GOP – R&R – Reachout and Rebuild

Race, Police, Education and Lies: The New Right-Wing Culture War

David Posnett — Sat, 08 May 2021 18:53:54 +0000

May 6, 2021

By Barbara Weber-Floyd reprinted from “The Resistance and Me“

This is the story of how our inability to confront our racist history is fueling a right-wing misinformation campaign against our schools, resulting in contentious, partisan school board elections in district after district around the country.

School board elections tend to be low turnout, non-partisan events. But for many districts, this year is different. On Long Island where I live, one of those races is taking place in the Smithtown Central School District. Three challengers are trying to unseat the incumbents who are up for reelection on May 18^th in a campaign unlike any school board election Smithtown has ever seen.

As in other districts, the opposition to the Smithtown school board began last year because of COVID. In some districts, parent protests were sparked by opposition to mask mandates. In Smithtown, it was opposition to a hybrid COVID modification plan of part in-classroom and part remote learning for the 2020-21 school year that set off protests. Under the slogan, “5 Days to Thrive”, meaning that all children needed to be back in school five days a week to thrive, a group of parents protested against the hybrid model. https://longisland.news12.com/smithtown-parents-continue-to-demand-their-kids-be-allowed-to-return-to-school-5-days-a-week-42529542

This was before vaccines and when the CDC was still recommending six feet between desks. The only way to achieve that was to have half the usual number of children in the classroom at any given time. The schools had moved from all remote learning at the beginning of the lockdown to the hybrid model last fall, just like the vast majority of schools in Suffolk County, but these protesting parents claimed that the board wasn’t trying hard enough to bring their children back full time. They did not view the decision as being in good faith. They claimed it was a conspiracy between the board and the New York State United Teachers (NYSUT) to favor teachers over students.

This past spring, all students came back full time, with almost all teachers and staff being vaccinated and new CDC guidelines. But that did not quiet the protests or the spread of misinformation. They evolved from COVID to the right’s newest boogeyman, critical race theory (CRT). If you are not a consumer of Fox News and other right-wing media, where it has been a major focus for years, you probably never heard of CRT until recently. I know I had not.

Last month, Newsweek focused on states, such as Idaho, passing laws banning CRT from their schools. Below is an excerpt from that article:

Kendall Thomas, a law professor at Columbia University and co-editor of Critical Race Theory: The Key Writings That Formed the Movement, told Newsweek: “CRT maps the nature and workings of ‘institutional racism.’ CRT challenges us to see that racial injustice in America is not, and has never been, just a problem of isolated instances of individual bias and private prejudice which we can solve by enacting ‘color-blind’ laws and policies.”

He added, “The right-wing weaponization of CRT aims to shut down a difficult but necessary conversation about race, racism and the future of democracy in America. The architects of these anti-CRT laws want Americans to stop talking about institutional racism, even if it means trafficking in the reckless politics of racial division they say they oppose.”

https://www.newsweek.com/what-critical-race-theory-why-do-some-want-ban-1587389

The Washington Post published a lengthy article this week about the CRT controversy under the headline, “As schools expand racial equity work, conservatives see a new threat in critical race theory.” It opens with the following sentence: “The nation’s reckoning over race has reached thousands of U.S. schools, and so, too, has a conservative backlash.” https://www.washingtonpost.com/education/2021/05/03/critical-race-theory-backlash/

Michelle Goldberg, in a May 3^rd column in The New York Times, entitled, “Why the Right Loves Public School Culture Wars,” wrote, “The Christian Coalition took off during Bill Clinton’s presidency, when the religious right engaged locally because it felt shut out of national power. Clearly some conservatives think that opposition to critical race theory could be the seed of something similar. Telling parents that liberals want to make their kids hate their country and feel guilty for being white might be absurd and cynical. It also looks like it might be effective.” https://www.nytimes.com/2021/05/03/opinion/public-school-culture-wars.html

I read all the articles. I understood what the right hoped to gain from weaponizing the fears of their base. But I still did not understand why CRT, in and of itself, was controversial. The country was founded on protecting slavery, a Civil War was fought over it and Jim Crow was a Supreme Court sanctioned system of apartheid. Of course, we have systemic racism. Is it better than it was? No one is claiming it isn’t. But to deny that systemic racism still exists in our institutions seems, to me, to require a willful blindness.

