‘These Lawsuits Are Incredibly Rinky-Dink’

Janine Jackson interviewed Voting Booth’s Steven Rosenfeld about vote counting for the November 6, 2020, episode of CounterSpin. This is a lightly edited transcript.

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Election Focus 2020Janine Jackson: It is November 5, and the New York Times front page tells me that Joe Biden sees a “path to victory.” The reason it’s just a path, I’m to understand, is that Donald Trump is still mounting “challenges” to vote counts. Trump, of course, announced in advance that, “As soon as that election is over, we’re going in with our lawyers.”

But Republicans didn’t just start going in with their lawyers. In particular, since the gutting of the Voting Rights Act in 2013, they’ve used the courts to provide cover for the kind of voter suppression they feel favors them. They’ve played these cards face up for so long, it’s hard to see why anyone would credit Trump’s current legal maneuvers as anything other than what they are—frank attempts to hold on to power, no matter what.

Voting Booth (via National Memo, 11/6/20)

But here we are, and where we need a press corps that defends democratic functions unflinchingly—even, or especially, if it’s the president attacking them—what we’ve got is, along with some strong and useful reporting, a lot of normalizing inanity, like CNN‘s John Avlon telling viewers to “keep cool” and “remember that the right to vote is really the fight to vote.” Come again?

Things are changing as we speak, but joining us to talk about where we’re at is journalist Steven Rosenfeld. He’s the editor and chief correspondent of Voting Booth, a project of the Independent Media Institute. He joins us now by phone from San Francisco. Welcome back to CounterSpin, Steven Rosenfeld.

Steven Rosenfeld: Thank you. Pleasure to be here.

JJ: Let’s spend a minute on the encouraging aspects of this election process. The highest turnout ever, due to massive mobilizations and ground work, and also—isn’t it due to the Covid-responsive expansion of the ways that we were able to vote?

SR: Yes, that’s really true. That’s been mostly lost in the anxiety over what the results or the outcome will be. But the country since March went through one of the biggest changes in political culture in decades, and that is tens of millions of people voting from home, or getting ballots in the mail and then finding ways to deliver them. And if you take a look at the statistics, state after state, the turnouts were just the highest it’s ever been. And that is really remarkable against this context where there was more litigation than ever, to basically complicate the process in the eight or 10 possible battleground states, so it’s really quite an achievement. And public education and voter education and voters—they deserve some credit for basically not being discouraged.

JJ: Right. As we record on November 5, Trump hasn’t let go of the strategy of what the press called “legal challenges,” which I feel is kind of fancy language for what’s happening. Without asking you to break down each individual case, what should we understand about the nature of the legal arguments being employed here?

Steven Rosenfeld

Steven Rosenfeld: “The number of ballots that they might be able to throw out…[is] really small, and it’s not likely to jeopardize or change the outcomes in these elections.”

SR: Sure. There are two big points to make about this, without getting lost in the details. The first is that most of what Trump and the Republican Party are going after are small technicalities in the process of the way that ballots are handled or processed before they’re counted, and then counted.

And what’s really remarkable about these—I’ve been looking at this today—is that the number of ballots that they might be able to throw out— if they are even lucky to succeed, and we could say in a second why they might not be lucky—it’s really small, and it’s not likely to jeopardize or change the outcomes in these elections. It’s likely to generate a lot of doubt that could be blown up, like molehills into mountains, for their ongoing disinformation, but in terms of the litigation, it’s been incredibly small-minded and kind of sloppy. Like, it should have been filed days ago, but was only filed yesterday, or even today—today being Thursday. So in terms of the narrative of the legal arguments, there are only a few.

There’s really Bush v. Gore 2.0, which means they’re claiming that “like” ballots are not being treated in a “like” manner. Well, what does that mean? It means that counties aren’t doing the same thing, step by step, as other counties, and when you have states like Pennsylvania, where different counties have different voting technology and they have different training for poll workers and all—things don’t get done like robots. So that’s an old claim, and it’s not gotten that much traction.

The next one is a little bit more consequential, because there were four Supreme Court justices, conservatives, who said, “This is the way you can come back to us,” basically claiming that only state legislatures have the authority to regulate elections. And they say this comes out of the federal Constitution—articles one and two. “Time, place and manner,” that’s the phrase.

The problem with that is that it basically ignores everybody else. So who’s everybody else? Governors, secretaries of state, state constitutions, state supreme courts. But we will see how that might come into play.

