What It Means to Be Able to Vote

Kamala Harris speaks (or spoke, depending on when you’re able to read this) tonight at 7 p.m. ET from the same location in Washington D.C. on the Ellipse that Donald Trump used to summon his crowd to the riot at the Capitol. “Fight like hell,” he told them. Needless to say, that will not be the Vice President’s message. We are told in advance that she will say, “I don’t believe people who disagree with me are the enemy. He wants to put them in jail. I’ll give them a seat at my table,” according to her spokesman Ian Sams. She will “pledge to be a President for ALL Americans.”

But only if she wins. There is no doubt that Kamala Harris believes that decisions about who should lead the country are up to the voters. That is not Donald Trump’s approach.

If your strategy for winning an election is to keep people from voting for your opponent and to keep their votes from being counted if they’re able to cast them, then you’ve abandoned democratic values. In this country, the agreement we make with each other is that the candidate who gets the most votes, or in the case of the presidency, wins the Electoral College, wins the election.

But Trump’s party has abandoned those principles. While it's fair to be concerned with ensuring that only eligible voters participate in the election, that’s not what Trump and the Republican National Committee have put in motion. With no evidence to support the allegation, Trump has begun to inject a new Big Lie into the nation’s bloodstream, the one that claims people who aren’t American citizens are voting and will influence the outcome of the election. It’s a convenient fit with the frenzy Trump tries to whip his base into about “illegal aliens.”

The RNC has now lost cases in Alabama and Virginia, with both the Eleventh and Fourth Circuits rejecting their claims. The Virginia case has now gone up to the Supreme Court.

It’s worth repeating some of our conversation about why these claims are meritless. This is from one of our early discussions of the Virginia case:

It’s already illegal for noncitizens to vote. And there’s more:

• The Brennan Center studied 42 jurisdictions in connection with the 2016 election and found that out of 23.5 million votes cast, there were only about 30 cases of potential noncitizen voting.

• In 2022, Georgia Secretary of State Brad Raffensperger audited state voter rolls in an effort to find noncitizens. He determined that 1,634 ineligible noncitizens attempted to register. But that was over a 25-year period, and election officials caught all of the applications. None of the individuals successfully registered to vote in Georgia.

• A North Carolina audit in 2016 found 41 legal immigrants—not people who lack legal status to enter the country, which is Trump’s complaint—who had not yet become citizens but voted nonetheless. This was out of a total of 4.8 million ballots cast. At least some of the cases involved confusion on the part of the ineligible voter, but the numbers were far too small to impact the election.

• It doesn’t make sense for noncitizens to intentionally violate the law and register, risking prison and deportation, knowing that their vote won’t influence the outcome of the election.

The myth that Democrats can only win elections because of voter fraud didn't start with Donald Trump, but he has put it on steroids, claiming falsely—as every court to consider the substance of the matter following the 2020 election concluded—that fraud tainted the election and it was stolen from him. Republicans have been using the fraud argument to justify implementing measures that made it more difficult for likely Democrats to vote, imposing unduly restrictive voter ID acts, like the one in North Carolina that led the Fourth Circuit Court of Appeals to conclude in 2016 that ID requirements “target African Americans with almost surgical precision.”

In a Texas case, Veasey v. Abbot, a federal judge ruled in 2017 that the state’s voter ID law, passed under the pretense that it was combatting voter fraud, purposefully discriminated against African Americans and Latinos. The Fifth Circuit rejected that conclusion, which was based on a detailed review of the evidence conducted and meticulously documented in a written decision. The Supreme Court declined to take the case.

I’ve written before about how painful it is, as a lawyer and especially as someone who spent part of her career at DOJ running an appellate division, to lose confidence that the courts are acting in good faith. But the one-two punch from the Fifth Circuit and the Supreme Court is something we’ve seen time and again, although in 2017, it was still new enough to be shocking and appalling. And when it comes to pushing the myth of voter fraud, it has been difficult to see the courts playing a part, even though they held against Trump’s efforts to overturn the election in 2020.