As Charles Blow, columnist for The New York Times explained in a column this week, entitled,” Is America Racist?”, “Some will concede the historical point and insist on the progress point, arguing that was then and this is now, that racism simply doesn’t exist now as it did then. I would agree. American racism has evolved and become less blunt, but it has not become less effective. The knife has simply been sharpened. Now systems do the work that once required the overt actions of masses of individual racists.” https://www.nytimes.com/2021/05/02/opinion/america-racism.html

One sign of just how charged this issue has become was my inability to convince anyone I spoke to about the Smithtown school board race to go on the record. People supporting the incumbent school board members only felt comfortable speaking to me on background. They were too afraid of being targeted if their names were used. People aligned with the challengers refused to speak to me at all.

When was the moment that the Smithtown parent protests morphed from focusing on COVID to the school board race and CRT? The earliest sign I found was a website called Save Our Schools that went online the end of last year. You might remember the Save Our Schools phrase from a movement a few years ago that supported higher pay for teachers and more equity in public education. This new SOS website had nothing to do with that movement, other than appropriating the name. It was filled with inflammatory rhetoric and accusations that sounded a lot like McCarthy-era fearmongering:

Critical Race Theory was polished in the 1950s and by the time the counterculture phenomena exploded in the 1960s with postmodernism’s entrance into the world’s philosophical framework in the 1970s, it had become a guiding manifesto for action by radical elements like the terrorists at the Black Panther Movement. Today, its contemporary offspring, Black Lives Matter (BLM) along with its symbiotic associate, Antifa, continue the “war of liberation”. https://saveourschools.me/knowledge-is-power/

It was in the downloadable newsletter on the website that I first saw this issue tied to the police. The newsletter is organized under the following section titles: “HOW DO WE SHIELD STUDENTS AGAINST CRT? PROTECTING THE BLUE SO THEY CAN PROTECT YOU. HOW BOE RACES TURNED INTO DO OR DIE ELECTIONS.” https://saveourschools.me/wp-content/uploads/2021/04/Save-Our-Schools-April_2021_v2.pdf

I came across an earlier newsletter that was circulating on social media, but was no longer on the website. This one specifically tied the three school board challengers to the SOS website. One of the challengers, Stacy Murphy, is the parent who spoke during the 5 Days to Thrive protests. Below are screenshots of that three-page earlier newsletter.

The website and the newsletter were not the only sources online. Partisan groups started posting about it on social media, all of them spreading the same misinformation about CRT and the school district. They included: Republican Congressman Lee Zeldin, who represents Smithtown, and has announced he is running for governor of New York next year; a fringe group of the Smithtown Republican Party; and the Suffolk Police Benevolent Association (PBA), the police union.

It was highly unusual for any organization, other than NYSUT, to endorse school board candidates. It was particularly upsetting for some residents to see the police union get involved. One Suffolk PBA post went so far as to name a Smithtown teacher and labeled him anti-police because he had signed an online Black Lives Matter petition against having armed policemen, as opposed to security guards, in the school. The PBA used this one teacher as their example of the school’s war on police, which could be stopped only by voting for the three challengers.

I called up the Suffolk PBA and asked for the press office. I stated that I am a journalist with an online blog and I was working on an article about the Smithtown School Board election. I had two questions. Why was the police union getting involved and could you please take down the post that named the teacher? Given the climate, it felt dangerous to me. I was told that the teacher’s social media post was public and therefore fair game. He then said he had no comment for my article and hung up the phone.

I reached out to the three challengers’ campaign through their Facebook page and asked them for an interview. I posed the same question, asking why was the police union getting involved? They did not respond.

The Smithtown BOE tried to remain positive and stick with an upbeat campaign for the three incumbents running for reelection. I shared their virtual postcard on Facebook. The postcard features the incumbents’ accomplishments and the text that accompanied it reminded residents to vote on May 18^th for a board that had shown their support for public education.

But by this time, the anti-CRT messages were going viral on social media. In public and private Facebook groups, heated discussions were taking place for and against CRT, even though there was no evidence that critical race theory was even taught in the Smithtown schools. At the recent school board meetings, the challengers’ supporters were loud and confrontative. It seemed to take the board, which had only just come back to in-person meetings, by surprise. Recordings of the meetings are on the BOE website. http://www.smithtown.k12.ny.us/boardofeducation/board_meeting_audio.

