Should Dems go to war with Trump over mail-in voting? The answer isn't as easy as you might think
The hideous mess of an election held in Wisconsin last week was a haunting preview of what may be visited on Americans in November. Wisconsin is but a single front in Republicans’ all-out, multi-state battle to limit changes that might preserve voting access in the age of COVID-19. With Donald Trump digging in his heels – and dropping all pretense that these maneuvers are being pursued for any reason other than partisan advantage – a general election meltdown seems likely.
This is why many analysts have pleaded with the Democrats to draw a line in the sand: no further coronavirus relief bills will pass congress without a strong vote-protection program (surprise: Elizabeth Warren has a plan for that), featuring a mandate for universal vote-by-mail and funding to set it up in order to guarantee a free and fair November election.
It’s a tempting rallying cry, one that speaks both to Democrats’ desperation to end our national Trump nightmare and to the basic premise of American democracy. But should Democrats truly pull out all the stops on this? Weighing the arguments and reactions from experts, the answer seems to be a qualified yes, but with some major cautions. It’s not a slam-dunk.
There are four main arguments for a no-holds barred approach.
First, and most straightforwardly, Trump presents a clear and present danger to Americans and to our democracy. Newly published reports based on exhaustive investigations – summarized in this timeline – show that Donald Trump is personally responsible for creating much of the confusion, delay, and mismanagement of the federal government’s coronavirus response, which is continuing to cost American lives. It is hard to imagine a more important issue than preserving American’s ability to exercise their basic right to vote and to remove him from office.
“Democrats absolutely should not budge on moving any legislation until this gets done,” said communications expert Jeff Hauser, a veteran of the AFL-CIO and MoveOn.org. “There is nothing more fundamental to American politics than that there is a politics, that there is a democracy.”
Given the steady five or six point national polling lead for Joe Biden and the explosive turnout projections experts offered prior to the pandemic, Trump is clearly thinking that his best chance is to change the shape of the electorate through massively suppressed turnout. In turn, the Democratic – and patriotic – priority has to be to prevent him from getting away with it. “If Democrats have been preserving political capital for some moment, this is that moment,” said Hauser.
Second, the House is the only institution that can force Trump’s hand on this, and now is the time. Drawing a line on further relief legislation and daring Republicans to stop it is the only way to get this done. Democratic National Committee chairman Tom Perez acknowledged this week what has become painfully clear to legal experts: the courts, particularly the Supreme Court, will be “hostile” to expanded mail-in voting. With the executive branch under Donald Trump’s thumb and with his continuous purges of anyone who dares voice the public interest, the legislative branch is the only option.
Already, Senate Republicans have tried to jam the House on the next piece of coronavirus-related legislation by slicing out their top priority – further funding for small business aid – and forcing House Democrats to play catch-up. With the shell-shock of the original crisis receding and partisan tensions rising, the next relief bill may represent the last opportunity at must-pass legislation. Ryan McConaghy, who led issue strategy and message planning for Senate Democratic Leader Charles Schumer and the Democratic Caucus, notes that there is a little leeway to act, but not much. “Our economy is being fundamentally re-shaped, so for a while all the legislation is going to be must-do,” he said. “But as each bill continues the shift from emergency response to long-term recovery, the urgency and leverage do start to fade.”
Third, if the shoe were on the other foot, Republicans wouldn’t hesitate to play hardball on desperately needed relief funding. They certainly didn’t quibble in the last international crisis in 2009, when they refused to rescue Americans from a crashing economy until their demands were met.
Democrats tend to be highly attuned to the human cost of policy failures, which is why they have prioritized relief for ordinary people who can’t pay rent. While noble, that gives the GOP a structural advantage in these situations. One might argue that this time, Democrats need to get over it and call Trump’s bluff. For one thing, no single policy need in the current crisis matches the long-term human impact of a second Trump term. For another, Democrats may do the country and the people they care about a disservice by continually trying to save Republicans from their own mess (i.e., the President that they put and kept in office). Like a co-dependent relationship with a drug-addicted family member, the best way to limit the damage to everyone is often to stop enabling the addiction.
Fourth, the public supports Democrats’ position, for now. A Reuters/Ipsos poll found that “72% of all U.S. adults, including 79% of Democrats and 65% of Republicans, supported a requirement for mail-in ballots.” While other polls have shown less robust support, there is clearly some momentum on this issue in the wake of the images of beleaguered voters waiting on long lines coming out of Wisconsin. In addition, analysts have begun to notice a difference in infection rates between states that held primaries in March and neighboring states that didn’t, so it is possible that people may remain attuned to the threat, giving Democrats a chance to be on the right side of a life-and-death issue.
So what are the pitfalls? Three in particular stand out.
First, Donald Trump has been desperately trying to shift the blame for his failure onto governors, the media, China even President Obama. A big, partisan congressional fight that polarizes the issue of coronavirus relief could hand Trump a persuasive argument that he is not the one responsible for American suffering, not to mention a great way to change the subject away from the financial pain that most Americans are feeling. “With the economic turmoil, Trump and his allies will be eager to draw attention to other hot button issues,” said McConaghy. “He’s spoiling for this fight."
Trump also has a number of structural advantages in beating Democrats on messaging in a legislative standoff. One is his daily press conference, which gives him massive exposure and a direct communications channel that Democrats lack. A second is Fox News – a virtual coordinated messaging arm of the Republican party – which would be only too happy to amplify a message that Democrats are holding Americans’ health and safety hostage to a political agenda. A third is the time lag. Right now, Trump’s failures are fresh in the public mind, which is why the usual polling bump for leaders in a crisis has been so muted for Trump. In six months, perhaps following another wave of outbreaks, it will be much harder for voters to remember who caused which problem, especially if the waters are muddied by a partisan brawl over aid.
