Another day, another Trump campaign lawsuit to force Americans to cast their votes in person during a viral pandemic.
Last week the campaign sued Pennsylvania alleging that ballot drop boxes violate the Equal Protection Clause. Yes, really.
The week before, the president called a mail-in voting law enacted by both houses of the Nevada legislature and signed by the governor a “late night coup” and filed a claim to have it overturned on grounds that it postponed the election by counting ballots received after November 3.
And now it’s New Jersey’s moment in the sun (or at least the orange glow of a tanning bed) with a lawsuit contesting Gov. Phil Murphy’s emergency executive order that ballots be mailed to every registered voter.
As in the Nevada suit, the New Jersey complaint points to a handful electoral fraud prosecutions as evidence that the crime is both widespread and hard to detect. Which isn’t entirely logical, but when you’re accusing your opponent of a “brazen power grab” to “dilute the votes of honest citizens and deprive them of their right to vote in violation of the Fourteenth Amendment,” fact-free histrionics are kind of the point.
Here again the Trump campaign makes the argument that mail-in voting, which is supposedly rife with fraud, violates the Equal Protection Clause by diluting the voice of “real” voters. To prove that fraud is endemic, the Trump campaign refers to an Asbury Park Press investigation which “found a full 2,460 active voters who had been dead for at least five years, and nearly sixty of them had apparently cast votes after they died.” No link is provided, but a simple Google search kicks up the source article which reaches the exact opposite conclusion, finding that voter fraud is vanishingly rare. Most of the cases kicked up by the Asbury Park Press when it compared the Social Security Death Index to the state’s voting rolls could be attributed to clerical error or mistake, such as a son with the same name as his father inadvertently voting under his father’s name.
Not that the Trump campaign would seek to deceive the court. Perish the very thought!
How does the existence of in-person “fraud” militate in favor of forcing voters to cast their ballots in person? The plaintiff doesn’t say! Nor does it explain how cases of vote buying under the state’s existing absentee ballot system will be prevented if Gov. Murphy were enjoined from sending out ballots to all voters.
But the campaign is certain that Murphy’s order is unconstitutional and violates the Constitution’s Elections Clause by usurping the power of the state legislature to determine the time and manner of elections. Murphy’s order specifically cites several different emergency powers conferred by the legislature, but none of those use the magic words “we hereby grant the governor the right to make voting safer during a viral pandemic which has killed almost 16,000 New Jersey residents already,” so obviously the governor’s move is an assault on the Constitution itself.
The order specifically attempts to prevent fraud by forcing those who do choose to vote in person to cast their ballots provisionally so their names can be compared to a list of ballots cast by mail, but here again the campaign infers sinister motive. In a Wall Street Journal editorial, deputy Trump campaign manager Justin Clark decries the relegation of in-person voters to “second-class status” and warns darkly — but without evidence — that “Citizens who want to vote in person face a real threat that their ballots won’t be counted.”
The pleading itself goes even further down the rabbit hole, with an exercise in bootstrappery that PROVES! … err “proves” that this anti-fraud protection measure actually violates the Equal Protection clause.
See, if every in-person vote is cast by provisional ballot, then more provisional ballots will be cast.
And if more provisional ballots are cast, not only will in-person voting take longer, but counting those votes will also be delayed. (Forget about the fact that lines will be shorter at polling stations because everyone will have already voted by mail, that’s not important now!)
And if there are lots of provisional ballots, “It will be impossible for county officials to properly inventory, transport, and canvass the massively increased volume of provisional ballots by the prescribed statutory process.”
And if counties are overwhelmed by all those provisionals, they will obviously resort to “arbitrary and varying procedures” to count the votes.
And if counties are taking shortcuts, then obviously they will do it willy nilly, which violates the Equal Protection Clause.
So obviously Democrats are trying to steal the state of New Jersey from Donald Trump, who lost it in 2016 by 14 points, by allowing voters to cast their votes by mail.
Complaint for Declaratory and Injunctive Relief (Donald J. Trump for President, Inc. et al v. Phil Murphy, et al, No. 3:20-cv-10753 (D.N.J., August 18, 2020))
Elizabeth Dye lives in Baltimore where she writes about law and politics.