By Kenneth Tiven in USA
More than four days before the actual election date, the early voting and mail-in ballots have surpassed more than 50% of all the votes cast in 2016. The exact number is difficult to calculate because mail-in ballots are at unusual levels because of the pandemic impact on behaviour. And 50 states track this early voting in various ways before the final count. It simply never mattered before 2020. Republicans, already worried about President Donald Trump’s re-election, understand that the turnout of voters under age 27 is unprecedented and assume it breaks heavily Democratic. Concurrently, Covid-19 infections are spiking just as the Administration declares victory in the war against the virus.
The GOP leadership, which has for months organised lawyers and legal rationales, moved quickly to the Supreme Court seeking expedited review as states have added days for counting all the mailed paper ballots. In a decision involving North Carolina, the Justices voted 5-3 to let stand a state board of elections decision extending the counting period from three to nine days. Ballots must still be received or postmarked on or before Election Day.
In a similar case from Pennsylvania that state can add three days. However, in a Wisconsin case, the high court ruled no days could be added. The specifics of each case were slightly different. States are not required by law to report the final totals and Electoral College totals until December 13. President Trump’s drumbeat demand to know on the evening of November 3 who won based on news reports is not a legal issue, but merely a reflection of how television coverage has evolved. In close elections, the winner often is not known for days as votes are checked and recounted.
Chief Justice John Roberts and Justice Brett Kavanaugh joined the three liberal justices in the majority in the North Carolina case. Three conservative justices, Alito, Gorsuch and Thomas, dissented. Amy Coney Barrett the newly confirmed Justice did not participate.
Perhaps the best way to understand the constant legal jousting going on over the American national election is to think about cricket. While the shape of the field may vary, the pitch is fixed as a rectangular area of ground 20.12 metres in length and 3.05 metres wide, bounded by creases and stumps. Field shape influences the fielders, bowlers and batsmen. If the length of the pitch varied greatly, it would create enormous issues for batsmen and bowlers. As it is, groundskeepers work to favour the home team bowlers by manipulating the composition of the pitch dirt and its moisture level. But differences in length would complicate life for everyone, including umpires and the decision review system (DRS). (Tennis is one of the few sports where measurements are set but the playing surface varies enormously–grass, clay, and hard composition materials.) The point here isn’t the precise difference but the reality that differences pose monumental problems of fairness.
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Now, let’s look back at the US national election. The singular fixed element is the date on which it officially takes place, always the first Tuesday after the first Monday in November. Everything else is left up to regulations created by 50 different states. Almost every state delegates the actual operation of voter registration and Election Day activities to local governments, which design the ballot for that jurisdiction and decide on the type of machinery to count votes. The political party that controls a state has considerable ability to help its own candidates. Often the ratio of voters to a polling precinct is much higher where they have fewer likely voters, while areas where their supporters live have a low ratio, meaning less time in line. Some states have specific rules for placement and ratios.
Voter suppression tactics have a long and varied history in the USA. For example, Georgia, which has a Republican governor but Democratic registrations are gaining strength, so the state cut a week off early voting and cancelled early voting on the Saturday before the Tuesday election. The obvious intent is to make it harder to vote, especially for working class and low-income voters who tend to favour Democratic candidates and policies.
In 2016 about 139 million people voted, yet almost 92 million eligible Americans did not vote. This year after four years of a very partisan president and a pandemic, fewer people are disinterested. More interest means more participation, but barriers to registering and to voting must be eliminated. There is almost no verifiable data on voting fraud, though it is a hot topic for Republican-controlled legislatures that have added ID requirements. There is no required national ID for American citizens. In the last two decades, several states have created automatic voter registration as part of acquiring a driving license. However, in urban areas fewer and fewer people are driving these days.
When the federal government enacts legislation protecting voting rights, some states complain this violates the “equal sovereignty of the states,” a concept with no textual basis in the constitution. In fact the 15th Amendment in 1870 says that the “right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.” Through the use of poll taxes, literacy tests and other means, Southern states were able to effectively disenfranchise African Americans. It would take the passage of the Voting Rights Act of 1965 before the majority of African Americans in the South were registered to vote. The Supreme Court in 2013 in Shelby County v. Holder gutted the Voting Rights Act leading to all sorts of voting obstacles being invoked by states.
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