Trumped: Intentional Voter Suppression in the Wake of the 2020 Election

• Publication year: 2021

TRUMPED: Intentional Voter Suppression in the Wake of the 2020 Election

Wesley N. Watts

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TRUMPED: Intentional Voter Suppression in the Wake of the 2020 Election

Wesley N. Watts^*

I. Introduction

There was nothing normal about the year 2020. For just the third time in history, an American president was impeached, world icons John Lewis and Kobe Bryant passed away, the country of Australia was devastated by brushfires that burned some forty-six million acres of land, and The United States faced a racial reckoning the likes of which had been unseen since the Civil Rights era.¹ All of this took place on the heels of a global pandemic that has killed more than 4.3 million people to date and has infected 10% of the global population.² These events of the year 2020 left visible scars that will be felt for a generation; however the presidential election that ensued at the end of the year and the aftermath of it, has the potential to change the fabric of America forever.

The buildup to the 2020 Presidential election was in a lot of ways overshadowed by the COVID-19 pandemic. COVID-19 is the disease caused by SARS-CoV-2 and is a respiratory illness that spreads through

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droplets and virus particles that are "released into the air when an infected person breathes, talks, laughs, sings, coughs or sneezes."³ Infectious particles from the virus can linger in the air and accumulate in indoor places, which necessitates precautions such as social distancing, and mask wearing.⁴

The virus was extremely contagious, and during the 2020 election season a vaccine had yet to become available to the American public. Thus, as the world started to learn these things about the virus, governments began to require citizens to stay home and, in the event that they did need to leave their homes for household essentials, wear a mask. The ever-shifting narrative from the government on the pandemic caused mistrust in some quarters of the public sphere. All of a sudden public health became a polarized issue and the 2020 election was viewed through that lens. Everything from how debates would be held to how votes would be cast became politicized and polarized.

As such, when the world collectively shut down as death tolls and case numbers rose, gone were the traditional politicking and mud-slinging that typically accompany an election year, and the national focus shifted to stopping the spread of COVID while campaigns largely moved online. However, during the dog days of summer the President of the United States posted a tweet that changed the course of voting rights in America: "[m]ail-[i]n [b]allots will lead to massive electoral fraud and a rigged 2020 [e]lection."⁵

Mail-in ballots have long been a staple of the election process in America. As far back as the Civil War, Americans have been filing absentee ballots for reasons ranging from military deployment to illness, for the most part without issue.⁶ Over the years, states grew confident in their ability to handle absentee voting on a larger and larger scale. For this reason, as the pandemic continued to ravage the United States of America into the fall of 2020, states began examining how they could expand mail-in balloting to avoid massive spreads of COVID during the election season.

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The primary season was the perfect test ground for expanded mail-in voting, however an explosion of lawsuits was berthed out of this experimentation, in hopes to prevent enhanced mail-in voting from ever seeing implementation in the general election.⁷ The subject of the lawsuits varied, but the overarching theme was the same: Democratic law makers pressing to make it easier to cast and count mail in ballots, and Republican lawmakers resisting, claiming that this expansion would lead to voter fraud.⁸

The polarization on this issue led to traditional "blue" states having more voters signed up for absentee ballots while "red" states saw lower numbers. By the fall, President Trump was progressively more likely to have an early advantage in the election that would correlate to the immediate counting of in-person votes, and then badly lose the mail-in vote (in which counting was more laborious) and potentially, the presidency along with it.⁹

Predictions of a red mirage and subsequent blue wave became true on election night, as before 11:00 PM EST the President held what looked like a commanding lead.¹⁰ As such, despite a substantial number of mail-in votes to be counted, President Trump declared victory and falsely asserted election fraud in anticipation of an influx of mail-in ballots that would likely count against him.¹¹ Over the next three days of counting mail-in ballots, the Trump legal team launched an all-out assault against the American voting system, pledging intensified legal efforts as they watched their lead dissipate. The legal theories, though shallow, revolved around three issues: "alleged barriers to observing the counting of mail-in ballots, alleged votes cast by the deceased and alleged backdated ballots."¹² However, the evidence of these claims was scant and thus all of the claims that the Trump team presented in court ultimately failed.

