the same in 2005 under Republican control. Ironically, Georgia’s Republican Secretary of State Brad Raffensperger is now pushing to get rid of it. That Raffensperger, who showed great courage standing up to Trump during the Georgia recount, has caved to pressure from the conservative base is evidence that only a new federal law can protect the right of voters to receive absentee ballots without having to ask for permission.

The no-excuse absentee provision also ensures that voters can sign up for absentee voting permanently, instead of having to do so again and again for each election, which adds another unnecessary burden on the voter. Democrats need to make sure that makes it through any final passage.

Access to Ballot Drop Boxes

In universal vote-by-mail states, one of the most popular means for returning filled-out ballots is through drop boxes—secure sites where voters can hand off their ballots like they return books at a library. That’s why the more accurate term for the system is actually “vote at home”: You can fill out your ballot around your kitchen table, do your research on down-ballot races, and mail it back or drop it off when you’re ready. Drop boxes proved especially valuable during last fall’s election when delays in mail service (manufactured by Trump’s postmaster general) made voters rightly nervous about relying on the postal system to deliver their ballots in time to be counted.

Unsurprisingly, one of the biggest Republican strategies to depress turnout in 2020 was eliminating or severely limiting ballot drop boxes. In Ohio, for instance, the Republican secretary of state only allowed one drop box per county. That resulted in Ohio’s densely populated Cuyahoga County, which had more than a million voters, having the same number as Vinton County, which had a little more than 13,000 voters. Republicans won’t be able to pull such moves in the future if Senate Democrats can protect a provision in H.R.1 mandating that every county have one ballot drop box for every 20,000 eligible registered voters.

Getting Rid of Witness Signatures

Democrats should also hang tough on language in the bill prohibiting state and local governments from requiring witness signatures on absentee ballots. They aren’t necessary to prevent fraud; virtually every state with absentee voting already verifies that the signature on a mail ballot matches the one on the voter’s registration, a security measure that proved highly effective in 2020. Despite unprecedented efforts by Republicans and conservative groups to dig up evidence of widespread fraudulent voting, none was found. Witness signature requirements, like those on the books in such states as Wisconsin, North Carolina, and South Carolina, serve no purpose other than suppressing vote-by-mail balloting. And at that, they are effective. The Associated Press reported in September that  “lack of a witness signature or other witness information has emerged as the leading cause of ballots being set aside before being counted in North Carolina, with problems disproportionately affecting Black voters in the state.”

Allowing for a “Cures Process” to Fix Errors or Discrepancies on Mail Ballots

H.R.1 has an important provision that elections officials who have administered vote-by-mail elections insist is essential: allowing a period of time for voters to address or fix any problems with their ballots. This gives the voter an opportunity to ensure they are not effectively disenfranchised for minor errors, like forgetting to sign both the ballot and the outside of the envelope. The bill mandates that each state give voters 10 days to rectify any defects with their ballots after being notified of a problem.

While Senate Democrats need to stand their ground on areas like these, they can budge on a few others without putting the future of democracy at risk:

Pre-Paying Postage on All Mail Ballots

No serious voting rights expert would oppose pre-paying postage for absentee ballots. It’s a simple way to make absentee voting easy—especially at a time when fewer Americans are using the first-class mail system and don’t necessarily have stamps laying around.

Under H.R.1, the federal government would reimburse states for providing prepaid postage to their voters. Republicans will doubtlessly whine about the cost. But one legitimate complaint they could raise is that the mandate, as written, could put states and municipalities in a tough budgetary position until the federal treasury pays them back, according to Patrick of the Presidential Commission on Election Administration. A better way to accomplish the goal would be to expand a program already in place that pre-pays postage on all mail ballots for military personnel overseas. That would require Congress to set aside money through appropriations to cover the cost outright, rather than having states send the federal government a bill every time they conduct an election. In other words, Democrats shouldn’t cave on pre-paying postage on mail ballots, per se, but they should be willing to modify how they plan to do it.

