Framing Memo #1: Legitimate Elections
The rights of voters are being attacked on every front. Trump and friends’ favorite tactic is pre-emptive projection: they accuse us of what they are about to do, so when we accuse them, it sounds like yet another “he said/she said” partisan fight.
Republicans: “They are trying to steal the election through mass voter fraud. We are doing everything we can to fight voter fraud.”
Democrats: “They are trying to steal the election through mass voter suppression. We are doing everything we can to fight voter suppression.”
Voters: “Screw you guys! I’m going home.”
Purveyors of disinformation say that if you can’t win on the merits, flood the zone. Chaos is the autocrat’s best friend. With literally hundreds of voter suppression cases working their way through the courts, how do we break through the crazy?
We win the debate by putting it all in a larger context: by giving the public a set of criteria they can use to judge right and wrong for themselves, PHILOSOPHICAL PRINCIPLES that are morally unassailable and that can be applied consistently across this entire chaotic collection of offenses. Doing this will also give us the consistent and clear message that so often eludes us.
- We believe in democracy.
- All authority comes from the consent of the governed.
- To be legitimate, elections have to express the will of the people.
- The right to vote is what makes us free.
- Our right to vote shouldn’t have to be spelled out in the constitution. This is a democracy. The right to vote should be self-evident and inalienable.
- Everyone must be able to exercise their right to vote by casting their vote.
- Every vote must be counted.
That is the standard by which everyone should judge right and wrong when it comes to our elections. Every individual case can be tied back to this theme.
Changing the Fraud Frame
Trump and his Republicans have spent years trying to frame our elections exclusively in terms of voter fraud.
How does the voter fraud frame work?
Fraud is a very powerful word. It comes with judgment (fraud is bad) and behavioral expectations (we should fight it). Trump likes to evoke the value of “purity” by describing ballots as tainted, polluted or disgusting.
The fraud frame causes people to judge using the criteria: “Will these actions prevent voters from committing fraud?” If that is the only criteria, actions taken to remove duplicate voter registrations or require IDs appear on the surface to be morally right.
However, voter fraud isn’t the only threat to the legitimacy of our elections. If the legitimacy of our government depends on our elections accurately reflecting the will of the people, we also have to take into account voter suppression and vote theft. People also need to judge according to the criteria: “Were eligible voters prevented from voting?” and “Were legitimate votes not counted?”
The fraud frame narrows the discussion to the issue of fraud and puts suppression and theft outside the frame and outside the conversation. We need to expand the frame to include all three by appealing to the higher values involved, specifically our most universally cherished and endangered value: democracy.
The Democracy Frame
Five Important Points
1. All authority comes from the consent of the governed. The legitimacy of our government depends on our elections accurately reflecting the will of the people.
Republicans are focusing on election integrity. We should focus on election legitimacy. For an election to be legitimate, it must reflect the will of the people.
People know voter suppression is bad, but we need to put more emphasis on the fact that an election can be completely fraud free and still be illegitimate if it doesn’t reflect the will of the people due to voter suppression.
Engaging in voter suppression to defy the will of the people is “subversion of democracy.” Fraud may be bad, but subversion of democracy is worse.
Whether we are arguing that an individual ballot should be counted or that a specific election law is wrong, up to and including posing a moral challenge to gerrymandering or the electoral college, the single most important question should be, “How does _______ impact the ability of this election to accurately represent the will of the people?”
2. Election laws should not suppress more legitimate votes than they prevent illegitimate votes.
Does the rarity of voter fraud mean that continuing to fight it is morally wrong? Not necessarily. People can claim to have a zero-tolerance policy and be “tough on” voter fraud. It’s not the raw numbers that matter. It’s the relative numbers.
People don’t necessarily know that fighting fraud can cause suppression and that the impact is grossly disproportionate. If we re-focus people on the higher goal of having our elections accurately reflect the will of the people, it will be clear that fighting fraud isn’t worth the cost in lost legitimate votes.
When it comes to getting a point across, a good analogy is better than a mountain of facts. We could use analogies like, “The cure is worse than the disease.” or, “It’s like amputating a limb to cure a hangnail!” or, my personal favorite, “Would you put 300 innocent people in jail to prevent one guilty person from going free?” Feel free to make up analogies of your own.
