Restoring Confidence in Elections

Before the Next Election—————-

                A commentary

                By J. F. Kelly, Jr.

                Among the things that Americans are most weary of are Covid-19 pandemic restrictions, political polarization, demonstrations and protests that deteriorate into violence and destruction and contentious elections. Sorry, but the latter is the topic for today because the mid-term primaries are already less than a year and a half away and the last thing that Americans need is another contested election.

                With all that’s going on in the news and trying to keep track of the progress in dealing with the pandemic, most Americans probably didn’t even notice that the U.S. Supreme Court declined to hear several appeals of lower court decisions upholding election procedures in states won by Joe Biden that Donald Trump had challenged unsuccessfully. Even if Mr. Trump had prevailed in those challenges, it would not have changed the outcome of the election. However, one case in particular might have provided the high court with a convenient opportunity to weigh in on the election integrity issue.

                It takes four justices to vote in favor in order for the court to agree to hear a case. In a case involving Pennsylvania, the state’s Supreme Court, invoking that state constitution’s free and equal elections clause, authorized state election officials to count mailed ballots if they were received within three days of the deadline prescribed by state law, even without proof of when they had been mailed. This involved about 10,000 ballots, some lacking legible post marks, that were counted contrary to state law. The number was insufficient to affect the outcome in Pennsylvania but in a closer election it could have. Three justices, Clarence Thomas, Samuel Alito and Neil Gorsuch, dissented from the court’s decision against hearing the case.

                Justice Thomas wrote in his dissenting opinion, that “Changing the rules in the middle of the game is bad enough. Such rule changes by officials who may lack the authority to do so is even worse.” Quite so, and the fact that this happened in at least three battleground states is a prime reason why so many Americans say they lack confidence in the integrity of our elections.   Whether or not these irregularities are of sufficient gravity to justify such lack of confidence is really beside the point. That the lack of confidence is as widespread as it is now is precisely the point and it must be addressed before the mid-term election next year. As the Wall Street Journal editorialized on Feb. 23, the Supreme Court missed an opportunity to deal with what amounted to a judicial rewrite of a state’s election laws.

                As everyone who bothers to vote should know, the Constitution of the United States assigns to the various state legislatures the responsibility for determining the rules for the conduct of elections including procedures and timelines for dealing with mailed ballots. That responsibility is clearly expressed in Section 4 of Article I which states that ”The Times, Places and Manner of holding Elections for Senator and Representative, shall be prescribed in each state by the Legislature thereof.” It says further that Congress may at any time by law make or alter such Regulations but says nothing about delegating such powers to state or election officials. Since these procedures may differ among the states, it is imperative that they be clear, unambiguous and understood by the voters of that state and that the rules be followed to the letter of the law. As Justice Thomas opined, they should not be changed “in the middle of the game” or by state officials who may lack the authority to do so. 

                The U.S. Supreme Court justices, and Chief Justice John Roberts in particular, have been reluctant to weigh in on election matters which it rightly considers are the purview of state legislatures. But the court should have seized this opportunity to send a message to the states that they are expected to strictly follow their own laws regarding elections, not permit changes to election procedures that are not eneacted by their legislatures and to ensure that election results are certified in a timely manner.

                The Covid-19 pandemic certainly justified the widespread use of voting by mail and it is likely that its use will grow. But voting by mail greatly increases the amount of handling of ballots involved, adds to the risk of mishandling and thus for irregularities to occur. Last minute changes to rules and timelines by election officials and interventions by lower courts leads to charges of unfairness and increases public skepticism regarding the integrity of the elections. There is little doubt that some states perform better than others in this regard, Florida being one example. After its “hanging chad” fiasco of 2000, which resulted in Supreme Court intervention to determine who would be the next president, Florida overhauled its procedures resulting in smooth and uncontested elections and timely certification of results. It should serve as a model for some other states.

