October 27, 2020 • Day 229
Here in the U.S., Election Day is one week from today. I started writing this for next weekend’s newsletter, but, I mean, this is a long piece about voting, and what if you haven’t made your plan to vote yet?! So I decided to send it today as a special bonus edition.
Every year, but especially this year, even though we talk about Election Day as if it’s the only day when Americans choose leaders, it really marks the end of voting for an election. Early voting has been happening for weeks; mail-in voting started even before that.
In a normal year, poll closings on Election Day would mark the deadline by which everyone who wants to vote must vote, as well as (in some states) the postmark deadline for absentee/mail-in ballots, or (in others) the receipt deadline for those ballots. This year, some states have extended those deadlines and others haven’t. Some of those extensions have been challenged in court; some of those challenges were successful, some weren’t; some unsuccessful challenges have been overturned on appeal, some are still pending.
In the last few weeks/months, I’ve picked up the bad habit of saying/tweeting things like 40% of Americans support Trump and his agenda whyyyyyyyyy. But it’s important to remember that in the United States voting is optional. In a normal year, up to half of all eligible voters skip the election. Why? Because voting is harder than it ought to be, and people don’t feel they get much out of it.
There were a few different articles about this in the last week (mostly just Sunday and yesterday):
The NYT went to East Stroudsburg, PA — incidentally, the literal first town across the border from NJ, or the least far from Manhattan an NYT reporter would have to drive to talk to Pennsylvanians — and spoke with people who not only skipped the 2016 election but plan to skip this one too:
They expressed a profound distrust of politics and doubted their vote would have an effect. They felt a sense of foreboding about the country and saw politics as one of the main forces doing the threatening. Many were not particularly partisan, and said they shrank from people who were.
FiveThirtyEight (with the polling firm Ipsos) surveyed voters about their plans to vote or not, and also analyzed publicly accessible voting records, and found that Americans fall into three categories: always-voters, sometimes-voters, and nearly-never-voters.
People who sometimes vote were a plurality of the group (44 percent), while 31 percent nearly always cast a ballot and just 25 percent almost never vote. … Many of the people we spoke with described their decision to vote as very personal, boiling down to the specific candidates, their own ability to navigate the electoral system that year, or whether they thought their vote would matter. But for others, being a “nonvoter” or a “sometimes voter” wasn’t really a choice. There are clear barriers to casting a ballot that many of them experienced.
Meanwhile, Terry Nguyen — who writes gen yeet, a newsletter about Gen-Z culture — wrote about the other side of the coin: people and brands who’ve deputized themselves “voting influencers”, and the ways that America and her voting process are “federalist as fuck”:
Everyone and everything within a 2-mile radius of my Brooklyn-based universe has spent the past month reminding me to vote. I walk past “VOTE” signs and stickers plastered on the sidewalk and construction plywood. Through e-mails and Facebook ads, Nike, Chipotle, Lyft, and Amazon urge me to check my registration and vote early if I can. On Instagram, a girl from my high school who I haven’t seen in 8 years posts voting PSAs and state-by-state registration deadlines.
… Voting is not compulsory in the U.S., nor is voter registration automatic or simple. There isn’t a federal holiday for citizens to take time off from work to vote, and thanks to a law passed by Congress in the 19th century, Election Day always falls on a Tuesday in November. Sure, our corporate overlords have stepped in, effectively branding themselves as stewards of democracy, although if you scrutinized some companies’ Election Day policies under a microscope, they’re usually not as flexible as advertised.
That means, at a federal level, workers and students don’t have mandated time off (although laws for voting leave do vary by state, because again, we’re federalist as fuck).
All of this has a significant impact on young voters, who have historically been blamed for their apathy or ideological disengagement towards the political process. But neither are accurate diagnoses for the bleak 46 percent turnout rate among voters ages 18-29. It’s a pretty bleak number, but one that can be improved by reducing systemic barriers and implementing same-day voter registration.
In a low-turnout year, with only 50% of eligible adults voting, that can mean as few as 20-25% of the electorate are the ones actually deciding things for all of us, and they — we? — tend to be individuals who already have a lot of political and social power: people with money, people with free time, white people, older people.
Minority rule has been a feature of American democracy from the jump. The framers probably thought this was a feature, not a bug, because it meant that only the most engaged, informed citizens would be able to set the direction of the nation. But that implies they thought it wasn’t enough to just live in a society to have a say in how it runs. Decisions in the U.S. are made by those who show up to vote, and those who don’t or can’t show up have to rely on the good grace of those who do.
We haven’t done a great job.
Did you know the Constitution does not explicitly grant a right to vote?
