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Mail-in Balloting, the 12th Amendment and Impending Doom

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Ted Rall

Letters to the editor: On vote-by-mail

            More than 80 million Americans are expected to cast mail-in ballots this fall, representing a 16-fold increase over 2016.

            This is probably going to cause a constitutional crisis of epic proportions.

            The problem isn’t the possibility of fraud that Donald Trump has been going on about. Cases of possible double voting or voting on behalf of dead people Daley-machine-style are statistically insignificant, amounting to at most 0.0025% of mail-in votes.

            The real issue is that the ballots may not be counted on time, triggering the insanity of the 12th Amendment to the U.S. Constitution.

            The date to remember is December 14th, when the delegations of the Electoral College meet in their respective states. That’s a hard deadline. Each delegation can only certify their state’s vote counts if they are 100% complete—machine votes cast in person at polling places on election day, early votes, absentee ballots, write-ins and, this year, COVID-19 mail-in ballots. If the state fails to certify on time, its electoral college votes aren’t counted.

            Within each state, there is a canvassing/certification deadline for county officials to submit their results. Most are in late November. California, with a December 11th deadline, cuts it close and usually files its national certification last.

            State election officials are doing their best to meet the challenge. They are hiring additional staff, buying new tabulation machines and installing drop boxes. Even assuming that they will be able to hire the additional personnel they need in the midst of the coronavirus pandemic, the practical impediments to meeting the December 14th deadline are daunting. Mail-in ballots are manually opened and signatures must be visually compared, sometimes several times, to Board of Election records.

Then there are technicalities. For example, 16 states require mail-in ballots to be submitted with an extra “privacy envelope.” In the battleground state of Pennsylvania, 6.4% of absentee ballots submitted in a 2019 election were rejected because voters neglected to insert their ballot inside the privacy envelope inside the mailing envelope—a significant margin that could change the outcome on a national level. Both parties are gearing up for legal challenges about issues like this across the nation.

“Every absentee or mailed ballot, even if dropped off directly at the designated county drop box or polling center, most likely will not get counted on Election Day, and it can easily be challenged and delayed and even rejected on a technicality,” Jed Shugerman writes at Time. “Every mailed or absentee ballot, in an envelope with signatures, is its own hanging chad, its own built-in legal delay.”

            If enough states are embroiled in vote-counting controversies to prevent either President Trump or former Vice President Biden from achieving the 270 electoral votes required to declare them president-elect on December 14th, the obscure 12th Amendment kicks in.

            Used only once—in 1825 to elect John Quincy Adams—the 12th Amendment triggers a bizarre “House of Cards” series of remedies guaranteed to eliminate any remaining belief that the Framers wrote a perfect document designed to withstand the test of time, or that the United States is a democracy.

            After the new 117th Congress convenes on January 3rd, the House of Representatives would vote to elect the president and the Senate would elect the vice president. “Each state delegation gets one vote, and 26 votes are required to win [out of 50 states],” reports the Associated Press. “In the Senate…each senator gets a vote, with 51 votes [out of 100 seats] required to win.”

            Even if Democrats enjoy another “blue wave” election that allows them to pick up congressional seats, they will not capture 26 state delegations in the House of Representatives. Trump would win. If Democrats have taken back the Senate, they could select a vice president to replace Mike Pence.

            It wouldn’t matter if a newspaper recount were to determine later on that Biden should have won both a popular and electoral vote landslide. Trump would remain in the White House.

            The Democratic Party and its allies in the media have been pushing mail-in balloting, but voters who want to see Joe Biden elected and are willing to brave the health risks should consider showing up for early in-person voting. In-person ballots are far less susceptible to rejection over technical issues like security envelopes, they are counted immediately and they thus meet the December 14th deadline for certification.

            As my readers are aware, I do not support either Trump or Biden and will be voting third party, probably for the Greens, this fall. But I don’t support disenfranchisement either. I want everyone’s will to be expressed.

            No matter what happens, no matter who wins, American politics are about to become extremely dangerous. Democracy fails when the losing side refuses to accept the legitimacy of the winning side. That will certainly be the case this year.