Early Voting

H.R.1 mandates that each state holds 15 days of in-person early voting. While early voting is vital, such a high minimum number of days could put a heavy cost burden on states, particularly small ones, that already offer early voting. “You might end up forcing state election officials to spend money on early in-person vote centers that don’t need them while forcing them to eat the cost,” said Amber McReynolds, the CEO of the National Vote at Home Institute, who used to run Denver’s election office.

Maryland, the home state of the bill’s chief sponsor, Democrat Rep. John Sarbanes, offers eight days of early in-person voting. Rep. Sarbanes told me he was open to changes on that provision based on negotiations and consultations with elections officials and administrators.

Photo IDs

The drafters of H.R.1 were absolutely right to include language prohibiting states from requiring photo IDs for vote-by-mail ballots. As with witness signatures, these requirements do nothing to reduce the already vanishingly small amount of voter fraud. They serve only to make it harder for citizens who lack such IDs (disproportionately the poor, the elderly, and people of color) from participating in elections. Nevertheless, it’s a sure bet that Senate Republicans will demand a photo ID requirement as the price of any electoral reform bill they might support.

The good news is that there may be ways for Democrats to compromise on this issue without actually giving much up. A good template for such a compromise is the one Kentucky’s Democratic governor, Andy Beshear, brokered with his Republican-controlled legislature and the Republican Secretary of State Michael G. Adams. While the law requires voters to show a photo ID, almost any kind—including an expired student photo ID—suffices. Voters who lack even that can show a non-photo ID (like a credit card or Social Security card), fill out a one-page form, and vote like anyone else. In the end, only .04% of voters had to fill out the form, suggesting (though not quite proving) that the law did little to deter voting. “If I had my way, Kentucky would not have a photo ID law,” writes University of Kentucky professor of law Joshua A. Douglas. Still, the compromise, which he helped negotiate, was a “reasonable trade off,” he argues—one that “gave the Republican Secretary of State a political ‘win’ that could satisfy his base while he negotiated with Democratic Gov. Andy Beshear to make it easier to vote during the pandemic.” Senate Democrats will almost surely have to contemplate a similar compromise when they take up H.R.1.

The reforms in H.R.1 offer an early blueprint for the kind of changes Congress and the Biden administration should try to make now to improve the health of our elections. “There is no one reform that will get every American to vote, so we need a bunch of reforms in conjunction with one another,” said Myrna Perez, director of the Brennan Center’s Voting Rights and Election Program. That’s true, and H.R.1 has all the right components. But there is no reform that has a better track record than vote by mail for boosting voter turnout, especially in midterms, down-ballot races, and primaries.

That last category is especially important. By bringing more voters into primaries, vote by mail is one of the few electoral reforms with the capacity to dilute the power of the small percentage of highly motivated and ideological voters who effectively decide which candidates get to run in general elections. It is these voters, especially on the GOP side, who force incumbents to take extreme positions that even they often don’t agree with. The potential to lessen the chance that they will get “primaried” ought to be a reason for incumbent Republican senators to want some version of H.R.1 to make it through their chamber. Another is that, before Trump turned against vote by mail, the system generally helped Republicans bring in more older and rural voters who are key to their base.

Of course, we still have to live with the reality that, for the Republican Party, Donald Trump’s obsessions still rule. So we can expect a fight over this legislation in the Senate. That’s why Majority Leader Chuck Schumer and other Senate leaders will have to pick their battles to get the best deal they possibly can. That means knowing exactly which provisions to fight for, which to compromise on, and which to hold for another day.

Remember: There Was An Attempted Coup Against the United States Less Than a Month Ago

by David Atkins

Among the unique characteristics of American politics is our capacity to forget the unpleasant and inconvenient.

After a sitting president burgled his opponent’s headquarters and then tried to sack his entire Justice Department, his successor pardoned him in the service of “unity” and his party went on to thrive in the aftermath. Just over a decade later, there was an enormous scandal involving the secret sale of weapons to America’s top-profile international enemy to fund murderous paramilitaries on our own continent. The criminals involved were pardoned, the president involved feigned ignorance and then got the national capital’s airport named after him. Shortly thereafter, another Republican president lied the country into a costly and devastating war from which there remains no exit, then oversaw the worst natural disaster response in American history before catapulting the nation into the greatest economic calamity since the Great Depression. Within a decade, both parties seem to have forgotten that he even existed except to be seen as a respectable elder statesman at funerals and public functions.

