By Daniel H. Stewart
Earlier this week, I wrote about the 1864 election held during the Civil War. In the midst of that great and bloody struggle, Americans made radical changes to election rules to allow Union soldiers to vote. The process was messy, but it worked and laid the foundation for necessary democratic changes in the years to come. It also helped re-elect Lincoln, save the Union, and end slavery.
In 2020, we are debating whether or how COVID’s disruptions should affect the way we vote. I support that debate. And while I expected a robust, heated, and even partisan discussion of current practices and current conditions, I never once thought anyone would consider delaying the election entirely. If we could implement new election rules during a civil war, with hundreds of thousands of displaced voters, surely we can handle one during COVID. Apparently, President Trump believes us far less capable than our ancestors.
The President recently tweeted “With Universal Mail-In Voting (not Absentee Voting, which is good), 2020 will be the most INACCURATE & FRAUDULENT Election in history. It will be a great embarrassment to the USA. Delay the Election until people can properly, securely and safely vote???”
There is much to unpack here, and so very much wrong with it.
First, it is absolutely false that 2020 has even a slight possibility of being the most inaccurate and fraudulent election in history. Past American elections often included all sorts of fraud, intimidation, censorship, and even violence. Worst of all, for most of our country’s history, most of our country’s residents could not legally or effectively vote. Paradoxically (for some), today’s elections are cleaner and vastly more inclusive. Mass participation does not equal mass fraud.
Second, what is President Trump’s real concern? If he is worried about safety amidst COVID, then options like mail voting must be considered on top of other options already available and in use.
Third, for the most part, mail voting and absentee voting are the same thing; only the process for delivering the ballot to the potential voter differs. Absentee voters request ballots; most mail systems send ballots to all registered voters. But how one obtains a ballot is irrelevant to the voting process itself: both mail voters and absentee voters mail their completed ballots back to election officials. If mail voting is an unreliable way to vote, absentee voting is too. And both voting methods will have major problems without a fully funded and operational U.S. Postal Service.
Fourth, to the extent President Trump believes that mail voting means a net increase of fraud on any scale that would justify delaying elections, he is arguing against the weight of the evidence. Mail voting has an 150-year history with red and blue states and voters alike. There is certainly ground for reasonable debate about the contours of a vote-by-mail system, but not wholesale rejection.
Finally, the President speaks of possible delay. But he has no more constitutional authority or ability to delay the elections than he does to extend his term of office. Even suggesting as much is beyond troubling and possible grounds for impeachment and removal from office.
COVID is bad; the Civil War was worse. And it was far more difficult to help soldiers vote from the field than it is to help today’s Americans vote by mail. Soldier voting was not a simple task, as Nevada’s own history shows.
The delegates to the 1864 Nevada Constitutional Convention approved both the proposed constitution and the laws for voting in two different, almost simultaneous elections: the vote on the Constitution; and (if voters approved the Constitution) the vote for the 1864 candidates. All free, 21-year old white, male (ugh) Nevadans, including non-citizens could vote in both elections. Many were fighting in the war.
To capture the soldier vote for these elections, Nevada set the following process.
Step one: Officials prepared lists of all Nevada voters serving in the military, sorted by regiment, battalion, squadron, and battery.
Step two: Nevada’s territorial governor then made separate lists and sent them on by “mail or otherwise” to each regiment, battalion, squadron, and battery, with the name and rank of each voter specified.
Step three: On election days, between 9:00 a.m. and 3:00 p.m., the highest officers in each command set up ballot boxes in the field where the soldiers camped. Officers checked off the soldiers on the provided list as they voted.
Step four: The officers counted the votes, made duplicates, and then sealed up the voting list and the vote counts (on an official form), and sent them back to the territorial governor by “mail or otherwise.”
Nevada did all of this in 1864, with soldiers voting in the throes of war, and when telegraph and railroad mail was the fastest form of communication. Lists, votes, and returns passed through multiple hands (some partisan), and everyone waited for results. Four years before, the only voting that had been allowed was in-person and at-home. What a difference four years and a national crisis can make.
That America even had an election in 1864 is amazing. Lincoln understood the gravity of maintaining constitutional norms no matter what. When he learned he had won reelection, he congratulated the county, not himself. Lincoln called the election a “necessity,” stating:
We cannot have free government without elections; and if the rebellion could force us to forego, or postpone a national election it might fairly claim to have already conquered and ruined us.
. . .
But the election . . . has demonstrated that a people's government can sustain a national election, in the midst of a great civil war. Until now it has not been known to the world that this was a possibility.
I have no doubt that Lincoln would have had similar thoughts, win or lose. He was confident in his country and its voters. Even when the Civil War and Lincoln’s future looked bleak, he did not entertain for a moment asking for a delay.
If anyone had reason to defer democracy it was Lincoln. Forgetting for a moment the horrific war on his very doorstep, one that ended up killing close to 2 percent of the entire country, Lincoln’s most vicious opponents had no use for the electoral rules of the game themselves. Seven states greeted his 1860 election by seceding before he even took office. Confederates also had agents, spies, and collaborators in the North with the goal of affecting the outcome of the 1864 election. One soldier opined about the army’s ability to win the war, “[i]t is a common saying here that if we are whipped, it will be by Northern votes, not by Southern bullets.” The rebelling states and supporters disrespected democracy. Lincoln resisted the temptation to respond in kind.
President Trump appears to have no faith in America or its voters. He seems far more concerned with his prospects as a candidate than his duties as a president (sound familiar?). His actions betray any claim that he really believes he speaks for a “silent majority.” No candidate, certain of majority support, fears the voters. Unpopular populism thankfully has a short democratic shelf-life.
There is little about 2020 I expect to remember fondly. But holding fast to democracy, even when everything else seems to be slipping away, is something no one will forget.
Daniel H. Stewart is a partner with Hutchison & Steffen, where he leads the firm’s election, campaign and political law practice. He has practiced law in both the public and private sectors, representing elected officials, candidates, campaigns, social welfare organizations, and other political and policy-focused clients.