Voting rights and the upcoming election are under attack yet again. Not really again, it has been a constant attack, but as we close in on November, the attacks and strategies have increased and expanded.
The latest is all about voting by mail. Voting by mail has been a part of our elections for a long time. It was used during the Civil War to allow soldiers to vote.[i] It was used again during World War II, but created controversy around States Rights’ and the rights of African Americans to vote in southern states.
In the 1880s states began allowing absentee voting for citizens who were away or seriously ill. In the 1980s California became the first state to allow voting by mail upon request, no excuse required. Three states, Oregon, Washington and Colorado do all their voting by mail.[ii]
The system has worked well for a long time.
Now, as we approach an election day with pandemic precautions in place, voting by mail will play an even bigger role in the election.
Over the past week this story has blown up, becoming front page news with the current attacks on the US Postal Service.
The President has made a concerted effort over the past several months to attack voting by mail.[iii] He has claimed, without any evidence, that mail in voting is rife with fraud. In 2016 he was claiming that President Obama had been elected to his second term due to election fraud with dead people voting.[iv] It is one of his classics: shedding doubt on election results by claiming they are fraudulent. Now he is doing it to set the stage for his challenge to the next election should he lose.
He is not one to rely on just one avenue of attack. Mail in voting requires mail. The US Postal Service has been the target of Republican attacks for decades. The Postal Service is created in Article 1, Section 8 of the US Constitution.[v] Congress has the power to create post offices and post roads. The framers thought it was important enough to mention in the body of the document and it has served as the primary form of communication in the country, linking us all together. As we learned in grade school, Benjamin Franklin was our first Postmaster General.[vi]
However, since the 1970s the Postal Service has been under attack. In 1970 President Nixon signed into law the Postal Reorganization Act which abolished the Post Office Department and replaced it with the Post Office Service. The new service was to operate more like a business and hopefully become self-sustaining. It came as a result of the various unions representing postal workers earning the right to organize and bargain collectively.[vii]
It was actually a success for a while. In 2006, Congress enacted Postal Accountability and Enhancement Act, introduced by Republicans and signed into law by President Bush.[viii] It placed restrictions on the increase of postal rates, and most disastrously, required the Postal Service to pre-fund the health and retirement benefits for employees for 50 years. No other business operates that way. Since then the Postal Service has run at a huge deficit and lost billions of dollars. It was estimated in 2011, that if the Postal Service was not required to pre-fund benefits, but was able to operate as most companies do, it would be $1.5 billion in the black rather than $20 billion in the red.[ix]
This is a common tactic for Republicans, use legislation to cripple a public service and then claim that the service is a mess and needs to be privatized. They are doing it with Social Security, Medicare, and Medicaid.[x] They are doing it with public education[xi]. Now they are focusing on the Postal Service.
The Republicans are using the opportunity to point out how poorly the Postal Service works and call for privatization. The Cato Institute, a non-profit think tank that considers itself to be libertarian, and was formed by the Charles Koch[xii], advocates for privatizing the Postal Service.[xiii] Many reasons are given for the desire to privatize the Post Office, from downsizing government to efficiency. I can see no legitimate reason to eliminate the Post Office other than someone out there thinks they can make a lot of money from taking over the business.
The Postal Service is a service provided by the federal government to its citizens. Not everything has to turn a profit. The military doesn’t turn a profit. Roads and sewers don’t turn a profit. It is the job of government to provide certain essential services to its citizens and I think the Postal Service is one of those as did the framers of the Constitution.
To further his aims, President Trump has recently appointed Louis DeJoy as the new Postmaster General. Putting aside the incredible ethics violations going on with the appointment and DeJoy’s eligibility to serve[xiv], he has begun to dismantle the institution from the inside out. He has fired many longtime upper level managers, and has begun removing mailboxes from the streets and mail sorting machines from the mail handling centers. He has eliminated overtime and ordered mail carriers to leave mail behind at the post office if it will delay the delivery their rounds.[xv]
President Trump himself has admitted that these changes are intended to disrupt the mail service during the election and delay the on-time delivery of ballots.[xvi] He is holding the Postal Service as hostage to bolster his chances at winning in November. On July 29, 2020 the Postal Service General Counsel wrote to all the states’ attorneys general warning them of expected delivery delays for mail in ballots.[xvii]
At least twenty states have sued to stop the changes being made by DeJoy, with more coming.[xviii]
So this brings us back to the civil rights angle. The President is attempting to sabotage the election by making it harder to vote in many ways. I have discussed a number of them in the past and this is just the latest, undermining voting by mail.
I should note that President Trump and the First Lady have voted by mail in Florida for the last two elections, his recent primary ballot being delivered to Palm Beach election officials on August 17, 2020.[xix] Likewise, Vice President Pence and many other top officials regularly vote by mail.[xx] President Trump has also said that voting by mail in Florida is safe and effective.[xxi] Of course, that is where he votes and where a large portion of his base lives and votes by mail.
DeJoy has announced that he will suspend and further changes to the Postal Service until after the election. He has not said that changes already made will be reversed.[xxii] He will also testify before Congress several times in the coming days.[xxiii]
As I have said before, voting is one of the most basic of rights in a democracy and is enshrined in our Constitution and its Amendments. Those rights are under constant attack by parties seeking to hold onto power. Whether it is reducing the number of polling places, ID laws, preventing felons from voting after serving their terms and now crippling the Postal Service, we must stand up and protect the rights of all Americans to vote.
Due to the Covid-19 pandemic, many Election Day polling station volunteers are frightened of being in public and will not be available this November, a large portion are elderly retired men and women. I urge everyone to consider helping out somehow, volunteering to help at a polling station,[xxiv] working with groups to help others vote or any of the other opportunities available. You can contact candidate offices, churches, senior centers, many have programs to help voters get to the polls and vote.
[xvi] https://www.theguardian.com/us-news/2020/aug/13/donald-trump-usps-post-office-election-funding; https://www.nytimes.com/aponline/2020/08/14/us/politics/bc-us-trump-mail-in-voting.html?searchResultPosition=53
[xviii] https://www.cbsnews.com/news/postal-service-20-state-attorneys-general-sue-trump-administration/ ; https://www.marylandattorneygeneral.gov/press/2020/081820a.pdf; https://www.politico.com/news/2020/08/18/pennsylvania-washington-usps-lawsuits-397851
[xxii] https://about.usps.com/newsroom/national-releases/2020/0818-postmaster-general-louis-dejoy-statement.htm; https://www.politico.com/news/2020/08/18/dejoy-suspends-usps-changes-under-pressure-397765
The author[s] is solely responsible for this blog submission. It does not represent the position of the New York State Bar Association or its Committee.