(Ted Rall (Twitter: @tedrall), the political cartoonist, columnist and graphic novelist, is the author of the biography “Political Suicide: The Fight for the Soul of the Democratic Party.” You can support Ted’s hard-hitting political cartoons and columns and see his work first by sponsoring his work on Patreon.)

 

If You Can’t Join Them, Be Them

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Ted Rall

Democrats want to elect a candidate who is electable. But what exactly does their conception look like of a candidate who can take on Trump? Like Trump.

Democrats’ Wimpy Impeachment Has Made Trump Stronger Than Ever

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Ted Rall

Image result for trump impeachment

            “Many Democrats fear that Trump may be laying an impeachment trap,” Stephen Collins wrote for CNN last May. “It’s possible that the wider political divides get, the more Trump benefits. The spectacle would help him charge up the political base he needs to turn out in droves in 2020 with claims their 2016 votes were being stolen by political elites.”

            Give that man whatever passes for a cigar in this smokeless age.

            Any number of metaphors serves to illustrate the unintended effect that the hapless failed impeachment of Donald Trump is having on his base of support. What doesn’t kill you makes you stronger; the Democrats did just that with an attack that didn’t stand a chance of felling its target.

            If you’re thinking about taking a swing at a bully at a bar, be sure you can deliver a roundhouse punch that’s going to lay the bastard out flat on the floor. But if you don’t have what it takes to bring him down with the first blow, sneak out to the parking lot.

            The coronavirus outbreak has me thinking about disease. There’s a medical metaphor that I like best: when fighting off an infection it’s better not to use any medication than to take a weak antibiotic and risk strengthening what ails you.

            No matter the analogy, President Trump emerges from his Senate impeachment trial as a more formidable adversary than he was before. While his overall popularity remains at about 46%, the number of voters who “strongly” support him just hit a three-year high, indicating that he is better off than before impeachment. This should come to the surprise of no one who remembers the humiliation of Bill Clinton. Republican overreach over Clinton’s affair with Monica Lewinsky led to the Democrat leaving office in 2000 with soaring popularity.

            Probably the biggest movement in favor of Trump has been with formerly “anti-Trump Republicans” who now see the truth of the President’s supporters’ claims that Democrats would do and say anything in order to get rid of a sitting Republican president. The ranks of Never Trumpers are shrinking, throwing a wrench into the strategy of centrist candidates like Biden and Buttigieg.

            Polls in key swing states show disproportionately high disapproval for impeachment. Voters in these places tend to prefer antiestablishment candidates. Impeachment allows Trump to frame himself as the rebel getting picked on by the in-crowd, Congressional Democrats.

            Impeachment — more specifically, this very lame, rushed, pro forma impeachment — also dispirits Democratic voters who see, once again, that the Democratic Party only seems to wage wars it knows it can’t win. What’s the point of voting for these clowns?

            One thing is for sure: no matter what perfidy is discovered or comes to light in the future, it’s going to be all but impossible to take a second stab at impeachment. Now Trump really could shoot someone on Fifth Avenue and get away with it. Impeaching the same President twice is all but inconceivable.

            How did this happen? Democrats made one mistake after another.

            First and foremost was the lousy choice of impeachment counts. Pressuring Ukraine to investigate the Bidens looked and felt too much like political business as usual, not a breach of normality so outrageous as to justify removal from office. Shades of Rob Blagojevich, former governor of Illinois.

            The Ukraine line of inquiry prompted as many questions as it tried to ask. If Trump is corrupt, what about the Bidens? Why were we giving aid to Ukraine in the first place when millions of Americans are homeless or poor? Why should Americans care about Ukraine? The country certainly isn’t, as Democrats alleged, important to American national security.

            A slim majority thought the Ukraine call was wrong. But they didn’t care enough to impeach him over it.

            Americans did care about emoluments and the president using his office to enrich himself. They did care about his wacko temperament and erratic behavior. They did care about separating children from their parents at the U.S.-Mexico border. Inexplicably, the Democrats let the good bad stuff go.

            Democrats screwed up badly with timing. You don’t have to be James Carville to know that it’s foolish to start an impeachment trial at the beginning of a presidential election campaign. You certainly don’t do it when many of your big-name candidates are senators who can’t campaign because they are stuck in Washington. Yet that’s exactly what Nancy Pelosi and Adam Schiff did.

