DR. NATHAN R.
SHRADER
MILLSAPS COLLEGE
CHAIR,
DEPARTMENT OF GOVERNMENT AND POLITICS
Remarks for New
England College’s National College Convention
Monday, November
2, 2020; 10am EST
https://www.nec.edu/election-2020/?fbclid=IwAR0MWDxwcxNKP5B9Xnk2VDQBqySGF8Db3wmCO5dTpKF76DgB4-7GiLbMU5Y
Good morning and
happy Election Day Eve to all of you! Thank you to the good people at New
England College for inviting me to speak with all of you today.
I’m Nathan
Shrader, chair of the Department of Government and Politics and Director of
American Studies at Millsaps College. Greetings from the capitol city of Jackson,
Mississippi.
Today I am pleased
to report that Magnolia State voters have seemingly cast a record number of
both in-person and mail-in absentee votes this year during our unusually
competitive US Senate race between Cindy Hyde-Smith and Mike Espy and the
constitutional amendment initiative to replace the old state flag featuring the
confederate battle emblem with an “In God We Trust” flag, that will possibly be
the subject of expensive litigation next year if approved tomorrow.
When it was suggested that I talk about a specific thing that I find the most interesting
or fascinating about the 2020 election cycle, I had to take several days to
contemplate the thousands of possible topics in play for this discussion.
Even though I
ruled them out as main topics, there are two things worth mentioning for
posterity.
First, I think we
will look back at 2020 as the year in which Andrew Yang broke the mold and
appeared tie-less in all of the primary election debate. I’m hopeful this
starts a new trend for all political debates and speeches. It’s 2020, not 1820.
Powdered wigs and horse drawn buggies have faded away from use. It’s time for
the necktie to do the same.
Second, the
casting of Jim Carrey as Joe Biden is the worst addition to SNL in my lifetime,
but that’s a topic for another day.
Now that these
points are out of my system, I’d like to discuss what I think is the most
interesting facet of the 2020 election cycle—at least from my vantage point—the
ways in which the application of an originalist interpretation and
implementation of American federalism has doomed the nation to a complicated,
complex, and confusing patchwork system of election laws that will likely lead
the country down a treacherous path in coming days regarding the counting and
processing of our votes.
Because of the
fast-paced nature of this election season, I decided to wait until Sunday
morning to write these comments. As such, I woke up to several text messages
about efforts by the Republican Party to disqualify nearly 130,000 ballots in Harris
County, Texas.
As I was prepared
to talk more exclusively about this particular case, I learned around 3:00pm
Sunday afternoon that the Texas Supreme Court rejected said GOP challenge without
offering an opinion and the plaintiffs are expected to pursue this matter in federal
court.
According to the Texas
Tribune, the plaintiffs will inevitably argue in federal court “that
drive-thru voting violates the U.S. constitution. A hearing in that case is set
for this morning in a Houston-based federal district court, one day before
Election Day. A rejection of the votes would constitute a monumental
disenfranchisement of voters — drive-thru ballots account for about 10% of all
in-person ballots cast during early voting in Harris County.”
--
To put it as
succinctly as possible, our unique system of American federalism ensures that
power and responsibility is divided between the federal and state and/or local
governmental units. Likewise, Dr. Edward Purcell, Jr. of New York Law School
writes that originalism “claims that the
Constitution should be interpreted in light of the ‘original’ meaning it held
for those who drafted and ratified it.”
Essentially, the
application of federalism as it relates to the courts is a question of
jurisdiction which is determined based on what law or statute is in dispute:
federal, state, or local. The central problem today that underscores my topic
is that American federalism is being interpreted and applied through an
antiquated, originalist conception designed to limit and weaken the national
government and federal authority. This leads to tremendous—and
unnecessary—deference to the states.
In his 2007 piece,
Originalism, Federalism, and the American Constitutional Enterprise: A Historical
Inquiry, Professor Purcell introduced readers to the topic by noting that
the combination of constitutional originalism and America’s unique system of
federalism represents “an intensifying
effort to employ constitutional provisions to limit the powers of the national
government and protect the sovereignty of the states.” In my view, this is an apt
description of what we are experiencing today.
