Why do people even worry about mail-in ballots? The only “mail” part that’s necessary is receiving the ballot. You then drop it off at city hall in a container specifically designated for the purpose, or even give it directly to a city employee inside city hall if you’re feeling even more cautious, though that’s less likely this time around. That’s how it works around here. Sure, you can mail it to city hall instead, but if you’re worried about the risk of it getting lost in the mail, there’s a very easy way around it. I can’t imagine why any municipality wouldn’t already have these for the normal volume of absentee ballots, so the only issue this time around is getting them out of the box more often and there possibly being a large traffic jam on election day. But unless you’re unsure about nonpartisan races, I don’t see why anyone wouldn’t fill out their ballot and return it almost immediately if they were actually worried about it.
Well, after the receiving part, there’s the all-important counting part.
Here’s the problem with mail-in ballots: They might not be counted.
(Bold in the original)
See?
I’m not sure exactly how the GOP will cheat, but those who are worried about the GOP tampering with mailed ballots are worried about millions of mailed ballots — some mailed by incautious voters — not just the single ballot over which they have personal control.
Is this clear? I use the ‘confused’ emoticon because the point seems exceedingly obvious.
What I was trying to suggest - what if Trump simply steps outside the legal process altogether?
He orders a loyal general or similar to go pick up boxes of ballots from whatever warehouse. Assuming 50 law enforcement officials turn up with guns, waving an “executive order” of confiscation. Ballots get taken away. Of course it’s not legal - but who would enforce any punishment? Barr? By the time a court order is applied for to enforce the return, who has control of those ballots? And anyway - who would enforce - one branch of law enforcement duking it out with the other?
He’ll say “I’m issuing this executive order to prevent voter fraud through the misuse of mail-in ballots in order to ensure a fair election. It is part of my duty as President to uphold the Constitution and protect our democratic system.”
Will he be lying? Yes. Will what he’s doing be illegal? Yes.
So the question is who can stop him?
As I’ve said, I feel there are two bodies that can realistically stop a President when he decides to act illegally; Congress and the Supreme Court. Neither one of them is compelled to stop a President. They have the authority to intervene if they want to.
I believe this Congress and this Supreme Court will not act against this President when he’s doing something that benefits the Republican party. Even if it’s illegal. They’ll simply stand by and allow it to happen.
So which part of it do you find hard to believe? The part where Trump would break the law? Or the part where other Republicans would look the other way when he breaks the law?
The most scary part is that this is even a legitimate question at all!
You are all debating the ins and outs of the legality or otherwise of Trump interfering with the electoral norms. The integrity of a fair election should be taken for fucken granted, and that it’s already under question is damning.
Thanks America. How to fuck it all up.
My bold.
This is absolutely the bottom line. Anyone who claims that the illegality of something will stop trump just hasn’t been paying attention for the last three years. Sometimes virulent public opinion slows him down temporarily, depending on which “public.” Nothing else matters to him.
The question is and has always been: WHO WILL STOP HIM? Not who CAN stop him, but who WILL?
I want to point out here that you’re altering your original legal theory that Trump would say “mail-in ballots are now illegal”. I don’t know if you’re just using different verbiage because you don’t understand the legal difference, or because you finally apprehend my point that the wording makes it trivial for any judge to say “No, they’re not illegal, because you have no power to declare anything illegal”. Either way, I hope this moving of the goalposts means you at least understand that there’s no legal theory by which Trump can sustainably say “XYZ is now illegal”.
You may think that if you want, but I would direct you back to the Muslim Ban debacle. Trump never said “It is now illegal for Muslims to enter the country”. This may have been his intent and his state of mind, but he never said it. Even so, a federal judge inferred that this was his unlawful intent ban was quickly enjoined within 48 hours, and 3 more injunctions were issued over a 9-month period, forcing successively watered-down revisions. Eventually the Supreme Court took the case and decided to uphold the most watered-down revision. Trump never got the original Muslim ban that he wanted, and for 18 months he got no travel ban at all. His legal theory worked against him, he was unable to run out the clock to escape undesirable consequences.
So, even though SCOTUS did partially rule in favor of the President, the run-out-the-clock factor worked against him here. Because he proffered a transparently false legal theory, his Muslim ban was repeatedly blocked by appeals courts for 18 months.
Similarly, as I’ve repeatedly stated above, the run-out-the-clock theory doesn’t work for Trump in an election. If the clock runs past 1/20/2021, then he has handed the Presidency to Nancy Pelosi.
This is a lazy false-choice question that doesn’t merit a response. Do better.
