The Associated Press
ATLANTA (AP) — When some Georgia voters endured a pandemic, pouring rain and massive waits earlier this month to cast their ballot, President Donald Trump and other Republicans blamed local Democrats for presiding over chaos.
"Make no mistake, the reduction in polling places is a result of a concerted effort by Democrats to push vote-by-mail at the expense of in-person voting," said Justin Clark, the Trump campaign's senior counsel. "Nothing more and nothing less."
But the meltdown was also a manifestation of a landmark Supreme Court case that gutted a key provision of the Voting Rights Act. The 2013 decision — Shelby County v. Holder — was heralded by conservatives at the time for invalidating a longstanding "preclearance" process that required certain states and jurisdictions with high minority populations and a history of discrimination to get federal approval for any changes to voting procedures.
Seven years later, the fallout from that decision is colliding with unprecedented changes to the way elections are being conducted. In response to the coronavirus, many states are encouraging mail-in voting. That — combined with a reduction in poll workers — has prompted the consolidation of polling places.
That reduction would have been much harder to pull off in Georgia without the Supreme Court decision. Voting rights advocates are braced for more potential trouble on Tuesday when another round of states hold elections.
In Kentucky, the planned reductions in polling places are even sharper than Georgia, with fewer than 200 across a state that usually has nearly 3,700, prompting worries especially about the state's most populous cities where Kentucky's nonwhite population is concentrated.
Meanwhile, Trump has railed against voting by mail, arguing without evidence that it could contribute to fraud. Conservatives are trying to use an Arizona case over absentee voting to further weaken the Voting Rights Act. And concerns are mounting across the ideological spectrum that the changing nature of elections could leave some Americans questioning the result in November.
"Everything is happening at once right now," said University of Georgia law professor Lori Ringhand, citing the pandemic, states like Georgia moving to new voting machines and years of legal wrangling over racial discrimination and election security. "It's just a perfect storm happening in a political environment that has politicized the very act of making voting either easier or harder."
Democrats worry that the GOP goal is to make voting harder. Trump is especially critical of moves that would expand voting by mail and warned without evidence on Monday that foreign countries may try to print ballots.
"That's going to be Trump's mantra through September, October: 'They're going to try to steal the election!'" said Terry McAuliffe, the former Virginia governor and onetime Democratic National Committee chairman.
Georgia Democratic Party Chairwoman Nikema Williams said the anxiety among many in her party is a reminder that a full-strength Voting Rights Act is needed, though she accepts that federal law won't change before November.
"Your right to vote should not depend on your zip code, what county you live in," she said.
Joe Biden, the presumptive Democratic presidential nominee, has called for restoring the Voting Rights Act, but he has not released detailed proposals.
A key question is whether to attempt a new version of "preclearance" by updating the formula used to decide what states and local areas must submit to the process, since that formula is what the Supreme Court ruled impermissible. The path more likely to withstand the court's scrutiny, said Ringhand, is for Congress to set standards that apply nationally.
A White House spokesman declined to comment when asked whether Trump might ever pursue a Voting Rights Act update.
The previous requirements were a key voting rights tool because it turned a usual legal principle on its head. Litigants usually must wait until after some harmful action before asking a court for relief, but "preclearance" put the burden on government officials to prove their proposed election rules would not harm minority voters.
Kentucky, which is among the states holding primaries on Tuesday, had not been affected by that provision.
Voting rights advocates sued there anyway under the remaining law's general prohibition on discrimination, but a federal District Court ruled the overhauled precinct plan was allowable. That decision shows the difficulty citizens sometimes have in proving voting rights violations, especially when the challenge is theoretical, before an election has even taken place.
The burden could get even heavier if Republicans and conservatives get their way in an Arizona case. That dispute started with a challenge to the state's ban on "ballot harvesting," the practice of third parties rounding up absentee ballots.
A federal appeals court ruled against the law, using Section 2 of the Voting Rights Act. Congress spelled out in 1982 that it intended that part of the law to be applied as a "results" test, meaning courts would simply judge whether laws from elections procedures to district boundaries for elected posts had a discriminatory effect on minorities. Some conservatives now want the Supreme Court to rule that anyone challenging a law under Section 2 would have to prove that lawmakers intended to discriminate. That's a much higher burden of proof required to strike down a law.
In the meantime, Ringhand lamented that voters are displaying diminishing confidence that any of the authorities involved are truly interested in fairness.