As such, this
marriage between originalism and American federalism ensures the United States
has no coherent national policy or strategy regarding election management,
voter registration, and the operation of programs such as absentee balloting,
vote by mail, or how and when to begin counting ballots received.
This of course
leads to contradictory rulings that fundamentally changes the voting
experience—and what it means to partake in the democratic process—from state to
state rather than a system that treats all Americans as citizens of the
United States first and citizens of their respective states second.
Here are some examples
drawn from this election cycle to underscore my point:
Ø First, early
voting. According to the National Conference of State Legislatures, 43 states
and DC provide for some form of in-person, early voting. The rest do not allow for
the practice.
Ø Second, mail-in
and absentee voting. NPR reports that in this election cycle, 10 states
automatically sent ballots to voters through the mail while
another—Montana—allowed each county the option of doing so. Voters could receive their
ballot automatically and without requesting one from their county or the state.
Meanwhile,
14 states did not automatically mail out ballots to voters, but they did
distribute mail-in-ballot applications automatically. This means that voters in
those places could have received an application that still had to be completed
and returned by a deadline which varied from one state to the next.
Ø Third, what about
excuses for voting by mail or absentee? 38 states required voters to request or
apply for a ballot through the mail without an excuse required or fears related
to Covid-19 were permitted as an excuse for voting by mail.
Five other
states—including the one where I vote—require an excuse to be given to the county
registrar and thanks to the infinite wisdom of the legislatures and Secretaries
of State in those places, opted not to permit voters to use Covid-19 related
fears as an excuse for voting absentee, either in person or by mail.
Ø Fourth, we have
drop boxes. Lawfare reports that 40
states plus DC provide at least one drop box per county for voters who wish to
deposit ballots while 20 are permitting completed ballots to be dropped off at
polling places on Tuesday.
This may sound
like a step in the right direction. However, Lawfare indicates that just 8 of these states have explicit laws on
the books that directly provide for the use of said drop boxes, thus another avenue for
litigation.
Ø Fifth, there are
ongoing disputes over the exact day in which ballots must be postmarked and
returned. Look for these matters to be the subject of extensive post-election
litigation, especially in a close race as this will inevitably be a flashpoint
for legal action as the Republicans are going to challenge the validity of
ballots based on the differences here.
For example, here
in Mississippi absentee ballots must be “Postmarked by Election Day and
received within 5 business days of Election Day (by mail); Received 3 days
before Election Day (in person).”
In battleground
Wisconsin absentee ballots must be “Received by 8pm on Election Day.”
Meanwhile, in my
native Pennsylvania—which has turned out to be ground zero for the final
moments of this campaign—absentee ballots must be “delivered in-person,
received by 8pm on Election Day. If mailed, postmarked by Election Day and
received within 3 days after Election Day.”
In short, this is
a mess and is an obvious source of legal action waiting to happen.
Ø Sixth, let’s
consider the temporarily resolved Texas curbside voting issue that led me down
this path to begin with. The Texas Supreme Court has ruled for now that the
ballots will stand, but some Republicans now banking on a federal court
reversal and may be emboldened thanks to the U.S. Supreme Court, which struck
down curbside voting in Alabama last week on a 5-3 vote. Again, there are no
national standards for curbside voting, but instead a patchwork of complex and
confusing laws.
Ø Seventh, some
counties in some states are able to legally count mail-in and absentee ballots
in advance to expedite the process on Election Night. Others are not. In
Pennsylvania for instance, some counties have yet to decide whether they are
even going to count these at all on Tuesday or wait to begin doing so later in
the week. Talk about additional confusion!
Ø Eighth, how about
those armed militants at the precincts? The Trump campaign has been recruiting
volunteers under an official effort called “Army for Trump,” found at www.armyfortrump.com. Some
of these folks may or may not be associated with the armed militants online who
say they are going to be patrolling precincts at the president’s request. Are
they allowed to brandish firearms at voting precincts? In some places yes, in some places no.