That wasn’t my intent. I didn’t realize that particular word mattered so much to you.
Amend my hypothetical Trump statement to “I’m issuing this executive order that mail-in ballots are now illegal in order to prevent voter fraud through their misuse and to ensure a fair election. It is part of my duty as President to uphold the Constitution and protect our democratic system.”
Better?
The purpose of this thread wasn’t to suggest that Trump could sign an executive order banning mail-in ballots and be upheld by the courts. I think on a constitutional basis, such an action would be dead-in-the-water. However, that fact hasn’t prevented Trump from issuing other orders of questionable constitutionality or legality before and it’s for the same reason why he files lawsuits that have no chance of prevailing. His ultimate goal is not to win but to harass, grossly inconvenience, and thoroughly fuck things up for the opposing party that any victory they earn will be pyrrhic. Here, Trump might hypothetically sign an executive order banning mail-in voting on grounds of preventing voting fraud about three months before the general election fully knowing that while order will likely be struck down, he can still gum up the works so the mail-in vote states won’t be able to get their ballots out in time.
It’s the same statement with the same problem. If you don’t see that ‘illegal’ is an important word here, I don’t know that we have any shared understanding to proceed from.
According to the US Constitution, only the legislative branch has the power to make or repeal law. Anything coming out of the executive branch that declares something illegal (or legal) is automatically nonsense, null, and void - more to the point, illegal. Anyone working for the executive is bound by law to refuse an order that is obviously illegal. Should Trump be foolish enough to bring it to court, it would bring a swift injunction along with mockery and ridicule.
Let me help with your wording - strike ‘illegal’, replace with ‘prohibited’ or ‘fraudulent’ or ‘in violation of postal regulations’. That’s more likely how it would read. This is more defensible than ‘illegal’ because it does not arrogate itself the power to legislate, at least not on its face. Yet still it’s fatally vulnerable because states have the right to regulate their own elections.
No doubt some red states would use this as cover to pull their own shenanigans, but you can bet all the blue states and some of the red states would fight it. Remember, no matter what Trump thinks, it’s not clear that absentee voting selectively benefits Democrats. Much of the US military votes via absentee ballots. How many Republicans want to publicly get behind an effort to disenfranchise military personnel serving in combat zones?
So by any legal theory you can think of, such an effort would quickly be enjoined by the courts system, and nobody would be obligated to follow an illegal order under injunction.
Still, you may say, what if Trump defies the courts and does it anyway? As I outlined upthread, this is not a scenario where his normal strategy of causing chaos and running out the clock benefits him. If he causes enough uncertainty and delay, he runs the risk of some states not certifying at all. If no candidate gets a majority of electors, then the winner is chosen by the Democratically controlled House of Representatives. If no candidate is chosen by January 20th, 2021, then Nancy Pelosi automatically becomes President for the next 4 to 8 years. As you can see, interfering with the election in such an overt way is hugely risky for Trump and the Republicans.
Does this make sense? Executive orders on their own aren’t enough to get the job done. Acting first and getting permission later introduces some dangerous uncertainties for Trump. Ergo, he is going to tweet furiously about absentee balloting, but cannot effectively outlaw them or safely find any way to prohibit them.
I don’t intend to go any further down the rathole of “but what if he does it ANYWAY because he owns EVERYTHING”. I understand that much has happened over the past 3 years that make him appear invulnerable and omnipotent. Much of that is because of the Republicans enabled the Justice department to be so thoroughly corrupted, and the Republican Senate itself has revealed itself to be thoroughly corrupt and complicit, and the federal courts system has tilted rightward (in fact this is not news, it’s been the case for 20 years now). Granted, he has all that going for him. But the election process is a different matter, where the individual states and (Democratically controlled) House of Representatives hold most of the power. And most importantly, for once, time is on our side, not Trump’s.
This is the key point. I’m questioning that this would happen. I’m not arguing that the law says Trump is right. I’m saying a majority of the Supreme Court would choose not to enforce this law in this circumstance. I find it very plausible that they would allow Trump to interfere with the election because they place a higher priority on supporting the Republican party than they place on upholding the rule of law.
Yes, but what you guys seem to miss is that this won’t make it to the Supreme Court before the electors cast their votes, let along before the actual voting happens. It will go to a lower court which will enjoin the order from being put into effect. It will be too late to help Trump win. And even if Trump is reelected, he would no longer have any need to keep pushing it through, since he would have won even with mail-in votes. It’s not like Trump has any long term goals to help the Republican Party, after all.
I agree with the OP’s title. This is an irrational fear. It’s a nice “what if?” question, but it has an answer that makes it quite unlikely, even if you disregard the political issues.