Then came Donald Trump. Trump, his catastrophic failures and extraordinary malfeasance have not yet been forgotten because he still dominates the Republican Party. But his most horrific transgression is already receding into the background of the nation’s collective memory. So let’s all remind ourselves of what happened just this month.

This month–25 days ago!–there was an armed, murderous insurrection against the government of the United States. This insurrection was based on a months-long campaign of spurious lies that the election had been stolen somehow from Trump. These lies were enabled by intentional Republican policies like insisting on counting mail ballots late in order to create the impression of falsification, by the conservative infotainment brigade that promoted the calumnies of Trump and his lawyers, and crucially by hundreds of Republican politicians who backed the president’s lies in statehouses and on the floor of Congress.

Major GOP members of Congress and well-funded conservative groups organized the massive public event at the Capitol. The president’s apparatchiks in the Pentagon denied National Guard assistance to the Capitol Police, who were dramatically underprepared for what was to come–even though the President himself knew that perhaps over 10,000 troops would be needed.

And then the attempted coup began. Even as molotov cocktails and pipe bombs were staged at national party headquarters and elsewhere–likely as distractions–the Capitol building began to be overrun. Paramilitary militia men and women with military-style radios and handcuff zipties rolled through the halls and onto the floor of the Senate. They sought to kill or kidnap members of Congress, shoot the Speaker of the House and hang the Vice President from a makeshift scaffold, even as the legislators barely escaped with their lives by a matter of minutes thanks only to the heroism and quick thinking of handfuls of Capitol Police. They stole government computers with the intent to sell them to the Russian secret service. They sought to deliberately decapitate the line of succession behind Trump.

The seditious putsch plotters reportedly knew precisely not only where the Members’ offices were, but also their unmarked private workspaces in what appears may have been an inside job. As they went door to door in search of the Speaker of the House with murder on their minds, one Republican member of the House tweeted out the Speaker’s movements from the floor while being protected by the police, after allegedly having given some of the insurrectionists a tour of the Capitol just days before.

They failed by the narrowest of windows. But they did succeed in murdering a police officer. They clamored for the murder of others, shouting to kill one with his own gun. They injured dozens of others. One lost an eye; others suffered traumatic brain injuries. Another officer committed suicide afterward. And curiously, the only reinforcements during the event for hours came not to assist the officers–who were deliberately instructed to stand down without armed violence except under extreme duress–but to quickly secure and drag to medical attention the only insurrectionist fatally wounded by police.

It was not, as most journalistic organizations are calling it, a “mob” or a “riot.” It was an attempted coup, an insurrection, a mass assassination attempt. Those who perpetrated it were remarkably allowed to exit with their stolen loot and disappear into the night on their own recognizance, and while many have been arrested or are under surveillance, many are remain at large with whereabouts unknown. The President of the United States, having sent his army to the Capitol, did nothing to quell the violence for hours. Reportedly, the President grinned with glee and excitement as he watched the autogolpe unfold. And then that very same evening 147 Republican members of the House of Representatives sustained the President’s same lies that prompted the insurrection from the floor of the House–an act that, had it succeeded as a majority position, would have overturned the will of the voters and the Electoral College, functionally installing Trump as an unelected dictator. Two Republican Senators did the same from the floor of the Senate. All of them did so in a direct affront to their colleagues who were almost murdered in front of their eyes just hours previously.

This all happened less than a month ago.

And now? Forty-five Republican Senators remarkably voted that there shouldn’t even be an impeachment trial at all, under the theory that if a president commits high crimes in the waning days of his presidency he cannot be held accountable at all. The conservative media wurlitzer is pretending the incident never took place, that it was a minor blip on the political radar, that it was justified or a false flag perpetrated by leftists.