February 27, 2021

A Party Divided

The Future of the GOP—————————–

                A commentary

                By J. F. Kelly, Jr.

                Nancy Pelosi’s House of Representatives continued its vendetta against Donald Trump by voting to impeach him for a second time, this time with slightly less than two weeks remaining in his one-term presidency. They did so knowing that the votes were lacking in the Senate to convict him and, because of Senate rules, it wouldn’t reconvene until the day before Joe Biden was to be inaugurated, the last full day of Trump’s term. Hence, there was insufficient time to conduct a proper impeachment trial while he was still in office.

                The language of the Constitution and the founders’ clear intent regarding the purpose of the impeachment process is to remove a president from office if found guilty of high crimes or misdemeanors. There is no mention of pursuing this process against one who will have already left office although it is not expressly forbidden. Nevertheless, the Democrat-controlled House leadership hoped to persuade enough Republicans to join Democrats in reaching the two-third vote necessary to convict. Predictably, they failed to do so in a hurried farce of an impeachment trial, without witnesses and presided over, not by the Chief Justice of the Supreme Court, but by the President Pro-tempore of the Senate, Sen. Pat Leahy.

                The result was a 57 to 43 vote in favor of acquittal. Acquittal sounds fuzzier than not guilty, but to be clear, it means the same thing. Now, you and I may believe that Mr. Trump is as guilty of inciting a riot as O.J. Simpson was of murder, but in our democracy, people are not tried in the court of public opinion but in a court of law. In an impeachment trial, the Senate acts as the court and the senators as the jurors and for the record, Mr. Trump was found not guilty. The Senate, therefore, could not proceed to vote on barring him from running for public office in the future which would have required only a simple majority vote. Nice work, Democrats. Trump can now claim victory and display “Trump Found Not Guilty” headlines when he resumes campaigning.

                Which he should not do if he cares anything about what’s left of the Republican Party. He is not an asset to the GOP, but rather a disruptive and divisive force. Although his endorsement might help some regional candidates in areas where Trump supporters remain strong, it’s unthinkable to me that Republicans would be dumb enough to nominate him for any office again. His approval rating, after all, never topped 50% and his re-election defeat and refusal to accept it certainly didn’t enhance that rating. Moreover, his acquittal does not mean that he is immune from criminal charges and civil suits. If he were to run for office again he would arguably be the most-flawed candidate in history.

                In spite of those flaws, he remains a potent force in the party because of his accomplishments in office, but not as a candidate. He accomplished more in one term than some two-term presidents and he did so with virtually zero cooperation from the opposition party and constant attacks on the legitimacy of his presidency. Re-election was his to lose but he blew it by his boorish behavior and attacks on anyone who disagreed with him. In spite of Republican election gains in the House of Representatives and in the states, his refusal to accept defeat, attempts to intimidate Georgia’s governor and election officials and clumsy meddling in the Georgia run-off election for two Senate seats cost the GOP control of the Senate. His accomplishments in office will be remembered, but the GOP will need a new standard bearer who knows how to act like a president or they will lose members.

                Unfortunately, they will probably lose members anyway and I am not sanguine regarding the future of the grand old party. Liberal immigration policies implemented by the Biden Administration will likely soon turn Texas, a red state, blue.  Affluent liberals are leaving crime-infested cities from high-tax, Democrat-run northern states and fleeing to places like Texas, Florida, Georgia and other southern destinations. Unfortunately, they’re taking their politics with them. They already changed Georgia from red to blue. If Texas and Florida go blue, it’s all over for the GOP, at least until voters tire of one-party, liberal rule and the taxes and policies that come with it.

February 18, 2021

The Search for Extremism in the Military

                By J. F. Kelly, Jr.

                While public approval and support for Congress, the media and other American institutions is low and trending lower, respect for the U. S. military has been a notable exception. A 2019 poll showed that 83% of respondents said they had confidence in the military and Gallup’s annual measurement of public confidence in institutions consistently ranks the military as the top-rated institution among Americans. This ranking exceeds that of organized religion, the U. S. Supreme Court, the presidency, law enforcement and, not surprisingly, the media and Congress, whose latest approval rating is 18%.