The good news, as Jeff Hauser points out, is that Trump is really only credible with about 45% of the public right now, and it’s quite possible that the problem could be further mitigated with a stronger messaging operation from Democrats. “A daily Democratic press conference coordinated among Biden, Pelosi, and Schumer would get a lot of coverage and while it wouldn’t match what Trump gets, it would be a huge improvement,” he said. Ryan McConaghy agrees that Democrats could improve their communications position substantially by doing some fast legwork. “Democrats need to line up support from state and local election officials and secretaries of state – and especially Republicans – that helps them play offense on the front end, but also gives them critical validators to help play message defense as soon as this turns political, which it will.”
Another reason to be wary of going to the mattresses on this is that vote-by-mail is neither a panacea nor a lay-up. Even at the relatively small scale that voting via mail is now used, it creates a surprising number of problems. In 2008, experts estimated that “3.9 million requested ballots were never received; 2.9 million ballots mailed to voters were never returned; and 800,000 returned ballots were rejected.” People who vote from home are also more likely to make mistakes, and signature mismatches are a significant source of rejected ballots, especially for “people with disabilities, trans and gender-nonconforming people, women, people for whom English is a second language, and military personnel.”
Scaling up voting from home on a massive scale would be a major undertaking. The National Vote at Home Institute points out that 42 states will need at least some infrastructural changes. States that are currently operating mail-in systems have spent years purchasing the machines to count that volume of ballots and teaching voters how to fill them out – tasks that would be hard to get right in seven months during intermittent public lockdowns.
Rick Hasen, the former editor of the Election Law Journal who literally wrote the book on voting reform and protection, described it as a “state-by-state slog” – especially true because most Republicans and their secretaries of state have indicated their intention to throw sand in the gears every step of the way. Ryan McConaghy sounded a similar note about how hard it would be to navigate local challenges, recalling the pushback to an effort by then-Homeland Security secretary Jeh Johnson to deem voting systems as critical infrastructure in 2016. “Getting all of this set up in a scramble is going to be messy,” he said, “so you need states and localities to get on board, and they just won’t if it looks like a heavy-handed federal takeover.”
The bottom line is that even if Democrats get everything they want – and some experts have already compiled a list of the concessions they might need to make to do so – they may be getting a very partial solution, or trading one set of problems for another.
Finally, Democrats have to consider the importance of maintaining some legitimacy surrounding the election. Many have long speculated about Trump refusing to accept the results of a losing contest, trying to delay it, or otherwise attempting election-undermining skullduggery. An election conducted mostly by mail at a scale never attempted before would inevitably be rife with mistakes, thousands of rejected ballots, and legal challenges that would only add opportunities to claim the process was rigged. It could easily beget another 2000 Bush v. Gore situation and further undermine the public’s faith in the democratic process.
That isn’t an argument for Democratic inaction. But it does suggest some real peril for the public’s acceptance of the basic validity of our election system. At the very least, relying on mail-in voting at this scale will require significant forethought and planning. “I favor a congressional mandate for states to offer no excuse absentee balloting in November,” notes Rick Hasen. “But it comes with risks to both voter access and integrity and it has to be done carefully to preserve the legitimacy of the election.”
So the question ultimately comes down to whether it would be worth throwing down the gauntlet for mail-in voting and potentially taking blame for blocking desperately-needed relief during a crisis. There is no question about the importance of this fight in terms of protecting the functioning of American democracy. But Democrats who are concerned that reduced turnout helps Trump should recognize that it is not entirely clear how changes in voting patterns would affect the partisan outcome of the election.
Seniors are more vulnerable to coronavirus (and contrary to what some Republicans have said, not eager to sacrifice themselves willingly to juice the economy), have a higher voting rate, and give the highest Trump approval ratings. Young voters feel relatively safer, tend to have a lower voting rate in normal times, and are wildly Democratic leaning. So which party gains an advantage in a coronavirus-suppressed electorate? The truth is that while analysts generally assume that higher turnout helps Democrats, no one knows for sure what the pattern would be in this case, and it may have different impacts in different states (Florida Republicans, for example, greatly depend on mail-in votes, and might be disproportionately aided by expanded mail-in access). The New York Times even headlined their deep dive on the evidence, “Does Vote-By-Mail Favor Democrats? No.”
In addition, thirty-three states already allow no-excuse absentee voting, meaning that what they need is mostly resources to scale up, not a legal change. Of the remaining states that require an excuse to get an absentee ballot, only New Hampshire and Virginia qualify as true swing states, and the Secretary of State of New Hampshire has already indicated that vulnerability to coronavirus will be considered a disability and therefore a valid excuse.
Given the resistance from Republicans, there is at least an argument that Democrats should focus on increasing funding for the election rather than mandating access to mail-in voting. As Rick Hasen put it, “Given that Republicans have dug their heels in on [a mandate] and the President has spoken out, I see no realistic possibility that this will be part of congressional legislation…but increased funds are desperately needed, because the virus will make the November election much more expensive whether there is a congressional mandate or not.”
Where does all of that leave Democrats? Congressional leaders are likely to conclude that the stakes are probably too high for them to leave the issue to chance, despite the risks and challenges. As Jeff Hauser put it, “Democrats can’t act like they are afraid of their own shadow.” But they also need to go in with eyes wide open.