Where it would come into play in this election is in Pennsylvania and North Carolina and Minnesota. The deadline to accept ballots that were postmarked by Tuesday, Election Day, was extended, but not by the legislature. So the question is, are those ballots going to be disqualified? In Pennsylvania, they’re being separated, they’re being handled separately, to basically put them in a pile that doesn’t jeopardize the rest.

And then the third and final area where they’re making these really nitpicky kind of claims is they’re basically claiming that, “Hey, we’re not being allowed to see the process, or watch the process,” or “Oh my gosh, we weren’t there when a ballot that came in that had coffee spilled on it was duplicated, so therefore everything else can’t be trusted.” So the big picture here—and I’m trying to write about this today, actually—is, the number of ballots that could be thrown out, if they’re successful, they’re really nibbling around the edges. So what is this mostly doing? It’s mostly building up evidence to try to discredit the results in the disinformation and social media and propaganda world.

JJ: Right, and speaking of propaganda and into media, when Donald Trump said he was going to try to stop vote counting, stop them counting votes in Pennsylvania and Michigan, the Washington Post said that that move threatens—the ability of people to exercise their rights? The foundations of representative government? No, it “threatens to draw out the final stages of the contest against Joe Biden.” That blase language, you know, the reporting of the shutting of polls in Black neighborhoods, of lying robocalls, of fake drop boxes, of hijacking the USPS, reporting all of that as though it were a strategy, and not an outrage, I think also goes towards ensuring more of the same.

NYT: Armed Agents Are Allowed in Ballot-Counting Venues, Justice Dept. Tells Prosecutors

New York Times (11/4/20)

SR: I think you’re right about that. You know we’ve become so, I don’t know, normalized? Maybe “numbed” is a better word to, you know, these kinds of tactics as if, “Well, this is just the way elections are run.” The thing that’s really crazy about this with these kinds of claims—and there was something in the paper today, the Justice Department had a memo, they might send armed guards in—and the truth is ever since the Republicans went after the Voting Rights Act and they gutted it, the Supreme Court gutted it in 2013, there is even less federal authority to even be present.

Now, these elections are state-regulated. They are not regulated by the federal government, with the exception of, you know, the amendments that say women can vote, and people aged 18 and stuff like that.

So the thing is, they have less authority than they ever had. Most of the authority they do have is to enforce civil rights laws, which this administration obviously is not interested in doing.

But these kinds of threats make it to the front page of the New York Times. That’s what’s crazy about this, because it just sucks the oxygen for creating context. What was this context be, by the way? It would basically say, for example, “These lawsuits are incredibly rinky-dink.”

Let me give you one example. A friend of mine who’s an election attorney was called to help represent the city of Detroit, because they were sued—that lawsuit was filed yesterday—to try to stop them from counting the votes. It was filed after the county had stopped already. This morning, they’re trying to go back into court to say, “Oh no we want to amend the suit, so we’re suing the county,” ’cause it’s the county that certifies, that makes the results official. So it’s that ham-handed. But in the meantime, they’re just making all this noise about how unfair, how it’s being stolen, and this, that and the other. And the press could be a little clearer on what really matters here.

JJ: Yeah. You asked recently in a piece, “If Trump doesn’t win legitimately, who will stop him from seizing power illegitimately?” And these past four years have been a lesson of—so many things—but in the kind of frailty or fungibility or the something of US institutions, you know? And I’m wondering, going forward, first of all, we have to keep an eye on this smoke screen, this kind of throw everything at it and see what sticks, and see what gets traction in the press, that the GOP are doing.

In terms of the voting process, what pieces do you think needs structural shoring up rather than just hoping that no one else tries to abuse them in the way that the Trump White House has? What should change, or what might need to change in the structure of the voting process to protect us?

SR: That’s really simple to answer. There’s a new generation of voting technology that’s basically being used everywhere across the country. It starts with paper ballots, in most places, that are marked by ink pens, but the way that votes are actually counted is they’re put through a scanner and a digital image is made of every ballot. And then that begins the process of correlating the dots you fill in with candidates and all. So what I’m trying to say here is: there is a much bigger body of data and records that could be used to very quickly get a sense of, “Are the votes being counted accurately?” And if you want to go in and fight about things that are not particularly clear, you can create—using those images—a library to find the paper and have an entirely different process, like a jury. And then people can really see and judge the evidence themselves. They don’t have to be told by any expert to “trust us.”

JJ: We’ve been speaking with Steven Rosenfeld. He’s editor and chief correspondent of Voting Booth. That’s a project of the Independent Media Institute. Steven Rosenfeld, thank you so much for bringing us up to date this week on CounterSpin.

SR: Thank you so much for having me.

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