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GUEST VIEW

James C. Nelson: Suppress? Subvert? Or both!

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It has been said that nothing is fool proof, because fools are so ingenious.

Substitute the word authoritarian for fool, and this piece of conventual wisdom is particularly apropos in our struggle to obtain and maintain the goal of truly free, open and fair elections as guaranteed under Montana’s constitutional right of suffrage.

Article II, Section 13 provides: “All elections shall be free and open, and no power, civil or military shall at any time interfere to prevent the free exercise of the right of suffrage.”

This right to vote is a fundamental right. It is absolutely essential to the existence and maintenance of democracy, because it is the only way that We the People are able to exercise our rights of sovereignty and to govern ourselves — also fundamental rights guaranteed under Article II, Sections 1 and 2 of our State’s Constitution.

But rightwing politicians are hell-bent on exercising absolute power of governance — substituting authoritarianism and fascism for democracy. They are doing so by interfering with our right to vote in two ways.

We are likely most familiar with what has been called “voter suppression.” These typically involve direct or indirect methods of preventing people from registering to vote, obtaining their ballot and voting.

The Voting Rights Alliance (VRA) lists 61 ways that enemies of suffrage suppress the vote. Space doesn’t permit listing them all here, but some examples include: strict voter photo ID laws; failure to accept government-issued state university and college student IDs; harsh requirements/punishments for voter registration (or ballot collection) groups; cuts to same-day registration; no paper ballots; failure to accept Native American tribal IDs; barring Native American voters through residential address requirements; failure to place (or limitations of) polling sites on Native American lands; refusal to place polling sites on college campuses; excessive voter purging; student residency voting restrictions; ex-felon disenfranchisement laws; no public outreach or notification to voters placed on inactive lists; failure to accommodate language differences; failure to accommodate voters with disabilities; deceptive flyers or robocalls; voter intimidation; police at polling places; racial gerrymandering; partisan gerrymandering; voter challengers at polls; proof of citizenship laws; not counting out-of-precinct votes; failure to pre-register 17 year olds; employers not providing time off or enough time to vote; long lines.

No surprise, some of these were enacted by the 2021 legislature and signed into law by the Governor — and are now being challenged in court as unconstitutional.

The second way that authoritarians attack the right to vote is through subversion. In his May 25, 2022, article, election lawyer Marc Elias, writing for Democracy Docket, explains that election subversion deals with how ballots are counted and how elections are certified.

Election subversion goes well beyond the Electoral Count Act, the archaic 1887 law that governs how the Electoral College results are received and tallied in Congress. (Recall the Jan. 6, 2021, Insurrection and the pressures that Trump and his cult put on the Vice President and Congress to change, ignore, and generally manipulate the states’ electoral vote tallies so as to award Trump the election he indisputably lost (in both popular and electoral votes)).

Incredibly, the Insurrection didn’t represent a turning point in election reform. Rather for the nearly 70% of Republicans who believe Trump’s Big Lie, January 6 is merely the starting point for elections in 2022, 2024 and decades beyond.

Here are some of the ways these authoritarians attempt to subvert the voters’ choices: laws which give the legislature and/or governor the power to ignore the results of an election and declare the losing candidate the winner; using false allegations of fraud or irregularities as a pretext for removing ballots from the vote totals and then certifying the incomplete results; bogus vote audits; sowing doubt as to the legitimacy or integrity of ballots; criminalizing giving voters waiting in long lines food or water; invalidating whole classes of ballots, say mail ballots; ensuring that partisan flunkies are responsible for counting ballots and certifying elections; hand-counting instead of machine-counting ballots, to name a few.

Suppression or subversion? Or why not both?

After all, what better way to guarantee that authoritarians retain power and nullify our right to vote and to govern ourselves.

James C. Nelson of Helena is a retired Montana Supreme Court justice.

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