Meanwhile, President Biden has taken office and most of the press has settled into its comfortable role of analyzing stimulus talks, wondering if a few Republican Senators can draw out the negotiations, kvetching over deficits and reconciliation rules as if many of these same legislators hadn’t just been engaged in a coup against democracy just three weeks earlier. None of the insurrectionists has even been charged yet for the injury or murder of a police officer. Congresswoman Boebert has not yet been forced under oath to explain in public why she was tweeting out the Speaker’s location. One of the Congressmembers who supported the president’s assault on democracy just flew to the district of one of his Republican colleagues who had the temerity to hold the former president accountable, staging a rally in her backyard to encourage her removal in the next election. And after a short joke of an impeachment trial in which most Republicans will dutifully acquit the lead instigator of the failed coup, most of the political establishment will send the entire incident down the memory hole, encouraging Americans to “look forward not backward.”

But we cannot. There was a violent, murderous coup attempt against the United States less than a month ago. None of the pawns have yet been charged with the most serious crimes. None of the most powerful people who truly instigated it have faced any accountability at all. And nothing has structurally changed to prevent it from happening again.

Do not forget, and do not let them try to make you forget. Not until there is justice and accountability.

Immediate Relief Is More Important Than Letting Republicans Pretend at Bipartisanship

by David Atkins

The pattern seems to repeat itself endlessly. Once again, a Democratic president has to take over and fix the mess left behind by his Republican predecessor. And once again, Republicans are trying to prevent the Democratic president from taking effective action by pretending at bipartisanship, hamstringing efforts at relief through scare tactics over the deficit and moral hazard. FDR faced the same challenge in fixing the Great Depression after Hoover, Obama faced it in dealing with the Great Recession after Bush, and now Biden is dealing with the same challenge after Trump’s disastrous failure to respond to the pandemic.

The Biden plan to secure COVID relief is appropriately aggressive. It asks for $1.9 trillion to get people and businesses direct relief, implement vaccines and improved public health, help patch up ruined state and local budgets, assist beleaguered schools in reopening, raise the federal minimum wage, and assist struggling parents. This plan will not have difficulty passing the Democratic-controlled House.

The problem, of course, is the Senate. Deadlocked at 50-50 with the slimmest Democratic control by virtue of Vice President Harris’ tiebreaking vote, each and every Senator suddenly becomes a dealmaker–or dealbreaker. More importantly, the continued presence of the filibuster means that non-budget actions require the cooperation of at least 10 Republican Senators to reach the 60-vote threshold necessary to pass. Joe Biden’s own personal and campaign commitments toward bipartisanship and “unity” make the prospect of trying to secure Republican cooperation appealing.

But Republicans are not serious about cooperation. As with their efforts to derail the Affordable Care Act that ultimately resulted in zero Republican crossover votes, and their successful actions to shrink the American Recovery and Reinvestment Act far below what was necessary, there is a vast disparity between what Republicans are willing to accept and what the country needs. Ten Republican Senators have proposed a laughable counteroffer of $600 billion that lacks most of the critical elements of Biden’s push, including the federal minimum wage increase. They are pretending to be concerned about the deficit, despite having supported Trump’s budget-busting tax cuts for corporations and the rich, just as they did the decade previously under the George W. Bush.

Fortunately, Democrats appear to be getting wise to the game. Trying for bipartisanship is a fool’s errand when the other side does not negotiate in good faith:

Democrats are haunted by legislative memories of 2009 as they fashion their response to the multiple crises of 2021.

Their strategy for addressing the coronavirus pandemic and its accompanying economic havoc is being shaped by what they see as their own miscalculations 12 years ago when Barack Obama became president, they controlled both houses of Congress and they tackled both an economic rescue package and a sweeping health care overhaul.

In retrospect, in the quest to win Republican backing for both, Democrats say, they settled for too small an economic stimulus and extended talks on the health care measure for too long. Those experiences explain why the White House and top Democrats are determined to move quickly this time on a plan for pandemic aid, and why they are reluctant to pare back their nearly $2 trillion stimulus package or make significant changes that would dilute it with no certainty of bringing Republicans on board.

That last sentence is crucial, too. There is no guarantee that even if Democrats did make the wrong choice on policy and cooperate in sabotaging badly needed relief efforts, that Republicans would not balk and alter the deal. Previously, efforts at bipartisanship with Republicans have resulted not only in stunted bills, but months of wasted time in which conservative media whipped up a frenzy against the legislation with their base. There is no reason to replicate the pattern.

