NC GOP once had it right on voting-by-mail and courts today should listen

As President Trump, Attorney General Barr and other conservatives fulminate against voting-by-mail, I’m reminded of the year when the North Carolina Republican Party kept urging a deceased family member to vote “from the comfort of your own house.” Some of the words and images in the GOP mailers were jarring to a family still coping with the loss of a loved one. “Don’t take Obamacare lying down” one said, accompanied by a photo of a hospital bed.

But now, looking back at the campaign literature in the midst of the frightening mash-up of a pandemic and a presidential election, I see that the mailers anticipate the commonsense reasons why vote-by-mail should be available widely today. “Avoid the lines on Election Day”, the Republicans suggest on one page. “It’s easy!”, they promise on another. But what’s most striking is the Republican belief that voting-by-mail should be universal. As the GOP trumpeted to my relative: “Everyone can vote by mail – no excuse needed!”

These political artifacts can inform the present debate about voting-by-mail in at least three ways.

First, they make clear that there is nothing inherently nefarious or wrong about voting-by-mail. With substantial retiree and military populations, large numbers of North Carolinians (both in-state and stationed overseas) have used vote-by-mail for decades. And with a rare exception (discussed below), such voting has gone smoothly. Moreover, the propriety of vote-by-mail has never been a partisan issue. As the mailers demonstrate, Republican leaders have — at least until recently — urged vote-by-mail for “everyone.”

Second, get-out-the vote efforts — whether they urge casting a ballot by mail or in person — can never precisely target only active voters because universal suffrage conflicts with a law of the universe: People die … all the time. We also move … a lot. So due to mortality, transience and other reasons there will always be some incidental and unintentional effort by both parties to encourage non-voters to vote. Innocent mistakes by a few provide no basis to disenfranchise the many.

Third, given the serious criminal penalties for voter fraud, the likelihood of any broad conspiracy in furtherance of illegal vote-by-mail activity is vanishingly small. And even if such criminal coordination occurred, the chance that it could alter the outcome of a statewide or federal race and remain undetected is even smaller. Detection, then prosecution, is exactly what happened in North Carolina’s one serious instance of modern-day voter fraud. In the infamous 2018 congressional race in which a Republican operative illegally mishandled absentee ballots, election officials flagged the seeming shenanigans before a winner was ever certified. The misdeeds of one GOP-leaning wrongdoer should offer no grounds for Republican opposition to vote-by-mail by the law-abiding many. Of course, it is important to note that some leading Republicans, including GOP election overseers in several states, are supporting the effort to ensure broad voting rights in this time of the coronavirus. And a bill to make vote-by-mail incrementally easier here is moving through the General Assembly with bipartisan support.

Ultimately, the chief impediment to universal vote-by-mail programs may come from conservatives on the Supreme Court rather than conservatives elsewhere. From upholding Indiana’s voter ID regime without any evidence of past actual fraud in the state (Crawford v. Marion County) to abdicating a role in curbing gerrymandering (Rucho v. Common Cause) to ignoring the necessity of allowing Wisconsin citizens to vote safely (RNC v. DNC), right-leaning Supreme Court justices have repeatedly refused to vindicate the right to a meaningful vote. Instead, many of these same justices have elevated the interests of deep-pocketed donors (McCutcheon v. Federal Election Commission), corporations (Citizens United), and even public officials found to be corrupt by juries (McDonnell v. United States and Kelly v. United States).

In particular, it is the solicitude, credulity and deference towards big-money political contributors that the Court should apply equally, indeed more so, to voters. In the 2014 McCutcheon decision that struck down limits on the overall amount an individual donor can give to federal candidates collectively, five conservative justices time and again dismiss the idea that donors would act improperly or, if they did, that they could get away with it. But there is simply no empirical basis — none — for presuming that donors are law abiding while voters are not.

I do not believe the North Carolina Republican Party did anything intentionally wrong in exhorting my deceased relative to vote-by-mail even though he had been removed from the active registration rolls months before the mailings stopped. But I do think every living voter should have the same opportunity to vote-by-mail the GOP urged upon my departed kin. And I think the United States Supreme Court should make the words of Chief Justice Roberts a reality: “There is no right more basic in our democracy than the right to participate in electing our political leaders.” Roberts opens his pro-donor decision in McCutcheon with the line. It’s past time that each and every voter gets the same respect.

Hampton Dellinger, now in private practice, is an occasional contributor to NC Policy Watch served as a Deputy Attorney General in the North Carolina Department of Justice. Find him on Twitter at @HampDellinger.