Study after study confirms fraud doesn't taint and certainty doesn't impact the outcome of elections. In 2014, The New York Times ran a piece titled, Voter Fraud Is Rare, but Myth Is Widespread. Things have not changed since then. The Brennan Center dissected the myth after the 2020 election and found it entirely lacking. Studies done over time have found “virtually nothing” to support the myth, with one finding 31 credible instances of voter impersonation out of more than 1 billion votes cast between 2000 and 2014, although some of the 31 may have just been clerical errors.

However, Trump and his party persist with disproven claims: claims about noncitizens voting in Alabama and Virginia, a Mississippi case where the Fifth Circuit has just gotten on board to limit counting of mail-in ballots. All of these measures are about trying to skirt the fundamental precept in our democracy that the winner of the election gets the job.

We have learned from 2020. The Electoral Count Reform Act was passed in 2022 with bipartisan majorities in both houses of Congress. The amendment makes clear that Trump’s fake electors scheme was illegitimate. But the bipartisan spirit does not extend to this year’s election.

It’s a lot easier to push a false narrative that an election was “stolen” because of “fraud” when that vote is close. That is why turnout is so important in this election. That’s why a candidate who wants to deflect a loss if that happens is desperate to keep turnout down. That’s why, just like in 2020, if the count isn’t complete Tuesday evening, Trump will inevitably turn to complaints of fraud.

In 2020, as record numbers of Alabamians prepared to vote by mail due to the pandemic—normally, and again this cycle, we vote only in person on election day or absentee under very restrictive conditions—I wrote a piece encouraging people not to worry if the election results were slow to come. In light of everything that happened, it seems impossibly naive to have written those words now as I reread them, but there is still truth to them:

Many “results” on Election Night are media projections based on exit polling. That type of educated prediction is much more difficult when significant numbers of people vote by mail. Be skeptical of campaigns that claim victory before the actual results are tallied.

Without meaningful exit polling, and with the time it will take to physically count the huge number of paper ballots that will be mailed, it will take more time to get complete results.

Will that be frustrating? Sure! Will it provide an opportunity for some candidates to criticize the delay and claim the delay means there is fraud? Absolutely.

But a slow count means a careful, accurate count. It also means that many, many citizens have chosen to exercise their right to vote in a way that’s safe for themselves and their communities. That’s exactly how we want our elections to work. Getting it right is more important than getting it fast.

As in 2020, we face unique challenges. More people are voting by mail—a remnant from the pandemic. That’s a good thing; it makes voting more accessible for more people. We also have fewer poll and election workers in some places, a sorry reminder of the threats made against them in 2020 and again this year. It’s possible we will have an outcome on Tuesday evening, but if majorities are razor thin in key states, it’s also possible it could go until the end of the week when provisional ballots can be counted and states that permit ballots postmarked by election day but received later will take a look at them.

So, it’s important to underline that a slower count has nothing to do with accuracy or legitimacy of the process. If the count is slow and Trump claims it means that it’s creating time for fraud to happen, he should be immediately forced to come up with evidence to support that claim. He’s made it too often, too far in advance of elections and before a single ballot has been cast, to give him any credit of doubt.

In September, Trump told the Fraternal Order of Police in a speech to “Watch for the voter fraud, because we win without voter fraud, we win so easily.”

“We have to vote and we have to make sure that we stop them from cheating, because they cheat like dogs,” he said in Atlanta in August.

But of course, in Trump’s world, there is only fraud if he loses. No fraud in 2016 but massive fraud in 2020. Of course, no explanation for the downballot races Republicans won that year, including victories in the House and the Senate. And now he’s at it again.

Trump has a strategy for losing, not a strategy for winning. And it’s profoundly anti-American. But because we live in a world where Trump always gets a pass, far too many people are willing to look past it and look past the facts—it’s just Trump; he doesn’t really mean it; maybe there was fraud? I know we won’t do that here, so let’s get ready to vote, to help others vote, and to be smart consumers and sharers of facts.

I still believe in America. I hope you do too, and if you aren’t already, that you’ll subscribe to the newsletter and stick around!

We’re in this together,

Joyce