Many election operatives know that elections are won or lost because of process. For decades, one side has been focused on policy, big ideas, and winning debates. Meanwhile, the other side has been focused on process and the rules of the elections game. (Image source: iStock)
In the wake of the 2020 election, states across the country enacted laws to try to prevent a repeat of the chaos from that election. In some states such as Arizona, Texas, and Florida, laws were passed to prohibit the private funding of election offices. In others, ballot custody vulnerabilities were addressed, such as limits on harvesting and drop-boxes.
Predictably, an enormous litigation apparatus attacked nearly every post-2020 election reform in federal or state court. Too often, they were successful.
Arizona, for example, enacted legislation to ensure that only citizens are registering and voting. No sooner had the ink dried on Governor Doug Ducey's signature, than the state was hit with a federal lawsuit by Mi Familia Vota, an organization dedicated to "build[ing] Latino political power by expanding the electorate...." This promises to be another example of trench warfare-style litigation ultimately decided well into the future.
Before you think these sorts of lawsuits are frivolous, consider the fact that every lawsuit like it brought against other states has effectively won to the expense of election integrity.
Additionally, governors in five states – Pennsylvania, Wisconsin, North Carolina, Michigan and Louisiana -- have vetoed legislation that would have banned or restricted the Mark Zuckerberg-style private funding of elections.
Kansas thought it could require documentary proof of citizenship in order to register to vote, but after a disastrous trial, a Republican-appointed federal judge ruled against Kansas in 2018. There was also no salvation on appeal to the United States Court of Appeals for the 10th Circuit, where, again, a panel that even included Republican-appointed federal appeals judges ruled against Kansas for not being able to demonstrate a data-driven justification for the law. The Supreme Court decided against taking up the matter, and Kansas taxpayers had to pay the victorious ACLU's court fees.
The big news on election integrity however, now comes from Florida. There, a federal judge recently wrote a 288-page opinion striking down SB90, an election integrity overhaul package passed in the wake of the 2020 election.
The omnibus law tried to do a number of important things.
First, it required that mail ballot drop-boxes be monitored. These resemble outdoor mailboxes where, during the 2020 election, the huge increase in mail ballots were delivered. The purpose of monitoring was to ensure the security of the ballots inside those drop-boxes.
Second, SB90 prohibited third parties from engaging with voters within 150 feet of the drop-boxes. This extended the usual zone of protection found near polling places also to include drop-box locations.
Third, Florida had been allowing a vote-by-mail request in one election to carry over to a subsequent election. The problem is that the voter requestor may die or move away by then, and a ballot would be floating around with no voter at the address ready to receive it. SB90 shrank the longevity of a vote-by-mail request from two elections to one.
Fourth, SB90 required voters requesting an absentee ballot to include verifying information that the request really came from the voter. That could include the last four digits of a Social Security number. The number would be verified before an absentee ballot was sent in the mail.
After a trial, United States District Court Judge Mark E. Walker in Tallahassee shredded SB90's new provisions.
Walker ruled that the requirement that drop-boxes be monitored resulted in fewer drop-boxes, and had a discriminatory impact on black voters who particularly use them. Walker heard evidence to this effect, and to the extent that rebuttal evidence was presented, Walker certainly did not find it noteworthy enough even to mention it in his opinion.
Fifth, Walker ruled that the prohibition on engaging with voters near a drop-box infringed on First Amendment rights. The limit on a vote-by-mail request rollovers shrinking from two elections to one election was found to be a violation of the Voting Rights Act because black voters particularly use mail voting.
On the other side of the ledger, the court did uphold the requirement that voters requesting a mail ballot provide a unique number that could be used to verify that the request was authentic. The court reasoned that, if anything, whites are hurt by this requirement more than blacks.
Apparently that makes it okay, at least to Judge Walker.
Mi Familia Vota was not the only not-for-profit group to sue over SB90. The case had a veritable dogpile of other groups attacking the law, including the League of Women Voters of Florida Inc., League of Women Voters of Florida Education Fund Inc., Black Voters Matter Fund Inc., and the Florida Alliance for Retired Americans Inc.
These groups might sound non-partisan. They are not. The Florida Alliance for Retired Americans, according to InfluenceWatch.com, is a big labor front group. Their purpose is to advance "left-progressive policy at the local and state levels while mobilizing retirees to be active in informing and activating their communities." According to federal records, they are funded by the AFL-CIO, the postal workers union, the SEIU, and the Amalgamated Transit Union. The latter is apparently the organizing arm of employees of ever-agitating government-run public transportation systems such as SEPTA in Philadelphia.
By now, you might be wondering, what do transportation workers and your postman have to do with voting issues?
Everything. Many election operatives know that elections are won or lost because of process. For decades, one side has been focused on policy, big ideas, and winning debates. Meanwhile, the other side has been focused on process and the rules of the elections game. One side is moving minds, the other side bodies and ballots.