Most of the budgetary elements of the Biden proposal can be passed unilaterally by Democrats using the budget reconciliation process that only requires 50 votes. There is some question as to whether the federal minimum wage qualifies under reconciliation rules, but most of the provisions should.

Ultimately, however, in order for the country to make real progress the filibuster will have to be eliminated. As the Senate skews ever more Republican and unrepresentative of the country as a whole, and as the GOP base continues to fall deeper into conspiracy theory paranoia, getting 60 votes to pass anything good will become almost impossible.

It’s good that Democrats are starting to understand that Republicans are not good faith negotiating partners, and that the only way to pass good policy is to go it alone. For now, that means using reconciliation. But soon even the most moderate members of the caucus will have to decide whether it’s more important to keep the filibuster or to get things done for the country.

A Delusional Trump Is Sabotaging His Own Impeachment Defense

by David Atkins

People have argued for years about how much Trump knowingly lies and how much he fervently believes the falsehoods he promotes. The run-up to his impeachment trial for insurrection is another piece of evidence for the latter.

Trump is apparently so stridently insisting on sabotaging his own impeachment defense that two of his lead attorneys are quitting. Rather than argue that his speech before the violent Capitol insurrection was encouraging a peaceful protest rather than a coup and mass assassination attempt, or that impeaching him would be unconstitutional because he has left office, he is demanding that his lawyers argue the incendiary and false claim that the election was stolen from him:

A person familiar with the departures told CNN that Trump wanted the attorneys to argue there was mass election fraud and that the election was stolen from him rather than focus on the legality of convicting a president after he’s left office. Trump was not receptive to the discussions about how they should proceed in that regard.

Never mind that Trump’s false claims of mass election fraud have never held up in court. The lie itself is so destructive to the fabric of democracy that it functionally led to the assault on the Capitol itself. After all, if the head of the Executive Branch continues to claim that there is a massive conspiracy to steal away democracy and that he has all the evidence but it’s being suppressed, there are only two possible conclusions: either he’s lying for personal gain, or he’s telling the truth and people should take extraordinary measures to “defend” democracy. The necessity of it is baked into the accusation itself.

That is why not only Trump but all his Republican enablers in Congress should be convicted for incitement. It’s no surprise that people who believe that Trump, Fox News, and Ted Cruz are telling them the truth, while everyone else is a liar and conspiracist, took extreme measures based on their warped understanding of reality. These dangerous lies themselves carry their own inevitable and dangerous consequences.

Before a fair and impartial jury, Trump’s most credible defense would be to shy away from the explosive calumnies that incited his supporters, and emphasize his plausible deniability in not explicitly asking his supporters to storm the Capitol. He would also be emphasizing the same legally suspect copout that 45 Republican Senators recently hid behind, insisting that the expiration of his term as president gives him a get-out-of-jail-free card to commit high crimes in the waning days of his presidency. Before a fair and impartial jury, doubling down on the very claims that pushed his horde of supporters to try to murder the Speaker of the House and the Vice President would be legally suicidal.

It won’t matter in the end because Senate Republicans are not a fair and impartial jury. They don’t dare cross the Fox News/Newsmax/OAN/QAnon thralls who still believe that Trump is their God Emperor and see any action against him as tantamount to treason and the betrayal of Christ. Trump could send Sidney Powell to Congress to assert Trump’s right to, as he himself famously put it, shoot someone on 5th Avenue, and you still would not find 17 Republican Senators with the conscience to convict.

But still, all Trump has to do to ensure that Republicans defend him is…nothing. He simply needs to make the same specious case that Rand Paul is. But he can’t help himself. He has managed to convince himself of his own lies that he was robbed, and he won’t settle for any safer defense of his actions. He’s the rare con artist who can tell a lie in the morning and convince himself of its truth by mid-afternoon.

In the end, though, Trump is who he is. He’s a broken, dangerous and irredeemable man. Our greater contempt should fall on the cowards in the Republican Senate who will refuse to hold him accountable in spite of his own efforts at self-sabotage.