Op-Ed: How Republicans are tossing Democratic ballots

It’s hard to avoid the conclusion that Republican officials, too often abetted by federal judges appointed by Republican presidents, are making up technicalities enabling them to shred mostly Democratic ballots.

When one party’s officials and candidates urge their own supporters not to vote by mail but to wait until election day and then vote in person, nothing inherently suspicious has happened — although that advice even standing alone would be a bit odd. But when those same officials and candidates mount a systematic effort to find ways to disqualify thousands of mailed ballots — more likely used by voters of the other party — even if the ballots arrive by election day, it’s hard not to see the ulterior motive.

To be sure, this isn’t smoking gun evidence that one political party is hijacking a swing state’s election machinery to toss out lawfully cast ballots. But in such cases, smoking gun evidence just isn’t going to be available. When we’re dealing with something as basic as the right to vote and to have one’s vote counted, circumstantial evidence this powerful ought to suffice. And what the evidence here exposes is a fundamentally un-American and altogether unconstitutional scheme to disenfranchise voters based on nothing beyond the likelihood that they voted for the opposing party.

Any genuinely open-minded and fair judge would see through the gossamer-thin technicalities being cooked up to toss out ballots that arrive before election day — the way the Pennsylvania Supreme Court has approved doing just that because the outer envelope didn’t include a date, or the way a Wisconsin court agreed to do the same because a required witness address wasn’t complete.

The Michigan lawsuit by the Republican candidate for secretary of state seeking to toss out absentee ballots not cast in person by someone with an ID is particularly revealing. The Republican nominee’s lawyer, when pressed to come up with a legitimate explanation for why the lawsuit targets the heavily Democratic, majority-Black city of Detroit rather than the entire state of Michigan, had nothing to offer. Fortunately, a state court judge on Monday dismissed this lawsuit as groundless and said it “would serve to disenfranchise tens of thousands of eligible voters in the city of Detroit.”

The stories are alarming. For instance, in Pennsylvania, a 95-year-old disabled woman whose ballot was rejected because of a missing date was unable to go to City Hall to cast a replacement ballot, according to the Washington Post. There is something dreadfully wrong when people who have every right to vote are barred.

As Gov. Tom Wolf of Pennsylvania said, “No voter should be disenfranchised simply because they made a minor error in filling out their ballot” — or, to make matters even worse, just because they voted absentee as permitted by state law but a candidate on the ballot had the malice and resources to sue them for doing so.

I believe the federal lawsuits filed by voting rights groups challenging the use of meaningless technicalities, such as the presence or absence of a date on the outer envelope of a mail ballot, should succeed. These kinds of suits would have succeeded in decades past.

They might yet succeed today. But the odds of their doing so are far too dependent on the luck of the draw in terms of which president appointed the particular federal judge or judges who hear the challenges; whether something is indeed a meaningless technicality or a requirement genuinely needed to prevent unlawful voting is at least partly in the eye of the beholder. There’s not a perfect correlation between the political party or ideology of the appointing president, but I worry about impartial justice in these kinds of cases.

A case in point is the U.S. Supreme Court’s decision in June to leave in place a decision by the Court of Appeals for the 3rd Circuit holding that refusing to count mail ballots that unquestionably arrived on time just because they were undated violated federal law. The vote was 6-3, with Justices Clarence Thomas and Neil M. Gorsuch joining a dissent by Justice Samuel A. Alito Jr. After the undated ballots were counted, the losing candidate went back to the Supreme Court and asked it to vacate the Circuit Court’s decision so that it would not influence future courts. The high court’s reactionary majority agreed, literally erasing what could have been useful guidance protecting the right to vote.

In today’s Trump-packed Supreme Court, it is to be expected that technicalities of judicial timing and procedure will be piled atop technicalities of voting administration, all designed to trip up mostly Democratic voters. But the right to vote is no mere technicality. It’s the very foundation of American democracy, and we are witnessing efforts to wear it away.

Laurence H. Tribe is the Carl M. Loeb university professor emeritus and a professor emeritus of constitutional law at Harvard Law School.