                It’s a matter of no little concern, then, to those of us who devoted most of our adult working lives to military service that there seems to be a widespread perception in the liberal media and among some young liberal politicians that extremism is rampant throughout the armed forces. Much of this may be based on press reports and an analysis by CNN and National Public Radio finding that 14% and just under 20%, respectively, of those charged with crimes in the Jan. assault on the Capitol Building were either past or current members of the military and the only rioter who was killed happened to be a veteran of 14 years of service in the Air Force.

                The San Diego Union-Tribune, in a recent editorial, characterized this as an “Outsize(d) role by military members in the insurrection” and opined that it was not surprising. I, on the other hand, found the comment quite surprising and other parts of the editorial as well, even coming from the increasingly-liberal newspaper serving a region that hosts the world’s largest Navy-Marine base complex and a large number of active duty and retired members and their families. That any active or retired members of the military were involved in the rioting is indeed a cause for concern but to say that there was an outsize(d) role by military members is without justification. Past members of the military are private citizens and veterans, no longer members of the military. Those careerists who completed sufficient service to qualify for retirement retain certain obligations, but those who were discharged without staying long enough to qualify for retirement cannot be counted as military members.

                Newly-confirmed Defense Secretary Retired Army General Lloyd Austin’s military stand down order requires military leaders at all levels to select a day to lead discussions focusing on the oath of office, impermissible behavior and procedures for reporting extremist behavior. This will, hopefully, make it clear that acts of extremism by members of the military will not be tolerated. Meanwhile, the Navy reportedly has announced a comprehensive effort by a task force to address bias in its ranks. It will reportedly consider proposals to rename ships, increase diversity in promotion and eliminate hate speech, among other things. These actions may be needed but the danger of overreaching is very real.

                The Union-Tribune editorial, for example, stated that “It is unacceptable that a Navy task force found Black members were far less likely to be officers than White members based on (their respective) numbers in enlisted ranks. Officer promotions in the Navy are based on fitness as measured by fitness reports (performance appraisals), potential, experience in demanding assignments and the needs of the service for specific skills and experience, not on race or any other accident of birth. There are no racial quotas in the Navy. It’s all about demonstrated performance and the needs of the service, not diversity. If that should result in more Black officers at a given time than White officers, then so be it.

                 In the same newspaper, an article appeared describing a discussion between Rep. Sara Jacobs (D-San Diego) and Rep. Jason Crow (D-Colo.) which took place just after the Jan. 6 Capitol riot. “It was pretty scary,” Jacobs said, recalling that she “immediately went back to my office once we were all clear and had a glass of whiskey with Jason, who’s my neighbor, and then decided it was important that we call for impeachment.” Nothing like whiskey to help with a tough decision.

                Crow, an Army veteran, reportedly said, without evidence, as the media is fond of adding, extremism is a growing problem in the military. “We are developing,” he was quoted as saying, “a military culture, a military class in our country. That’s not good for our democracy, to have a military/civilian divide.” He added that there should be more diversity in recruitment.

                Whose democracy is he talking about? There is plenty of diversity in our military. How could he not have noticed? And what’s wrong with having a strong military culture. It’s fundamentally a unifying warrior culture among a band of brothers and sisters and thank God for it. It doesn’t divide the military from the civilian community. The military, in fact, exists to defend civilians. The sole purpose for having a military is to win wars and keep the nation and its people safe. It’s not just a job. It’s a calling and where diversity is concerned, the military is probably the most colorblind institution left in America. Reformers will mess with it at the nation’s peril.

February 11, 2021

The Future of Trump———————————-

                A commentary

                By J. F. Kelly, Jr.