This study from Harvard, Stanford and Microsoft showed that the Cross Check program probably eliminated about 300 legitimate votes for every one case of double voting prevented. If you’re willing to suppress 300 legitimate votes to prevent one case of fraud, you don’t really care about election integrity.
3. The right to vote is what makes us free. If you take away our vote, you take away our freedom. There must be an extraordinarily high bar for the adoption of any procedure that makes it harder for people to vote.
We assume people know that depriving people of their right to vote is bad, but we rarely ever remind people why. Depriving someone of their ability to vote is depriving them of their first and most fundamental freedom:
Because we want to live in a functional society, we agree to obey the law, but that doesn’t mean we give up our freedom. What makes us free is that we get to choose the people who make those laws.
Without democracy, there is no freedom.
Do we really have to make the case for democracy? Yes, we absolutely do. Right now, Republicans are test-ballooning potential arguments against democracy itself. With increasing criticism of the undemocratic nature of the Senate and Electoral College, they know that they are going to need a counter argument to the principle of majority rule. Senator Mike Lee is arguing that safeguarding personal liberty is more important than democracy.
We have to remind people, emphatically, that without democracy there is no freedom, and without majority rule there is no democracy.
4. Our right to vote shouldn’t have to be spelled out in the constitution. This is a democracy. The right to vote should be self-evident and inalienable. If you make it so people can’t exercise that right by casting their vote, you are violating their rights.
The constitution doesn’t explicitly say that we have the right to vote. It just says we can’t be deprived of the right to vote due to race, sex or age. Wait – doesn’t that imply that we have that right to begin with? Do state legislatures have the right to pass laws that people have to be 6 ft tall to vote? Or be right-handed?
If people can’t legislate or judge in a way that respects the right to vote as fundamental, self-evident and inalienable, they have no business being in office or on the bench. It’s not about partisanship. It’s not a “he-said-she-said” or “both sides just want to win”. If you fight to make it easier to vote, you are pro-democracy. If you fight to make it harder to vote, you are anti-democracy.
We fight voter suppression and sometimes lose in court, but that doesn’t mean we should give up. Legislators are elected. Political norms have power. We can still fight them in the court of public opinion. The Supreme Court may be able to give Alabama Secretary of State Merrill the right to stop curbside voting, but we still have the right to give him 17 kinds of political hell for it. Election officials who are anti-democracy deserve to lose their jobs.
People have the right to vote. If you put up barriers, if you make it so people can’t exercise that right by casting their vote or you don’t count their vote, you are violating their rights. Everything that makes voting harder, from limiting drop boxes or early voting locations, to requiring excuses or witnesses for absentee voting, is a violation of your right to exercise your rights.
5. If the voter is eligible to vote and you can tell who they intended to vote for, you must count the ballot.
If it can be determined that a person is eligible to vote, it shouldn’t matter if there are minor procedural mistakes. Many states recognize this and allow people to cast provisional ballots or testify to their eligibility by signing an affidavit, or have procedures for curing faulty mail in ballots.
There will be many lawsuits over whether a ballot or group of ballots should be counted. There is a ton of conflicting case law, but many judges rule by the “intent of the voter” standard: if you can tell who or what the voter intended to vote for, you must count the vote.
The only questions that matter are, “Is this person eligible to vote in this election?” and “Can we figure out who or what they intended to vote for?” Whether your problem is “naked” ballots, or missing middle initials, or lack of ID, or bubbles not filled in completely, if those requirements are met, that vote must be counted.
We could fight every battle on a case by case basis, changing our criteria depending on what serves our best interests, but in doing so we could lose the war of public opinion and lose the country to a crisis of legitimacy that we helped create.
Instead, we can set the criteria by which the validity of the election will be judged, both in the courts and in the court of public opinion. We can remind people what democracy really means, why the right to vote is so fundamentally important and why making it harder for people to exercise that right is unacceptable.
We have to remind people that we are capable of coming together as a country to hold free and fair elections based on democratic principles that we share, and that if we stick by these principles, our elections will be legitimate.
Starting now, our mantras must be, “the will of the people” and “voting is freedom.” The more we say them now, the less likely we’ll have to paint them on placards and march in the street.