"I'm not sure there's a great deal of trust in any of our decision makers right now, whether that's legislators or state judges or federal judges or secretaries of state," she said. "Trust is at an all-time low."
Mail voting: Do as we say ... not as we do
Vice President Mike Pence and a half-dozen other senior advisers to President Donald Trump have repeatedly voted by mail, according to election records obtained by The Associated Press. That undercuts the president's argument that the practice will lead to widespread fraud this November.
More than three years after leaving the Indiana governor's residence, Pence still lists that as his official residence and votes absentee accordingly. Education Secretary Betsy DeVos has permanent absentee voting status in her home state of Michigan.
Brad Parscale, Trump's campaign manager, voted absentee in Texas in 2018 and didn't vote in the general election two years earlier when Trump's name was on the ballot.
Two other senior Trump campaign officials — chief operating officer Michael Glassner and deputy campaign manager Bill Stepien — have repeatedly voted by mail in New Jersey. And Nick Ayers, a senior campaign adviser who was previously chief of staff to Pence, has voted by mail in Georgia since 2014.
In most election years, voting by mail is an unremarkable event. But this year is different because Trump has railed against state efforts to expand access to mail-in voting as an alternative to waiting in lines at polling places during a pandemic. He has argued without evidence that mail-in voting will lead to fraud and warned Monday that foreign countries could print ballots.
That, some experts say, is a double standard that amounts to voter suppression.
"These are people who are taking advantage of — which is perfectly legal — their right to vote absentee," said Trevor Potter, the president of the nonpartisan Campaign Legal Center, who previously served as a general counsel on both of John McCain's Republican presidential campaigns. "But they don't want other people to do the same thing."
Trump himself voted by mail in the Florida primary earlier this year. White House press secretary Kayleigh McEnany has a lengthy history of voting by mail, which has been detailed in recent news stories. And Attorney General William Barr, who has also raised concern about the practice, voted absentee in Virginia in 2012 and 2019, The Washington Post previously reported.
Tim Murtaugh, the Trump campaign's communications director, defended the Trump aides who have voted by mail. In a statement, he said there's a "vast difference between voting absentee by mail when you can't get to the polls on Election Day versus mailing every registered voter a ballot, even those who didn't request one."
Amid the pandemic, some states — governed by both Democrats and Republicans — sent applications for absentee ballots to voters, but not ballots themselves. Six states will send ballots in November. Others are taking less dramatic steps.
"The media thinks they're playing 'gotcha' by purposefully ignoring that difference," Murtaugh continued. "Voter rolls are notorious for having bad addresses or even listing dead people as active voters."
The campaign declined to make the Trump advisers who vote by mail available for interviews.
While instances of voter fraud are rare, Trump's campaign seized on recent news stories detailing how a Philadelphia election judge recently pleaded guilty to stuffing ballot boxes in exchange for bribes between 2014 and 2016.
In Texas, where Parscale voted by mail in 2018, there are stiff absentee ballot laws, requiring a person to be over 65, disabled, or out of the county where they are registered during early voting, as well as on Election Day.
Parscale was in Houston for a Trump rally on Oct. 22, 2018, the day early voting began in San Antonio, where he lived at the time, according to records and several tweets he sent. The day after, he signed a statement of residence that was submitted to county election officials to clarify his address. Yet it's unclear if he traveled to San Antonio, where his presence would have disqualified him from voting absentee.
DeVos, the education secretary, has voted absentee in all but three Michigan elections over the past decade, according to records. Trump threatened last month to withhold federal funding after Michigan's Democratic secretary of state mailed out absentee ballot applications to registered voters.
DeVos' family has donated millions of dollars to Republican causes, including groups that are now part of a fierce court fight to limit the expansion of vote-by-mail.
Glassner and Stepien have both voted repeatedly by mail in New Jersey, where Glassner has voted absentee four times since 2016. That includes a general election ballot that was rejected by election officials in 2019. Stepien has voted seven times by mail since 2006, the records show.
Some Republicans question the wisdom of Trump's anti-vote-by-mail strategy.
Former Pennsylvania Gov. Tom Ridge, a Republican, said it is "counterproductive."
"You're the incumbent president of the United States. You have a bully pulpit, you've got this massive war chest, and you've got a huge electronic following," he said. "Why would you not encourage them to vote, number one, and say, well if you can't get to the polls for whatever reason, make sure you fill out that absentee ballot and vote for me?"