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The blue wave swept away any hopes of victory, and Joseph R. Biden was eventually elected as the nation's 46^th President.¹³

The months that followed the 2020 Presidential election continued to be tumultuous. President Trump refused to concede and instead publicly asserted baseless allegations of election fraud. His legal team opened up legal challenges in six states on various grounds, however in each of the six states were unsuccessful, losing on more than sixty claims.¹⁴ With every mounting loss, frustration clearly continued to build for the outgoing President. He demanded recounts in multiple states, told officials in the state of Georgia to find some more votes, and took a scorched earth approach to anyone who dare tell him that he should concede. As fall turned into winter a growing faction of the country not only believed that there were irregularities about the election, but that it was intentionally stolen from Donald Trump.

Those tensions boiled over on January 6 2021. That Wednesday was significant because it marked the day in which the election results would be certified by Congress, effectively ending any sliver of hope Trump and his supporters had at returning to the White House. The day began with the President of the United States again doubling down on his claims that the election had been stolen:

All of us here today do not want to see our election victory stolen by emboldened radical-left Democrats, which is what they're doing. And stolen by the fake news media. That's what they've done and what they're doing. We will never give up, we will never concede. It doesn't happen. You don't concede when there's theft involved. Our country has had enough. We will not take it anymore and that's what this is all about. And to use a favorite term that all of you people really came up with: We will stop the steal. Today I will lay out just some of the evidence proving that we won this election and we won it by a landslide. This was not a close election.¹⁵

On the heels of those words from Donald Trump, a crowd that had gathered in Washington D.C. to hear him speak and to take place in a march around Capitol Hill turned violent. Mob mentality took hold and hundreds of protestors stormed the Capitol, overflowing security and eventually making it all the way to the floor where the election results

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were being certified—sending congressmen and women from around the country into hiding to avoid harm. Offices were destroyed, people were killed, and the country was embarrassed.

In the weeks that would follow, the election was indeed certified, and the national conversation shifted to why a group of people was so angered that they would storm one of the most sacred buildings in America. Of course, both sides of the political spectrum condemned the acts of those involved, however the reasoning behind each party's condemnation was a snapshot of the core of the real problem. While the Democratic party blamed President Trump's remarks and his continuous unfounded claims that the election was stolen, the Republican party blamed a flawed electoral system that left a large swath of the country dissatisfied, and in their mind, disenfranchised.

Whereas the Democrats focused on putting together an investigatory team to ensure those involved in the January 6^th insurrection were held responsible, the Republicans shifted their focus to tightening voting laws in ways that had not been seen since the Jim Crow era. Unable to convince courts that there were any indicia of election fraud that affected the outcome of the 2020 Presidential Election, the Republican focus shifted to what caused them to lose an election they believed they were so certain to win.

For Republicans, the answer boiled down to two issues: historic voter turnout; and unprecedented vote by mail usage. The strategy to address the issues is nothing short of voter suppression. States around the country turned to efforts to eliminate at-will absentee voting and dramatically decrease the number of ballot drop boxes.¹⁶ At least twelve states have issued new restrictions on mail-in voting.¹⁷ At least eight states have enacted eleven laws that make in-person voting more difficult. These laws enact provisions such as requiring harsher ID requirements, eliminating election day registration, limiting availability of polling places, and reducing early voting.¹⁸ If the efforts to restrict voting rights are not curbed—and soon—the next chapter of American history is doomed to look a lot like some of the first chapters.

II. A Brief Overview of Voting Rights Laws and Measures in The

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United States After the Passing of the Fifteenth Amendment.

A. False Dawn: The Fifteenth Amendment and the First Big Push for Voting Rights in America.

The Fifteenth Amendment...