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Thursday, May 21, 2020

Why Does Trump Want To Stop People From Voting by Mail?

By Jacob Sullum - May 21, 2020 at 02:00PM

Donald Trump, a longtime fan of double standards, conspiracy theories, and imaginary presidential powers, pulled off a trifecta yesterday with his comments about absentee voting.

"Michigan sends absentee ballots to 7.7 million people ahead of Primaries and the General Election," the president tweeted on Wednesday morning. "This was done illegally and without authorization by a rogue Secretary of State. I will ask to hold up funding to Michigan if they want to go down this Voter Fraud path!" In a rare concession to reality, he amended that tweet in the afternoon, replacing "absentee ballots" with "absentee ballot applications," which are what Michigan Secretary of State Jocelyn Benson actually sent to registered voters.

Trump is also upset about absentee voting in Nevada. "State of Nevada 'thinks' that they can send out illegal vote by mail ballots, creating a great Voter Fraud scenario for the State and the U.S.," he tweeted in the morning. "They can't! If they do, 'I think' I can hold up funds to the State. Sorry, but you must not cheat in elections."

Since Trump himself voted by absentee ballot in Florida's presidential primary two months ago, you might wonder why he wants to deny Michigan and Nevada voters the same opportunity, especially at a time when COVID-19 fears might make people reluctant to gather at polling places. And why those states specifically, when five states (Colorado, Hawaii, Oregon, Utah, and Washington) conduct elections almost entirely by mail, while 28 others require no special justification for absentee voting? You also might wonder why Trump views voting by mail in those states as illegal, cheating, or a form of voter fraud. In any case, why does Trump think he has the authority to punish states for election procedures he does not like by withholding federal funding?

Those are all good questions. Unfortunately, there are no good answers.

Michigan and Nevada are both battleground states where the margins of victory were small in the 2016 presidential election. Trump won Michigan by fewer than 11,000 votes, about 0.02 percent of the ballots cast. Hillary Clinton won Nevada by about 27,000 votes, 2.4 percent of the ballots cast.

Are Democrats more likely to vote by mail than Republicans? Trump certainly seems to think so. In a March 30 interview on Fox News, he criticized COVID-19 legislation proposed by House Democrats that would have required states to allow "no excuse" absentee ballot applications and, if an election is held during a national emergency, to send every registered voter a mail-in ballot. "The things they had in there were crazy," Trump said. "They had things—levels of voting that, if you ever agreed to it, you'd never have a Republican elected in this country again."

Notwithstanding that dire prediction, the evidence concerning the partisan impact of voting by mail is mixed. Pantheon Analytics found that switching to mail-in ballots in Colorado gave a slight advantage to Republican candidates in 2014, while that change in Utah gave a slight advantage to Democrats in 2016. In both cases, voting by mail increased participation in the election, as you would expect. But contrary to the fears often expressed by Republican politicians, that turnout boost does not seem to consistently favor Democrats. In 2016, for instance, 15.5 percent of registered Republicans who voted in North Carolina used mail-in ballots, compared to 8.8 percent of registered Democrats.

Thad Kousser, chairman of the political science department at the University of California, San Diego, notes that mail-in ballots are especially appealing to older and rural voters, who are more inclined to vote for Republicans. He also cites California data indicating that black and Latino voters, who tend to favor Democrats, are less likely than whites to vote by mail. "There are still Republicans elected in many of the areas that have voting by mail," Kousser told The New York Times last month. "Democrats and Republicans alike appreciate this option."

Trump did not explain why he thinks absentee voting in Michigan or Nevada is illegal. "No excuse" absentee voting in Michigan was authorized by a 2018 ballot initiative. "I'm dumbfounded that this is controversial," Benson said on MSNBC last night, "especially because there are Democratic and Republican secretaries of state doing just what we're doing here in Michigan."

Nevada Secretary of State Barbara Cegavske was similarly puzzled, saying she "lawfully declared the 2020 primary election as a mail-in election" in response to the COVID-19 pandemic. She notes that a federal judge, responding to a challenge by a conservative group, recently agreed that she "lawfully exercised authority granted to her by state law to call for a primary election conducted primarily by mail ballot."

What about Trump's claim that absentee ballots enable voter fraud? The issue is a personal obsession for Trump, who implausibly blamed massive fraud for costing him his rightful popular-vote victory in 2016. Even if we charitably treat that concern as distinct from the unsubstantiated fear that mail-in ballots favor Democrats, there is little evidence that voter fraud is a substantial problem, regardless of how people cast their ballots.

While it's true that voting by mail is especially vulnerable to fraud, such incidents are still highly unusual. "Election fraud in the United States is very rare, but the most common type of such fraud in the United States involves absentee ballots," Rick Hasen, an election expert at the University of California, Irvine, law school, told the Times in April. "Sensible rules for handling of absentee ballots make sense, not only to minimize the risk of ballot tampering but to ensure that voters cast valid ballots." The five states where voting by mail is the norm "report very little fraud," the Times notes.

Even if wide absentee voting were a conspiracy by Democrats to get a leg up on Republicans through increased turnout and rampant fraud, would the president have the power to fight back by denying federal funding to states that make it easier to vote by mail? "If the president is able to impose his own new conditions on federal grants to states and localities, it would be a serious threat to both federalism and separation of powers," George Mason law professor Ilya Somin warns in a Volokh Conspiracy post. "The vast expansion of federal spending and state dependence thereon during the coronavirus crisis has made this an even more serious danger than before."

Somin notes that "the extent of mail voting is one of of many aspects of election administration that the Constitution largely leaves to state governments." He adds that "the Constitution gives Congress, not the president, the power to allocate federal spending, including imposing conditions on state and local government grant recipients."

In case constitutional considerations do not suffice, Somin urges Republicans to imagine the possibility that their party will not always control the White House. "If the president can get around such restrictions and impose his own new conditions on federal grants to state government, he could use that power to bully states and localities on a wide range of issues," he writes. "Conservatives who might be happy to see Trump wield that authority should ask how they would feel when Joe Biden (or some other future Democratic president) does the same thing. The same tools Trump uses to pressure blue and purple states can easily be turned against red states."


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