Donald Trump has begun claiming that the only way he can lose the 2016 presidential election is if the voting is rigged. But if there's a threat to the integrity of the election, it's coming from Trump himself, and the best response may be for Democrats and voting rights activists to take him to court to protect the franchise.
Let’s start with a fair definition of “rigging”: An election is rigged when eligible voters are prevented from voting, when some voters can vote multiple times, when ineligible voters are allowed to vote, or when vote totals are changed, all with an intent to affect an election outcome.
Trump contends that without strict voter identification laws, people can vote five, 10 or 15 times. He’s offered no evidence to back up this assertion, and for good reason. Even in states with modest means of identifying voters, such as comparing voters' signatures in the poll ledger and on registration forms, there are safeguards to ensure against multiple voting.
In recent memory, the only publicized case involving someone voting in high multiples was a supporter of Wisconsin Republican Gov. Scott Walker when Walker was up for a recall. The voter tried to vote five times in the recall and seven more times in four other elections. He was easily caught, well before Wisconsin passed its strict voter ID law. The voter claimed amnesia; his lawyer argued he suffered from mental illness. The case shows this isn’t a problem that’s going to happen on a grand scale.
Trump could be making his vote-rigging claims simply to create an excuse should he lose come election day. It may allow him to save face, but it also threatens the rule of law by undermining the bedrock of our democracy: the acceptance of election results by not only the winners but also the losers.
Over the weekend, Trump upped his dangerous rhetoric, suggesting that in November cheating at the polls in “certain sections of the state” would hand Pennsylvania’s electoral votes to Clinton. Never mind that Clinton is ahead in that battleground state by about 9 percentage points. Trump's "certain sections" reference is a dog whistle to those who wrongly believe that urban areas such as Philadelphia, with large black populations, are sites of rampant voter fraud.
Trump's website is also recruiting “observers” to stop “Crooked Hillary” from “rigging this election.” What exactly these observers’ duties or training would consist of is unspecified. Fair and legal election observation is possible and even desirable, but there's a reason most states have laws against anything that might be construed as voter intimidation near polling places.
For example, in the 1980s, the Republican National Committee was found to have engaged in discriminatory intimidation tactics aimed at minority voters, such as having off-duty law enforcement officials, sometimes armed, standing in front of the polls, or having observers question voters about their eligibility. Democrats sued, and the result was a federal consent decree: Now the RNC’s activities at polling places are under court supervision until at least 2017.
If Trump supporters threaten to make nuisances of themselves at polling places, Democrats should consider suing the campaign for violating the consent decree, which applies not just to the committee but also to its agents (there’s a decent claim to be made that the Trump campaign, which has a joint fundraising operation with the RNC, is such an agent). If misconduct is proved, the consent decree would be extended another eight years.
Even if Trump is not bound by the consent decree, the campaign might also be sued under various state and federal civil rights laws aimed at preventing voter intimidation. There is precedent for this too.
The Ohio Republican Party was sued in 2004 when it threatened to send 35,000 observers flooding into polling places, a plan two federal courts halted because it was found to be aimed at suppressing the minority vote. An appeals court reversed the injunctions, ruling that those suing the party didn’t have standing to bring the claim. At dawn on election day, Supreme Court Justice John Paul Stevens declined to reinstate the injunctions given a lack of time to fully consider the issue before the vote. But he expressed the hope that the parties would behave: “I have faith that the elected officials and numerous election volunteers on the ground will carry out their responsibilities in a way that will enable qualified voters to cast their ballots.”
In the end, the plan for 35,000 observers never materialized. It was all apparently a bluff.
Maybe Trump is bluffing too, but his words are dangerous and his actions are irresponsible. By claiming the vote is rigged, he undermines the public’s confidence in the election results. And by exhorting his supporters to show up at the polls to look for rigging in “certain sections” of battleground states, he is encouraging behavior that could prevent eligible voters from casting their ballots. If anyone is trying to rig the vote, it’s Trump.
Richard L. Hasen is a professor at UC Irvine School of Law and author of “Plutocrats United.” He blogs at electionlawblog.org
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