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US presidential debates entertaining but the election is not all that free or fair


While the Democratic presidential nominee Joe Biden seems well ahead in the opinion polls among likely voters at the national level and comfortably placed in some of the key battleground states, what could be more significant is the response among registered voters, as Trump‘s son-in-law Jared Kushner is quoted as saying in Bob Woodward’s recently-published book “Rage”.

Opinion polls are, as the term indicates, based on the views of that segment of the registered voters who are likely to vote and who openly express their opinions and preferences.

The problem with this, according to the pollster Robert Cahaly of the Trafalgar Group who predicted a Trump triumph in 2016, is that opinion polls ignore the hidden Trump vote among conservatives and people who are for the president but who are just not interested in sharing their opinions readily.

These people are not interested in participating in opinion polls. Cahaly has predicted that Trump will win the 2020 election with a minimum high in the 270s out of the 538 Electoral College votes and that this number could increase substantially depending on the depth of the hidden Trump vote.

While FiveThirtyEight, the website which analyses opinion polls, has given Biden an 88% chance of victory in the 2020 presidential election, it has to be remembered that FiveThirtyEight also gave Hillary Clinton an 87% chance of victory in the 2016 election!

Then there is the basic question of how free and fair the elections will be. With the Republicans having governors in 26 of the 50 states and controlling the legislature in 29 states, everything from registration of new voters to the location of polling stations can be manipulated at the state and local level, following a US Supreme Court ruling on June 25, 2013.

Take what happened in the November 2018 governor’s election in Georgia. which was described by the former US president Jimmy Carter as running “counter to the most fundamental principle of democratic elections–that the electoral process be managed by an independent and impartial electoral authority.”

Carter was commenting on the blatant conflict of interest where the Republian gubernatorial nominee Brian Kemp was running the governor’s election in his capacity as Georgia’s incumbent secretary of state. And Carter would have known a thing or two about free and fair elections since he had earlier won the 2002 Nobel Peace Prize for, as the citation put it, his unstinting commitment to “advance democracy and human rights” in all parts of the world.

Kemp had indulged in “text-book voter suppression”, The Guardian newspaper was told on November 10, 2018, by Derek Johnson, the president of the National Association for the Advancement of Colored People (NAACP). And according to an article by Prof Carol Anderson in the November 2018 edition of the 163-year-old reputed monthly magazine, The Atlantic, county officials in Georgia closed down over 200 polling stations, most of them in poor and minority neighbourhoods.

When the Democratic Party’s Afro-American gubernatorial nominee Stacey Abrams launched a campaign for the registration of new voters, her opponent Kemp, in his capacity as secretary of state, got the state legislature to pass an “exact-match” law to ensure that not just the names and the hyphens but even the typos for those listed in the voter-rolls were identical with what was there in the state database for social-security numbers and driving licences.

It was estimated that 70% of the voters whose registration was kept pending were Afro-Americans though blacks accounted for one-third of the state’s population. A Georgia organization called Fair Fight Action cited massive voter-suppression on fronts ranging from the sweeping purges in voter-rolls to shuttered precincts, voting-equipment failure and absentee ballots deemed to have arrived too late to be counted.

There were over 40,000 calls to an Abrams hotline documenting problems during polling. As a strap below the headline in Prof Anderson’s article put it, “If the (Georgia) Governor’s race had taken place in another country, the (US) State Department would have questioned its legitimacy.”

What happened in Georgia was facilitated by the ruling of America’s apex court some seven years and four months ago. On June 25, 2013, the full 9-judge bench of the US Supreme Court decided by a margin of 5 to 4 that Article 4(b) of the Voting Rights Act of 1965 was unconstitutional, thereby opening the floodgates to changes in the voting laws or procedures at the state and local level.

Until the 2013 decision, Section 5 stipulated that certain states with a long history of voter-suppression were required to obtain federal preclearance before implementing changes in voting laws or procedures. The Supreme Court made Section 5 infructuous by striking down Section 4 (b) which contained the coverage formula determining which jurisdictions were subject to preclearance.

Pre-clearance had led to increases in minority Congressional representation and increases in ethnic minority voting. The Supreme Court ruling made it easier for state officials to make it harder for ethnic minority voters to vote. For instance, within five years of the ruling, nearly 1,000 polling stations were closed, many of them in predominantly Afro-American counties.

Changes in voter-registration and reductions in voting locations can reduce voter turnout. There were also cuts to early voting and purging of voter-rolls. Virtually all restrictions on voting subsequent to the Supreme Court ruling were by Republicans.

Will there be a repeat of the Georgia model during the 2020 presidential and congressional elections? Already we have instances. In Texas’ most populous Harris County, with 2.4 million registered voters (the majority of them Democrats), only one dropbox has been allowed for mail-in voting in a 2,000-square mile area which means many elderly citizens living alone have to drive more than 30 miles to drop their ballots. And that too during a pandemic.

According to a CNN.com report published on October 16, voters in North Carolina, Georgia and states across the country where early voting has begun have been waiting in socially-distanced queues for hours to cast their ballots since they don’t trust the US Postal Service to deliver mail-in ballots.

This summer, the newly appointed US Postmaster General, Louis DeJoy (a businessman and major Trump donor), made changes to operations that led to delays in mail-services and sparked outrage among Democrats that there could be an impact on handling the pandemic-induced surge in absentee ballots for the 2020 elections.

Any problem in the handling of absentee ballots could hurt the Democrats. An NPR/Marist poll conducted in October showed voters planning to vote in person on the election day of November 3 supported Trump by 62 to 35% while those planning to vote by mail supported Biden by 73 to 23%. And voters planning to cast their ballots at an early-voting location supported Biden by 65 to 32%.

In case of a dispute, the matter can, of course, be taken to court. It is here that Trump could have an advantage. According to a Pew Research Center report dated July 15, 2020, Trump has so far appointed two US Supreme Court judges (Neil Gorsuch and Brett Kavanaugh) as well as nearly 200 judges with lifetime appointments to the lower federal courts. Trump has appointed more federal appeals court judges than any other recent president at this point of time in his presidency. In effect, Trump has appointed nearly a quarter of all active federal judges in the USA.

What happens if the dispute finally reaches the US Supreme Court? Everyone remembers the 2000 presidential election when the Republican nominee George W Bush won Florida by a margin of just 537 votes after the recount was stopped by the US Supreme Court and this enabled him to scrape past Al Gore in the Electoral College and become the 43rd president.

Will the US Supreme Court once again be the deciding factor in the 2020 presidential elections? Associate Justice Ruth Bader Ginsburg ((RBG) passed away on September 18, 2020, and she was one of the four liberal judges of the 9-judge Supreme Court.

However, in certain cases like that concerning LGBTQ rights and imigration, the conservative Chief Justice John Roberts sided not with his four conservative colleagues but with the liberal judges. Those close to Roberts say he wants the Supreme Court to appear non-partisan.

With RBG no more and Amy Coney Barrett (Trump’s appointee to replace RBG) likely to be confirmed, the conservative judges on the US Supreme Court will constitute a majority even without the Chief Justice. Which is a point Trump has openly made while nominating Amy Coney Barrett.

The polarization has reached a stage where the US can no longer claim to be a role model for free and fair elections.





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