            Starting the impeachment process so late in Trump’s first term forced Democrats into a rushed pro-forma process. Because Trump Administration officials broadcasted their intention to resist congressional subpoenas and the courts might have taken months to compel them to testify, Democratic prosecutors didn’t bother to subpoena key Republican witnesses or documents. (GOP obstruction became the basis for a dubious second count, “contempt of Congress.”)

            None of this would have been a problem had the “resistance” started working on impeachment in 2017. If they were worried about the politicizing effort of impeachment on the midterm elections, they could have begun impeachment in December 2018, which would have given them enough time to work through the court system last year.

            No serious student of politics thought there was a real chance that this process, rushed over a relatively inconsequential issue, could convince 17 Republican Senators to vote to remove a president for the first time in American history. Nevertheless, Democrats started a fight they knew they couldn’t win.                        

            Now liberals are dispirited. The president goes into his reelection campaign stronger than ever. A second term looks likelier than ever. Heckuva job, Nancy and Adam.

(Ted Rall (Twitter: @tedrall), the political cartoonist, columnist and graphic novelist, is the author of “Francis: The People’s Pope.” You can support Ted’s hard-hitting political cartoons and columns and see his work first by sponsoring his work on Patreon.)

How to Game the Popularity Voter Whores

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Ted Rall

In the same way that Google Maps suggests a short cut around a traffic jam and thus causes more traffic on the alternate route, voters who chase the most popular candidate end up having unforeseen effects on political races.,

Joe Biden Promises to Die in His First Term

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Ted Rall

Confronting concerns that he may be too old, Joe Biden is privately floating the promise that he would only be a one-term president if elected and would not present himself for reelection. But that doesn’t seem to be working. Maybe it’s time for him to step up his game.

In the Future Every President Will Be Impeached over Drivel

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Ted Rall

After Democrats impeach President Trump on a relatively narrow charge of trying to influence Ukraine by withholding military aid and requesting that that country investigate Joe Biden and his son Hunter Biden, it seems pretty clear that big issues will no longer be on the table and that impeachment will become a routine matter.

Billionaires and Corporations Love anti-SLAPP Laws. Why Does John Oliver?

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Ted Rall
Image result for austin beutner
Why does this multibillionaire need a cartoonist’s money?

            John Oliver recently dedicated his HBO show to why we need a federal anti-SLAPP law. Like most of his stuff, the episode was witty and engaging. It was also sloppy, thoughtless and poorly researched. From now on, I’ll wonder whether I can trust anything he says.

            An anti-SLAPP motion is a powerful legal maneuver available to defendants against libel and defamation lawsuits. In the 27 states that have them, the filing of an anti-SLAPP motion brings everything to a halt until a judge — not a jury — decides various issues about a case. Does it involve a matter of public interest? Is there a chance the case would succeed at trial? If the judge rules for the defense, the case is thrown out and the plaintiff pays the defendant’s legal fees.

            Liberals and conservatives alike like anti-SLAPP. Supporters say they protect activists, whistleblowers and average individuals from being bankrupted if they get sued by deep-pocketed corporations and wealthy individuals who use the courts to harass their victims. In his show Oliver described his experience being sued by a coal baron who wanted to chill criticism. HBO, Oliver said, spent $200,000 to defend him because the suit was filed in a state without anti-SLAPP.

            It’s easy to see why someone like Oliver, targeted by a frivolous defamation claim designed to tie him up in court and waste his employer’s lucre, would yearn for a federal anti-SLAPP law. His must have been a frustrating experience.

            There is, however, an inherent design flaw in anti-SLAPP: the United States Constitution. Under the equal protection clause, you can’t give rights to one class of defendant and not another. You can’t limit anti-SLAPP protections to impecunious individuals and small businesses; rich people and giant corporations have to get the same legal prerogatives.

            Which is what has been happening. Billionaires and corporate conglomerates use anti-SLAPP to crush legitimate libel and defamation lawsuits filed by ordinary individuals and whistleblowers. Happens a lot. Why don’t you hear about these cases? Because media companies love, love, love anti-SLAPP.