The text of the Constitution says more about protecting slavery than about anyone being guaranteed the right to vote. Seriously, the word “vote” appears in the document only in the context of how our elected officials vote toward certain ends; it’s silent on how we, the people in whose name the Constitution was adopted, pick those officials.
Not even the Bill of Rights — which covers many of the individual rights and freedoms not mentioned by the main Constitution, which was mainly concerned with how to design a government to replace British rule — enshrines anyone’s right to vote. The 15th Amendment, which guarantees former slaves the right to vote, was in fact the first time voting rights were codified in the Constitution for anyone. And, if we’re being pedantic, the 15th and 19th Amendments don’t guarantee the right to vote so much as require that it not be limited on the basis of race, gender, or ‘previous condition of servitude.’
I’m not a Constitutional or legal scholar, so I’m not qualified to speak to what writings or judicial precedents have held over the years, but as far as I know no one has ever had to worry about the Constitution not being explicit enough about the basic right to vote, because it’s clearly the foundation of everything. The Constitution doesn’t say that citizens can vote, but it guarantees a “republican form of government” to all states, and what kind of willful idiots would read that and grow up in this nation and not simply assume that individuals have the right to vote, or that that right should trump everything else because it’s the bedrock on which our republic was built?
Conservative constitutional ‘originalists’ — that’s what kind of idiots. Originalists, and the ‘textualists’ that preceded them, believe that the Constitution and all other laws mean exactly what they say, no more and no less. Rights that are not explicitly granted are up for debate, and arguments that hinge on what the framers thought but did not write into the document itself can be batted aside as hearsay.
Now, there are some implicit rights that it would be absurd to say don’t exist. The right to vote is probably one of these — the text of the 13th and 19th Amendments make no sense if there is no right to vote. But because the individual’s right to vote is not explicitly prioritized over, say, states’ rights to govern their own elections, there’s plenty of fertile and dangerous ground where an originalist could deny people — maybe a lot of people — their votes, so long as such denial was based on procedural grounds, and not explicitly on the basis of race or sex.
Originalists, being willful idiots, are willing to allow systematic vote suppression or gerrymandering so long as the suppressors don’t admit they’re trying to prevent Black people or women from voting.
This is a good time to pause and acknowledge that, last night, Senate Republicans representing a minority of U.S. citizens — but a majority of U.S. states — voted to confirm now-Justice Amy Coney Barrett to the Supreme Court. Barrett has only been a judge for three years, and prior to that had (like her colleague Brett Kavanaugh) worked as a conservative legal scholar, with little or no trial experience in her career to date. Barrett and Kavanaugh are both originalists, and Barrett is furthermore a religious ideologue.
They serve alongside an O.G. originalist, Clarence Thomas, and two other (slightly) less dogmatic but equally conservative judges, Alito and Gorsuch. Chief Justice John Roberts is, by the warped standards of this court, the ideological center, and was until last month the swing vote. There is a solid 5-4 majority (likely to be joined often as not by Roberts) who interpret the Constitution — a document shorter than most “1-pagers” at my work — so narrowly as to deny rights to basically anyone and everyone, although conveniently they tend to only use this superpower when it benefits the GOP’s political base and donor class.
Only two of those six conservative justices were appointed by a president who won the popular vote: Thomas (by George H.W. Bush in 1990) and Roberts (by George W. Bush, during his second term following his clear election win in 2004). Three of the six were appointed by Donald Trump, and all were confirmed by Senate Republicans representing a minority of U.S. citizens (but, of course, a majority of U.S. states).
I actually read DNC v Wisconsin Legislature
Some legal writing is opaque and impenetrable, but appellate court decisions and opinions — a genre that includes all of SCOTUS’s ouevre — tend to be readable, clear, and mercifully concise.
Yesterday, SCOTUS ruled to overturn a District Court decision in Democratic National Committee v. Wisconsin State Legislature, allowing the Republican-dominated Wisconsin legislature to enforce a strict Election Day deadline for receipt of mail-in ballots. Justice Gorsuch, concurring, wrote:
The Constitution provides that state legislatures—not federal judges, not state judges, not state governors, not other state officials—bear primary responsibility for setting election rules. And the Constitution provides a second layer of protection too. If state rules need revision, Congress is free to alter them. … Legislators can be held accountable by the people for the rules they write or fail to write; typically, judges cannot.
These are some good points! They seem reasonable! And it’s quite reasonable to suggest that the DNC’s case here was weak and did not hold up to the same judicial scrutiny it would have gotten in a less fraught era.