According to the
Brady Campaign, “There is currently no federal law prohibiting the presence of
firearms at polling sites. Instead, regulation is left to the states, a large
majority of which allow guns to be carried in and around a polling place.”
The Institute for
Constitutional Advocacy and Protection at Georgetown Law cites a Gifford Law Center
report indicating that guns are expressly prohibited in polling places in
Arizona, California, Florida, Georgia, Louisiana, Texas, and the District of
Columbia, yet some states like Mississippi, Missouri, Nebraska, and South
Carolina say firearms must be not be concealed.
Does much of this
sound convoluted, confusing, and confounding? Perhaps even perilous?
If you answered
yes, you are not alone.
And it brings me
to the true issue at hand: are we first and foremost citizens of the states in
which we live or of the United States itself?
This election
cycle has led me to ask how our basic rights and privileges like the right to
vote and the details associated with it can vary so greatly from state to state
when we are all citizens of the United States?
This is where my
head will be in the coming weeks, no matter who emerges as President of the
United States and how it happens.
--
Having reviewed
the deficiencies wrought by originalist federalism on this election cycle and
our election laws, I want to make what may be a controversial point, but one I
believe to be crucial.
The previous
several months—and likely the coming several weeks—have and will continue to
illustrate the deficiencies of federalism in hindering the creation of a much
needed, truly national election process.
At the start of
this talk I commented about the horse drawn buggy, the powdered wig, and the
equally archaic necktie. Much like these contrivances, originalist-driven
federalism has outlived its usefulness as a means of uniting a nation with
fraying political, economic, ideological, and social bonds.
What would I
propose instead?
Well, even though
it is highly unlikely to come to pass in the near future, I recommend that most
all facets of election procedure and management ought to be nationalized:
uniform standards for registration, absentee ballots, early voting, Election
Day protocols, counting ballots, and reporting of results in all 50 states plus
DC.
On top of this,
universal, national registration for all American citizens when they turn 18 would help lessen the
quagmire exponentially.
Will we ever get
there? Hopefully, but perhaps not in my lifetime. However, the complications in
these areas that have been a hallmark of the 2020 election cycle will not be
forgotten moving forward into 2021 and beyond. Additionally, young voters like
those in this conference today are considerably more astute and advanced than
their older peers and those currently holding public office when it comes to
these matters.
In addition to
every other seemingly insurmountable challenge facing civilization, this is
probably going to fall on their shoulders too.
Good luck,
students. You have some enormous challenges ahead of you.
--
In conclusion, I
want to leave you with a serious, somber point to reflect upon as we prepare
for what could be long, contentious days and weeks ahead.
Most importantly,
we have to count all the votes and leave the voice of no Americans behind. And
this could take time.
History will
recall and judge the America that wakes up on November 4 as much as it will remember
the America that finishes voting on November 3.
In his book, The Soul of America, historian Jon
Meacham noted that President Lincoln’s first inaugural address included an
appeal that we be guided “by the better angels of our nature.”
This week will be
a test of this to be sure. Will our better angels of responsibility, honor,
patience, reason, and virtue emerge on the morning of November 4 and the days
that follow, or will we allow our lesser angels to shape our future?
We must together demonstrate
our commitment to these virtues during what could be an unusually long and
trying process of vote counting and election certification.
These will be days
which demand patience and empathy with those tasked with managing the nuts and
bolts of the democratic process.
Our better angels
will be in greater demand than ever.
No matter who wins
and who loses this election, we must all continue living together in the same
country. In the same states. In the same counties. In the same cities and
towns. On the same campuses.
Our response
matters because we are all still in this together, no matter how worn the
common bonds have become. No matter how exhausted we are. No matter how
frustrated we have become.
In
his first inaugural address, 132
years after Lincoln’s, President Clinton memorably stated that "There
is nothing wrong with America that
cannot be cured by what
is right with America.”
I
would like to think this is still true of America and Americans in 2020.
Thank you.