Many groups have been using federal civil rights laws such as the Voting Rights Act of 1965 as a weapon to help advance partisan interests. Elect more Democrats, they assume, then transit workers get more pay during the next collective bargaining round. Strike down laws against bothering voters within 150 feet of a drop-box, then, as I witnessed firsthand in 2004, the SEIU can flex its muscle around the polls and make it uncomfortable for some voters to vote.
Under Florida's SB90, voters near drop-boxes were protected from the strong arms of this SEIU theatre, but not anymore thanks to Judge Walker's ruling.
All of this should demonstrate that a war is taking place around elections that has nothing to do with voting machines being controlled by Italian satellites or Internet hackers. They don't need to be.
Election process fights have become a Darwinian "survival of the fittest." Whichever side can adapt to a new technological or cultural environment the fastest and the best often determines who wins and who loses.
In 2020, an unprecedented burst of mail ballots swamped election offices because of the fright of COVID. All over the country, judges struck down or suspended laws that would have ensured that those mail ballots were processed according to the law. At the same time, hundreds of millions of dollars in private money poured into election offices to change the way the elections were run.
The reaction in many states in 2021 -- Arizona, Florida, Texas, Iowa -- was to adapt, ban private money, and strengthen safeguards. Unfortunately, these cures faced an even more powerful "Darwinian" response -- the well-established, often partisan control of the judiciary. Courtrooms became the forum where experienced killers of election integrity law went to hunt.
Lawyers trying to protect the integrity of elections -- many of whom have never tried a civil rights lawsuit related to election process before -- usually find themselves out manned and out-gunned by a battalion of well-funded lawyers whose job it is not to make sure that elections provide an even playing field for everyone, but that the group that hired them maintains, if possible, an advantage. It is a dangerous place we find ourselves, where citizens through the democratic legislative process are enacting safeguards to keep our elections clean and manageable, and a hyper-funded partisan onslaught has mastered the art of killing real, verifiable, integrity in elections.
What does this mean for 2022 and beyond?
First, do not assume there will be a "red wave" this November to serve as a cure-all. Many election operatives have demonstrated a fierce ability to adapt and leverage cultural and technological awareness into electoral wins.
Second, a "red wave" cannot overcome the "blue wave" tactics of 2020 seen in urban areas flush with outside cash. The threats of private money, dispensing with statutory election procedures through litigation, and renewed COVID hysteria each loom in 2022.
Third, the Biden administration is already turning the battleship of the entire federal government toward turnout in 2022. They have mobilized every single agency into a weapon to increase voter turnout among "historically marginalized communities." Decoded, that means racial groups. This is all happening with little fanfare, and little means to stop it.
It means every federal agency has had a year-long head start into morphing into a get-out-the-vote tool. It means housing, welfare, and education offices will be turned into turnout machines. Institutions have adapted and created an architecture using the powers of the state to target certain voters and get them to the polls.
"Isn't that illegal?" some voters might cry. Cite me the statute please. What law makes it illegal to try to get historically underserved communities to the polls? And, who can argue with a straight face that it is a bad thing to encourage Americans to vote? This is the deviousness of those designs. Election operatives develop tools that appear facially neutral but that can be used to have a partisan impact. They then use the power they have to ensure that they have more power, longer. The tricky legal questions are thought-through long before you have time to even get annoyed.
For good measure, the Biden administration proposed a $10 billion federal fund available for the next decade to replicate and expand the cash injections to election offices like those seen in 2020. Another $5 billion is requested for the U.S. Postal Service so it can expand its role in voting-by-mail. Even if the administration gets a fraction of that request, it will make the $500 million spent in 2020 from private groups to increase urban turnout look like small potatoes.
What can be done? The power of the purse in the House is in the hands of the Speaker of the House, presently Nancy Pelosi. No court will ever invalidate a federal effort to encourage voting. Citizens can and should sign up to work at the polls. You can make sure you vote and deliver your ballot yourself. Sadly, there is no silver bullet.
Sure, we can win some victories, as my organization did when it stopped Virginia from accepting mail-in ballots late, with no postmarks, in violation of state law.
Perhaps most of all, we can start to pay close attention to the fights going on behind the scenes -- the process fights. For so long, we have rightfully cared about policies such as taxes, government spending, education, and energy. We try to move heart and minds. But others put policy second: they are worried about whether process helps or hurts their ability to move bodies and ballots. Process is driving the outcomes of policies; it is time to fully engage before our ability to engage at all is extinguished.
J. Christian Adams is President of the Public Interest Legal Foundation, the nation's only public interest law firm dedicated wholly to election integrity. He served in the Voting Section of the United States Department of Justice and currently serves as a commissioner appointed by President Trump on the United States Commission on Civil Rights.