And yet, it’s a little bit more complicated than this. Wisconsin’s legislature is the most gerrymandered in the country—despite Democrats having a majority of votes in the state (as evidenced by a Democratic governor, Tony Evers, winning the last election in 2018) Republicans control 60% of the legislature. These principles Gorsuch applies to this case, of legislatures being accountable to the people, are bullshit if, in fact, legislatures are not accountable to people they disagree with. It’s true that legislatures and Congress can change rules that “need revision”, but if they won’t on ideological or political grounds, and individuals’ right to vote is not given at least equal stature to legislatures’ right to control elections, what’s the fucking point to any of it?
But wait! There’s more! There’s also a concurring opinion by Justice Kavanaugh, which you may have heard about on Twitter. He writes:
When an election is close at hand, the rules of the road should be clear and settled. That is because running a statewide election is a complicated endeavor. … Even seemingly innocuous late-in-the-day judicial alterations to state election laws can interfere with administration of an election and cause unanticipated consequences. … It is one thing for state legislatures to alter their own election rules in the late innings and to bear the responsibility for any unintended consequences. It is quite another thing for a federal district court to swoop in and alter carefully considered and democratically enacted state election rules when an election is imminent.
Here he’s repeating Gorsuch’s reasonable — and, it must be admitted, legally defensible — argument that the District Court overstepped, exerting power it did not have over the running of an election. But here, again, is the naive assertion that election rules enacted by state legislatures are necessarily democratic and subject to the people’s accountability. Sure, in states like New Jersey they are. In Wisconsin they are not.
Here he acknowledges that our patchwork of election laws — some of which have been adjusted for COVID, some of which haven’t — is, in Nguyen’s phrasing, federalist as fuck:
To be sure, in light of the pandemic, some state legislatures have exercised their Article I, §4, authority over elections and have changed their election rules for the November 2020 election. … a few States such as Mississippi no longer require that absentee ballots be received before election day. Other States such as Vermont, by contrast, have decided not to make changes to their ordinary election rules, including to the election-day deadline for receipt of absentee ballots. The variation in state responses reflects our constitutional system of federalism. Different state legislatures may make different choices. … But the Wisconsin State Legislature’s decision not to modify its election rules in light of the pandemic is itself a policy judgment worthy of the same judicial deference that this Court afforded the South Carolina legislature.
Kavanaugh and the majority are unconcerned with whether, as a practical matter, Wisconsinites are served by Wisconsin’s election process. Their constituency here is the state legislature, because the Constitution gives them standing.
Lastly, here’s the part that had everyone’s head exploding today, bolds mine:
For important reasons, most States, including Wisconsin, require absentee ballots to be received by election day, not just mailed by election day. Those States want to avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election. And those States also want to be able to definitively announce the results of the election on election night, or as soon as possible thereafter. Moreover, particularly in a Presidential election, counting all the votes quickly can help the State promptly resolve any disputes, address any need for recounts, and begin the process of canvassing and certifying the election results in an expeditious manner.
A lot of people read into this passage, seeing echoes of Trumpist rhetoric about late-arriving ballots “flipping” the election and states announcing election results “on election night,” and assuming this meant he was laying the legal groundwork for some future ruling declaring any votes counted after EOD next Tuesday invalid, because states must certify their results in time for Trump’s evening shows on Fox News.
Call me naive, but I tend to read Kavanaugh’s opinion here more colloquially: he’s factually wrong that states announce and certify results on election night, but in practical terms he’s right that states want as speedy and efficient a count as possible, so that “canvassing and certifying” can proceed in accordance with statutory deadlines. The “or as soon as possible” and subsequent mention of post-count election certification procedures offset the clumsy mention of election night.
I take no pleasure in finding that, on reading an opinion by one of Trump’s SCOTUS nominees, it seems to hold up. This decision, like the other election-related ones, is founded on the principle that rules are rules, and people (for better or worse) have to live by the law as written. It would be a stretch for even Kavanaugh or Barrett to find an originalist, textualist argument forcing state election agencies to end vote counting sooner than their state laws require. Hopefully we won’t get to find out how far they and their colleagues are willing to stretch.
What can we learn from this?
Back to that 40% who even now, after everything, still support Donald Trump and the GOP:
First of all, it’s important to remember that it’s not 40% of Americans who support that horrible orange man, his horrible nihilistic party, and their horrible failed policies. It’s 40% of the people who are willing and able to vote — which in a good year excludes at least 25% of us. Even then, everyone feels so disillusioned by the process that it’s hard to say what they’re voting for. The true silent majority (or plurality) in American politics are the ones who look at voting and politics and decide to opt out.
This is expected to be a high turnout year — possibly the highest in U.S. history, despite the pandemic and legal challenges like that which led to the Wisconsin Legislature decision. But that may just mean that 75-80% of eligible voters will have voted. Regardless of whether Biden or Trump wins, they’ll have been elected by a mere plurality of voters.