                After the Jan. 6 assault on the Capitol Building by a mob of Donald Trump supporters following a rally, I wrote that he should resign, leaving his Vice-president, Mike Pence, to serve out his remaining days in office. There wasn’t sufficient time, I wrote, to conduct a proper impeachment trial which could drag on for weeks, preoccupying Congress and interfering with a smooth transition. Resignation was also recommended by a number of media sources, including the Wall Street Journal.

                Since the Senate, by rule, was not scheduled to reconvene until Jan. 19, the day before Inauguration Day, an impeachment trial would therefore extend into President Joe Biden’s term and take place after Mr. Trump had already left office. This raised questions regarding the constitutionality of conducting an impeachment trial of an ex-president, since Section Three of Article I of the Constitution states in part that “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or profit under the United States…”

                Resignation would have resulted in the immediate departure of Mr. Trump instead of leaving him in office for nearly two more weeks while he posed, at least according to Democrat congressional leaders, a threat to the security of the United States. Resigning in disgrace, as Richard Nixon did, would have been viewed by most as a tacit admission of guilt. His cabinet might have forced this decision on Mr. Trump by threatening to resign en masse if he refused. But they didn’t and Democrats in Congress, having spent the better part of four years trying to de-legitimize the 2016 election and accomplishing little else of substance, opted to satisfy their lust for revenge rather than focusing on the real challenges facing the country. Instead they will be focused on an impeachment trial that will keep Donald Trump in the spotlight, possibly acquit him, keep alive the fiction that the election was stolen and keep his followers energized.

                 Exactly what good will this do for a nation suffering from a deadly pandemic, its effect on jobs,  the economy and the cause of national unity which Mr. Biden has promised to pursue? That promise would have come across as more sincere had he urged his fellow Democrats to get on with the job of legislating which they, presumably, were elected to do. But clearly, Democrats are fixated on Donald Trump. They just can’t seem to get enough of him and they apparently need to keep him around as a punching bag and someone to blame when things go wrong for them. Going after ex-presidents is what happens in banana republics and dictatorships. It’s a main reason why dictators cling desperately to power. They fear for their personal safety when they leave office. Rulers like Vladimir Putin, Xi Jingping and Kim Jong-un ruthlessly persecute critics because they may pose a threat to their remaining in power and consequently their safety.

                Democrats in power today may be prone to the mistaken belief that they actually are the government rather than members of a political party who temporarily control branches of government, perhaps only until the next election. If you have the privilege of holding office and have blind faith in the infallibility of your beliefs and policies, it’s easy to image that you actually are the government and that any criticism of you or your policies is tantamount to an attack on the government. Therefore, your critics are disloyal and must be silenced.

                Trump’s behavior, character and lack of judgment, not his policies, are what did him in. In this space and elsewhere, I wrote on Jan. 20, 2016 that “Trump, still at the top in the GOP polls, is the Democrats’ greatest gift. He plays loose with the truth, is bombastic, egotistical and sometimes crude. Those who feel that they would be comfortable with a Trump presidency are probably also comfortable with chaos which is what a Trump presidency would bring.”  It did indeed bring chaos and the rally on Jan. 6 which incited a crowd to violence was the final straw. On Jan. 27, again in this space, I wrote: “Donald Trump speaks in sound bites and can’t seem to put three sentences together to form a coherent response to a question without getting off track…He classifies people as winners or losers and makes crazy promises.” Again, on several occasions, I wrote here and elsewhere that the GOP should “dump Trump” that he was “a buffoon” that he was not qualified to be president and was disrespectful to women and nearly everyone else who disagreed with him. Space prevents listing all the examples here but, if you wish, check the archives if your memory fails or you are an occasional reader.

