A few days ago, a friend sent me a video intended to recruit military veterans to “protect our right to vote.” The group behind it has an appalling record of voter intimidation, and is one of a growing number preparing to influence this year’s election through the strategic deployment of “poll watchers.” The video’s narrator spoke about his time in Iraq providing security during a tense election. “We had snipers across the whole city protecting polling booths,” he said. Then he issued this ominous call to arms: “My brothers and I were willing to shed our blood … So I’m asking you as Americans to take involvement in this vote … Military, vets, first responders, we’re asking for your support.”
I came to expect paramilitary vigilantes stalking polling places when I served overseas. I never imagined it could happen at home. But in the midst of the COVID-19 pandemic, suddenly the most far-fetched scenarios seem plausible. State governments around the country have imposed lockdowns on their residents. The U.S. Department of Justice has proposed suspending certain constitutional guarantees.
And during the most important political contest of our lives, elections have been totally upended, as in Ohio, where I live, and where Republican Governor Mike DeWine delayed the primary. The decision came about chaotically, delivered the night before the election in open defiance of a court order. But as poorly executed as the governor’s decision was, I agreed with the rationale behind it. Ohioans will have their chance to vote. Holding the election as scheduled, with transmission rates of COVID-19 still accelerating, posed too great a risk. In this case, acting out of fear made sense.
When public safety conflicts with fundamental rights, which one wins? As a nation, America has faced this dilemma before. Abraham Lincoln suspended the writ of habeas corpus during the Civil War; he defended his decision by saying, “Are all the laws but one to go unexecuted, and the Government itself go to pieces lest that one be violated?” Some 90 years later, Justice Robert Jackson added to Lincoln’s sentiment in a dissenting opinion on the right of a Nazi sympathizer to issue hate-filled incitements. “The Constitution,” Jackson wrote, “is not a suicide pact.”
During a crisis, I might trust President Lincoln, or Justice Jackson, or even Governor DeWine to act in the public interest. COVID-19 should terrify us, and governors across the nation are right to impose strict measures to protect citizens. But of all the motivating forces in politics, fear is by far the most dangerous. Where it reigns, tyranny often follows. In the hands of President Donald Trump, fear threatens to undermine the one tool Americans have left to remove him from office.
From day one, the Trump administration has done everything it could to weaken faith in American elections. Before he was even sworn into office, Trump claimed—against all evidence—that massive fraud was behind Hillary Clinton’s popular-vote victory. He has invited foreign powers to interfere and directed the Trump faithful to intimidate voters in areas he knows he will lose. In the run-up to the 2016 election, he said to a raucous crowd in Ohio, “You’ve got to get everybody to go out and watch … And when [I] say ‘watch,’ you know what I’m talking about, right?” That rallying cry has been taken up by a host of malign forces, including the organization attempting to recruit veterans like me.
Such sentiments may simply be the opening salvo in President Trump’s assault on the coming election. As is obvious by now, he will do whatever it takes to win. During his impeachment trial, his lawyer Alan Dershowitz argued in full view of the American public that a president can justify virtually any action to get reelected, if he deems that staying in office serves the national interest. Dershowitz later walked back the argument, but the central conceit of Donald Trump’s approach to politics had been laid bare: The sole purpose of elections is to elect him.
In theory, Donald Trump could deploy military forces during an election. The Constitution gives him broad authority to put down conspiracies against the government and otherwise act to defend public safety. If he determined, for instance, that a liberal “sanctuary city” posed an insurrectionist threat, or that it somehow contributed to the spread of COVID-19, he could send in troops. The fact that these emergency powers are rarely used is more a reflection of past presidents’ respect for norms than any meaningful constitutional limitation. As Justice Jackson observed, objecting to the mass detention of Japanese Americans during World War II, these powers lie in wait “like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”
Donald Trump could wreak all manner of havoc on this year's presidential election, including by urging paramilitary foot soldiers to intimidate voters and deploying the military itself to put down imagined threats. One thing he cannot do, however, is stop it from happening. A wartime commander in chief may suspend habeas corpus, and a governor may delay a primary, but a president has no mechanism by which to cancel a general election. The Constitution grants Congress the sole power to determine the timing of elections. With the House of Representatives firmly in the Democrats’ hands, the institution will not bend.
Two things, then, are certain: The election will happen, at least in some form, and Donald Trump will do everything he can to undermine it. Given his willingness to place personal interests above all others, it is safe to assume that he will use the current emergency to his advantage. So how can America ensure a free and fair election amid a genuine public-health crisis, under a president whose future depends on the judgment of voters?
The first step is to expand early voting, to avoid crowding at polling locations. This must be followed by the allowance of nationwide “no excuse” absentee ballots, so that any eligible voter can either mail in or drop off his or her ballot with no explanation required. Some groups will claim that these methods lead to massive fraud. They do not. Expanding voter access dramatically increases participation with little evidence of a corresponding increase in fraud. In any case, severe penalties for voter fraud exist across the country.
Beyond these actions, Americans must guard against voter intimidation in all its forms. It may come from the president himself, as when he directed his followers to “go out and watch.” But it will just as likely come from administration-loyal governors, who retain enormous powers during emergencies, including the ability to limit the right of assembly and freedom of travel. If such restrictions appear targeted toward particular communities, especially those already marginalized, Americans must sound the alarm.
Unfortunately, the country is running out of time. With a kind of grotesque symmetry, the threat to the fall election is playing out in much the same way as the COVID-19 pandemic. Warning lights are flashing, yet lawmakers hesitate. Most state legislatures, where these reforms must be passed, are not acting with the urgency this crisis demands. Many require bills to be voted on in person. As more representatives become ill, lawmaking itself may become life-threatening. But it must happen, even if remotely.
In justifying his decision to delay Ohio’s primary, Governor DeWine said, “The only thing more important than a free and fair election is the health and safety of Ohioans.” I supported his decision to delay the vote, but his assertion about the relative importance of free elections is dead wrong. The only thing that matters more than our health and safety is the freedom to choose how we are governed. Countless Americans have risked their lives, and some have died, to guarantee that right.
So Americans must defend it. Not with mobs of vigilantes or tales of voter fraud, but with foresight, planning, and, most of all, courage. The promise of self-government deserves no less.
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