We should not be like Trump’s supporters, who allow fear to guide them. We should not engage in what my psychologist would call catastrophizing. Getting too scared can immobilize, and we need to not do that.
Plus, we don’t need to be chasing after the unlikely things and miss the more likely ones.
I don’t think we should take it as a given that lower courts will automatically issue an injunction halting a hypothetical order.
I don’t see considering the possibility as immobilizing. If we anticipate the possibility, we can make contingency plans. In this particular case, we should be lawyering up now to respond to this if it happens. And we should be setting up ways to help people vote in person if mail-in voting gets blocked.
This was, as I stated, just something that Trump might hypothetically say.
But he has issued an actual statement on this issue this evening:
This is the key point. Illegal orders by Trump, or GOP officials more generally, can damage democracy even if the illegal orders eventually overturned.
For example, one state (North Carolina?) was ordered by a judge to redistrict and eliminate obvious gerrymandering, but the state procrastinated, submitting more gerrymanders, and so on. Finally a court ruled against the GOP-controlled state, announced the judiciary would do the districting itself, but that it was too late to redistrict for the next election. The same gerrymandered districts were therefore used in the 2018 elections that had been found illegal back in 2017 or 2016. (I may have some details wrong; the story was well covered at SDMB and the Lamestream; do your own Googling. 
)
People point to the Administration obeying promptly — except for zealous Trumpistas at local levels — when judges ruled against anti-immigrant orders. But these were cases where GOP was happy to obey. Liberal judges fighting America suits their narrative. They will not be so happy to obey when the election is on the line.
And even if most Trumpistas obey a judge’s order, some may not. Improper elections cannot be remedied after the fact. Recall the butterfly ballots which gave Florida to Bush. There was never any remedy for that; it was not part of the litigation although it affected thousands of votes.
And, if district or appelate or state judges rule against a Trump order, those rulings will apply only to one district, circuit or state. Expect a variety of improper or illegal GOP subversions; the forces of democracy and justice will be playing whack-a-mole.
And, an illegal order given just a few days before the election, or a few days before a key mailing, cannot be remedied even if a judge rules promptly. The disruption has already been done.
Those saying “Don’t worry about such-and-such: the courts would find it illegal” are quite confused. The don’t understand how easy it will be for the criminals to disrupt this election. Criminals who have taken over the White House, the Senate, the Justice Department, many state governments, and even have 4 or 5 votes on Scotus.
If your point is that the GOP-Kremlin axis has criminal plans to swing the election other than mail-related vote suppression, sure! It’s hard to predict which of these plans will be decisive. I’d not be surprised if the path to GOP victory turns out to be the opposite of OP’s worry! All-mail elections might be mandated at the last minute (with the pretense of covid-19 worry) — that would help the GOP vote in many districts.
Little Nemo is right. Those who love America and love Democracy need to unite and fight the many GOP electoral improprieties that we are bound to see. Good luck!
Yet, on this board we see DEMOCRATS expending much of their venom against Joe Biden, and singing the “Same-same” song. If betting were still legal at SDMB, I’d be betting that in 2021 the U.S continues its slide into a Trumpian nightmare.
It’s not a totally unreasonable fear. Arguably SCOTUS has been working as political operatives since *Bush vs. Gore *in 2000. But when they’ve acted in a partisan fashion, they’re careful to use the fig leaf of some ambiguous point of law to maintain the appearance of neutral jurisprudence. They do not say “fuck it, we’re going to decide something so plainly unconstitutional that every layperson would realize it’s bullshit.” That’s what would happen if Trump arrogated himself the ability to declare mail-in ballots illegal. In fact he might find that Bush vs. Gore works against him, being a precedent that all ballots have to count the same.
Again, I can’t argue against the statement “they are corrupt and they can do anything they want”. These are unprecedented times, and it’s possible, but more likely they’ll search for ways to do what they want under the color of law. And given that this requires Congress and all of the states to play ball, I find this a tougher lift than others here seem to think. Every state has standing to sue for mishandling of US mail, the House of Representatives is controlled by Democrats, so the path to outright manipulation through SCOTUS is not as clear-cut as it was in 2000.
And how long do you think it would take for such suits to make their way to the Supreme Court? :dubious:
Perhaps you might share your own idea of that? :dubious:
I’m not going to be sealioned or have people demand that I predict the future. Maybe you can invest a little effort of your own here?
What a charming invitation, but you’re doing just fine on your own.
I was referring to the kinds of things septimus cited in his post:
A delay can accomplish the same thing as a shutdown. Courts move slowly.