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Will our country be able to conduct free and fair elections this fall, despite the federal government’s unprecedented efforts to disenfranchise voters? What can Americans do to counter those threats?
On September 14 four distinguished panelists who have spent their careers working to preserve and broaden democracy took up these questions at ClassACT HR73’s 40th online forum “Democracy at 250: Is Your Midterm Vote at Risk?” Moderator E. J. Dionne ’73, New York Times contributing columnist and Distinguished University Professor in the Foundations of Democracy and Culture at Georgetown University, kicked off the discussion by recognizing the stakes in this election.
“We want to talk tonight about free and fair elections, what they require, how this election is already less free and fair than it should be, and what all of us can do to make these elections as fair, inclusive, and as representative of the public as we possibly can,” Dionne said.
The other experts on voting challenges were:
- Sherrilyn Ifill, Former President & Director-Counsel, NAACP Legal Defense Fund, and Endowed Chair in Civil Rights, Howard University
- Seth Waxman ’73, the 41st Solicitor General of the United States
- Wendy Weiser, Vice President of Democracy at the Brennan Center for Justice.
Together they took up issues such as the erosion of limits on campaign financing, gerrymandering, and the gutting of the Voting Rights Act. They also focused on efforts by the Trump administration to exert federal control over elections through measures such as its proposed SAFE Act and its attempts to curtail mail-in voting.
Other Threats to Fair Elections
President Trump and Markwayne Mullin, Secretary of Homeland Security, have warned they would send ICE or other federal agents to the polls. Although this step would be illegal, it could intimidate voters in districts that have heavily minority populations. “Many voters who would be inclined to vote for Democratic candidates will not appear. That’s a real threat,” Waxman said.
Even if citizens overcome such obstacles to casting their votes, federal officials determined to interfere with the counting and canvassing of ballots might seize those ballots under a grand jury subpoena or with a criminal search warrant, Waxman said.
There is also concern that governors or secretaries of state, unhappy with the results of the November election, might then choose not to certify the actual winners who were actually elected, Waxman explained.
Finally, even the routine act of seating the newly elected members of the House on January 3 has raised concerns among some observers. “The Clerk of the House is responsible for who gets seated,” said Waxman, adding that while the current clerk is non-partisan, the House Speaker has the power to replace that official with a partisan actor.
The Federal Government as Antagonist
In the decades that Sherrilyn Infill has worked to safeguard and expand voting rights, challenges have largely come from state or local actors who try to prevent citizens from voting, particularly racial minority groups. “This is the first time the principal antagonist to voting rights is the federal government,” she said.
Recent Supreme Court decisions such as Louisiana v. Callais this past April have essentially nullified the Voting Rights Act of 1965, which enshrined in law the victories of the Civil Rights movement. That Court’s has decision opened the way for partisan redistricting throughout the South, resulting in new political maps that have severely diminished the political power of Black and other minority communities. On top of that, the Department of Justice, which previously challenged voter intimidation and racial gerrymandering, no longer fulfills that role, Ifill observed.
“They’re showing their fear of the people turning out and voting overwhelmingly to express their desire to be a democracy,” Ifill said. “Their fear should motivate you, and their fear is best exemplified by the range of desperate and patently illegal tactics that they are using to try and interfere with the vote.”
While acknowledging the current efforts to intimidate and confuse voters, Wendy Weiser expressed some optimism that effective guardrails exist to prevent overturning the election results. “The administration’s efforts so far have been blocked at every turn,” she said. “The law is on the side of voters, despite the diminished and lesser laws that we now face for protecting voter rights.”
Weiser reminded the audience that elections are run at the state level and that the president has no emergency powers that give him authority over elections, “despite other abuses that could happen with those powers.”
Nonetheless, Weiser voiced concerns about “the campaign of intimidation” that is causing “huge amounts of fear.” Its effect could be “widespread confusion and disenfranchisement.” That push for disenfranchisement could continue at both state and local levels after the elections, she warned.
What You Can Do
Undeterred by recent events and potentially grim scenarios, all four panel members urged the audience to decide on meaningful ways to fight for free and fair elections. Ifill laid out a series of proactive steps:
- Contact your federal, state and local representatives to remind them that you will hold them accountable if they do not stand up for free and fair elections.
- Ask the leaders of cultural institutions to hold voter education forums and other events to increase turnout and awareness of the issues.
- Check that your neighbors have a plan for voting. Help them create one if they do not.
- Make sure you and family and friends understand the entire ballot. Familiarize yourself with candidates in down-ballot races as well as with ballot measures.
- Become a poll worker or poll watcher to ensure that all eligible voters have the chance to have their vote counted.
- “If you see something, say something!” Call the Election Protection Hotline at 866-OUR-VOTE if you witness intimidation of voters or unlawful procedures at the polls.
- Get trained by organizations like the Brennan Center to learn what you can and cannot do to help voters at the polls.
Waxman urged audience members to spend time in an electoral district explaining the correct procedures for voting by mail, for early voting, and for voting on Election Day. He also encouraged his fellow attorneys to volunteer for voter protection efforts at the state level.
Everyone needs to plan for possible events surrounding Election Day that could endanger our democracy, he warned. “If they do happen, we all need to be prepared to be out there and speaking out in any way we can, by writing op-eds, by being out in the streets, by doing everything possible.”
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