            In 2016 The National Enquirer published a cover story about fitness headlined: “Richard Simmons: He’s Now a Woman.” He wasn’t. “Secret Boob & Castration Surgery,” the tabloid screamed, “Yes, This Photo Shoot Is Real!” It wasn’t. The cover photo of “transwoman” Simmons was Photoshopped.

            Thanks to anti-SLAPP, what should have been an open-and-shut defamation case turned a travesty of justice into a farce. While acknowledging that the paper lied about Simmons, Los Angeles judge said that letting Simmons’ case go forward was tantamount to saying that it is bad to be trans. Simmons was an innocent victim and the Enquirer knowingly lied. Yet the court ordered him to pay American Media, owner of the paper, $130,000 in legal fees. So much for anti-SLAPP as being a tool for the little guy! AMI brought in $310 million in revenues last year.

            In 2018 MSNBC host Joy Reid [disclosure: I have appeared on Reid’s show] retweeted a photo of a Trump supporter yelling at a high school student at a Simi Valley, California city council meeting. Reid added the following text: “He showed up to rally to defend immigrants…She showed up too, in her MAGA hat, and screamed, ‘You are going to be the first deported’…’dirty Mexican!’ He is 14 years old. She is an adult. Make the picture black and white and it could be the 1950s and the desegregation of a school. Hate is real, y’all. It hasn’t even really gone away.”

            Hate is real. The story was not. The kid said that Roslyn La Liberte, the woman in the photo, was trying to keep things “civil.” She never said that stuff.

            La Liberte’s son emailed to inform Reid of the truth. Reid nevertheless reposted the image, this time alongside a black-and-white image of pro-segregation protesters in Little Rock in 1957 with this caption: “It was inevitable that this image would be made. It’s also easy to look at old black and white photos and think: I can’t believe that person screaming at a child, with their face twisted in rage, is real. B[ut] everyone one of them were. History sometimes repeats. And it is full of rage.”

            La Liberte was wronged. Rather than settle or plead guilty, MSNBC’s lawyers hit the working grandmother with an anti-SLAPP motion. Ignoring the fact that Reid’s posts easily qualify under as “reckless disregard for the truth” under the landmark libel case Sullivan v. New York Times (1964), the judge wallowed in pro-corporate sophistry: “the juxtaposition of the photographs does not ‘make clear that [La Liberte] is alleged to have engaged in specific racist conduct akin to that demonstrated during desegregation.’” La Liberte’s case was thrown out, denying her justice. Adding injury to insult, she has to pay MSNBC’s legal fees. MSNBC is owned by NBC Universal, a $203 billion company.

            President Trump used anti-SLAPP against Stormy Daniels, the porn actor who sued him for calling her a liar. Trump is worth $3 billion. Daniels owes him $293,000 for his legal fees.

            My readers are familiar with my case against the Los Angeles Times. No one disputes the fact that they lied about me, fired me as a favor to the LAPD (which owned them at the time) and tried to destroy my journalistic reputation in order to send a chilling message to journalists who criticize the police. My anti-SLAPP case is still working its way through the court system—and things currently look good—but there is already a $330,000 judgment against me. They want me to pay that money to two billionaires, Dr. Patrick Soon-Shiong and LA schools superintendent and former Times publisher Austin Beutner, with a combined net worth of $16 billion.

            Bill Cosby has been using the anti-SLAPP statute against his rape victims.

            Faced with these cases, anti-SLAPP apologists sometimes say that the law isn’t bad, that it is simply being abused. If a law is written in such a way that it can be routinely abused, it is bad by definition.

(Ted Rall (Twitter: @tedrall), the political cartoonist, columnist and graphic novelist, is the author of “Francis: The People’s Pope.” You can support Ted’s hard-hitting political cartoons and columns and see his work first by sponsoring his work on Patreon.)

Where’s Your Football, Lucy?

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Ted Rall

President Trump’s order to withdraw American troops who created a buffer zone between Turkey and Kurdish-controlled areas of Iraq was a controversial movie seen as a betrayal of a long-time American ally. But there’s a long history of US forces making extravagant promises to local forces, then withdrawing and leaving them to the wolves.

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