I have a few reactions to all this.
First of all, sympathy for the non-voters. Confession time: I did not vote for Barack Obama in 2008. That year I messed up and failed to register to vote before the deadline, and so even though I wanted to vote for Obama I couldn’t. Well, I could have voted provisionally, but that seemed like a hassle, and he was going to win Illinois anyway, so… boom, that year I too was a non-voter. We do not make this as easy as it needs to be, and most people are not as nerdily wrapped up in U.S. politics as I am.
Second, sympathy for those so disillusioned by the process or our politics that they cast protest votes — to a point. There’s something really hypocritical about telling people to vote as if their lives depended on it, vote to save democracy… then also tell them that they have to rally around a candidate or party they may not like, because at least they’re not horrible. I don’t want to still be mad at Nader voters in 2000, or Gary Johnson voters in 2016, or Bernie voters from the ‘16 and ‘20 primaries. It’s not their fault that our system grants massive structural power to two major parties, one of which in turn has massive structural advantages over the other. It’s a fucking mess. I understand wanting to exercise democracy, even though our system kinda punishes it.
But, third, I am still mad at those third-party or protest voters. I am mad at non-voters. I am mad that, for my entire adult life, politics has been almost entirely a game of motivating base voters and encouraging turnout, because the true opponent is never the other candidate, it’s folks staying home. In our system, when you don’t vote you’re not abstaining, you’re handing your political power to whoever wins the larger share of people who show up. I know it’s contradictory, and maybe hypocritical, but in order for folks to be free to vote for whatever gonzo candidate or platform they want, first they need to vote for someone like Biden, then raise hell at him about voting reform.
And, lastly, I’m mad at all the ways that people who want to vote simply can’t, or who do vote but their votes are erased by our fucked up system.
Voting is a right, a privilege, and a duty
Last week my 6-year-old daughter walked in while I was listening to a NYT The Daily podcast about the Electoral College; she was shocked when the guest said only six states truly choose the President. She asked me why, and I explained a bit, and then (because she’s 6, and doesn’t know that it’s a bad thing for only six states to choose) I told her that it was unfair because it means Trump voters here in New Jersey don’t get a say in whether Trump gets re-elected.
Don’t get me wrong—I do not want Trump to win. But Trump voters here, as horrible as I find their candidate, have common cause with Biden voters in my home state of Alabama, who will cast ballots that have zero chance of affecting the outcome. Democrats in Wisconsin are stuck with a Republican legislature basically forever — SCOTUS is one of the few entities in America with the power to impose change on states, and as they’re showing us this year, they consider hyper-gerrymandered legislatures like Wisconsin’s every bit as legitimate as the others.
All of us need to prioritize voting. We need to vote now (especially if you haven’t yet — vote right fucking now, in person if possible), but also next year, in two years, in four, and beyond. Voting rights and, probably more importantly, fair and easy voting access need to be a major issue that Democrats prioritize.
We can’t afford for every election to keep coming down to who can get out the vote. That’s ultimately a war of attrition; every time we take our eyes off the ball, Republicans swoop in, steal the ball, run all the way down the field with it, and next thing we know some Federalist Society assholes have been lifetime-appointed to the bench and are using the world’s tersest basic law to argue that acknowledging LGBTQ rights infringes on some asshole cake baker’s freedom of religion.
Many friends are standing in hours-long lines in places like NYC and Chicago to make sure their voice will be heard this time. I’m glad they’re doing it, but if we succeed and Trump is indeed defeated, we should accept no congratulations for how deep we dug to make it happen. People having to stand in 2-hour lines in the bluest of blue cities to vote is really really bad, whether it’s the result of bad actors in red states trying to suppress Democratic votes, or because of corrupt or incompetent election agencies not giving a shit.
I don’t know how we do it, I barely know who needs to hear it, and I know that it seems far less urgent than COVID, economic recovery, or climate change. But voting access and equity needs to be at least as important to the next non-asshole U.S. administration as those are. So, yes, vote. But then, however it goes, keep voting, encourage others to vote and keep voting, and if you’re able, put whatever pressure you can muster on leaders and lawmakers to protect voting rights and improve voting access.
When the dust finally settles on this election and this hell year, we’ll still be living in a democracy that’s a work in progress. And it’s true, and fair, that decisions are made by those who show up — so we’ve got to show up, keep showing up, and then we’ve got to make it easier, safer, and fairer for everyone to show up, and enshrine those as basic rights that cannot be easily dismissed.
Whew. That’s all for now. I’ll be back on Sunday with more old memories and cocktail recipes.