                But opposing his nomination does not mean that one must oppose his policies or dispute the results of the 2016 election which he won. And if anyone tells you that you must apologize for supporting those policies, or for having voted for him or for any of your political opinions, my advice is to remind them, politely, of course, and while observing proper social distancing, that this is, thank God, America and not Russia, the People’s Republic of China, Cuba, Venezuela, North Korea or any other of the mostly communist countries where free speech isn’t a right and any criticism of the party or those in power can get you in serious trouble. Meanwhile, here’s hoping that Republicans have learned a lesson and will nominate someone next time who, besides having some good ideas, actually knows how to be a president, act like one, respects people and who thinks before acting, speaking or tweeting. And here’s hoping also that Democrat leaders will get over their lust for revenge, learn to win gracefully, demonstrate that they know how to govern and actually seek national unity which means a lot more than just demanding that Republicans agree with them.

February 8, 2021

In Pursuit of Unity

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The Path to Unity——————————-

                A commentary

                By J. F. Kelly, Jr,

                A thoughtful and well-composed letter from a reader commended me for a column calling on Americans to rally around our new president and commander-in-chief and urging Republicans to seek common ground with Democrats in pursuit of national unity. While I deeply appreciate his kind words and agree with the need for both sides of the political divide to tone down the rhetoric, I must respectfully take issue with the statement that “sowing more doubt regarding the fairness of our recent election is not (consistent with) a call for unity”. That doubt, justified or not, already exists and I sincerely believe that we must acknowledge it and explore reasonable means of ameliorating it and restoring confidence in the integrity of our elections if we are to achieve that unity which we all should be pursuing.

                Let me be clear that I fully accept the results of this election and deplore any efforts to delegitimize it, just as I did following Donald Trump’s election. Moreover, I accept the legal findings that claims of election fraud by Trump supporters were not supported by sufficient evidence. But those findings mean just that: claims of election fraud were not substantiated by sufficient evidence. They do not prove that irregularities did not occur. However, I agree with responsible state authorities that even if they did occur, they did not amount to fraud and even if they did, it was not of sufficient magnitude to change the outcome of the elections.

                But several polls conducted after the election found that about half of Republican respondents and even as many as 13% of Democrat respondents believed that Donald Trump “rightfully won” the election and, depending upon how the question was phrased, many felt the election “was rigged” in some states. I don’t share that opinion but tens of millions of Americans do and therein lies the problem. Like so many aspects of life, perception matters greatly.

                Voter turnout in 2020 was the highest in over a century in spite of a raging pandemic. Yet, only two-thirds of eligible voters bothered to vote in spite of easy access to mail-in ballots. One survey into the reasons given for why a third of those eligible didn’t vote cited problems with the voting systems, problems with both candidates, issues with ballot access or registration, lack of interest and some simply responded “politics”, presumably indicating a dislike of politics as a reason. In my view, these reasons can be distilled into three: apathy, the belief that their vote didn’t matter and distrust in the integrity of the process. This distrust must be acknowledged and it is not inimical to the cause of unity to urge that the rules governing the conduct of elections, which are, under the Constitution, the responsibility of the various state legislatures to determine, be reviewed and tightened, not to restrict access by voters, but to ensure that in our zeal to count every vote only legal votes are counted, that they are counted only once, that ballots, including mailed ballots, are properly obtained, executed, verified and processed in accordance with state laws and that timelines are such that they can be counted and the totals certified in a timely manner to avoid prolonged post- election counting which invariably arouses suspicion on the part of voters.

                In my column, I argued against eleventh-hour changes to the rules and deadlines by election officials. The reader wrote that these procedural changes were necessitated by the pandemic. But that pandemic struck in early 2020. States had nearly the rest of the year to get things right and deal with necessary changes to mail-in voting procedures. Most did. Why were last minute changes in some battleground states necessary?

                Rallying around our president and hoping and praying for his health, success and for national unity does not mean that those of us on opposite sides of the political spectrum will always agree or abandon deeply-held principles. Our unity may never be perfect but it will be much enhanced if we always respect the right of others to express their opinion no matter how much we may disagree. The road to unity is a difficult path, made more so by overconfidence in the infallibility of one’s own opinion.

January 31, 2021