It became clear that the board needed to address the misinformation powering the challengers’ campaign head on. They released the following letter to all Smithtown residents, in both an email and on the district’s public Facebook page.

How astonishing that a school board needed to publicly explain what they were not doing. Will the letter be enough? There is one more school board meeting, on May 11^th, for them to make their case to the public and for parents to ask more questions. The more people understand what is driving this challenge, the more they can make an informed decision. While Smithtown is a conservative-leaning community, a Republican stronghold, I highly doubt they want school board members influenced by misinformation and conspiracies making decisions about the welfare of the teachers and students in their school system.

And for the rest of us, we need to keep a close eye on this new right-wing dog whistle and how it is being employed. In 2009, the Tea Party ran a racially charged misinformation campaign against the first African American president and the passing of the Affordable Care Act (ACA). Then, their dog whistles were “birtherism” “death panels” and “socialism.” They successfully rode that campaign back to power, taking back the House in the 2010, the Senate in 2014 and the White House in 2016. I have no doubt that is the intent here.

Stand Up For Our Democracy

David Posnett — Thu, 18 Feb 2021 21:29:36 +0000

Democracy is never a given. January 6th proved that. A wrathful president unable to accept he lost an election, an angry mob stoked by bogus claims of a stolen election, a subservient caucus of Republicans willing to do the bidding of a corrupt president. On that day they all came together in a violent clash that almost derailed our democracy.

Fortunately, the will of the people prevailed — for now. But Trump has said his political movement “has only just begun.” Already we see what that means: punishing Republicans who dared to speak the truth and acknowledged that Trump lost the election and that he incited the insurrection, and rewarding those, like Marjorie Taylor Greene, who traffic in absurd conspiracy theories and seek to demonize those on the other side of the political divide.

In the coming months, each of us will have to decide if we are willing to stand up for our democracy, to support and protect it — by paying attention, by calling out lies, by working to roll back voter suppression laws, by voting for candidates who will uphold their oath to the Constitution, and by remembering that our congressional representative, Lee Zeldin, voted to overturn the results of a free and fair election.

Because if there’s one thing history has shown us, it’s that a failed coup often precedes a successful one.

Sincerely,

CAROL DEISTLER

Published in The East Hampton Star, Letter to the Editor, February 18

Attacking the Heart of Our Democracy

David Posnett — Mon, 18 Jan 2021 22:48:39 +0000

The Capitol building symbolizes the heart of our democracy; it is the place where the people’s will — the certification of the next duly elected president of the United States — is carried out.

After hours of chaos and sickening violence erupted on Wednesday — the horrors perpetrated by the lawless mob that laid siege to the Capitol, lawmakers barricaded in offices fearing for their lives, countless attacks, and five dead — the desecration of the symbols of our democracy ended, but the legislative assaults were just beginning.

As Congress reconvened to do their sworn duty, our congressman, Lee Zeldin, in direct violation of the oath of office he took to uphold the Constitution, voted to reject the state-certified election results of Arizona and Pennsylvania. Think about that. He sought to throw out millions of lawfully cast ballots, all the while knowing full well that the results had been legally challenged multiple times and were irrefutably legitimate.

The mob may have physically trashed the People’s House, but it was Zeldin and 146 fellow Republicans who drove a rhetorical stake through the heart of our democracy, attempting a legislative coup. He should never be allowed to walk the hallowed halls of the Capitol again.

Sincerely,

CAROL DEISTLER

Letter to the Editor printed in The East Hampton Star, January 14

Flood of Lies

David Posnett — Thu, 07 Jan 2021 20:39:12 +0000

Facts still matter. That’s why Donald Trump and his minions try so hard to obscure them in a flood of lies and conspiracy theories. But the facts remain — Joe Biden won the 2020 presidential election by more than seven million votes, and two months later Donald Trump still can’t face losing. After weeks of relentless, baseless attacks on the legitimacy of the election, Trump called the Georgia secretary of state, demanding that the election official “recalculate” and “find” him votes, and threatened criminal charges when his demand was rebuffed.

There are no two sides to this story; there is no middle ground. You are either on the side of democracy, or you’re on the side of a desperate mob boss president who is willing to do whatever it takes to stay in power. Lee Zeldin has made very clear which side he is on. It is shameful that he represents C.D. 1.

Sincerely,

CAROL DEISTLER

Published in The East Hampton Star, January 7, Letter to the Editor

Assault on America

David Posnett — Thu, 17 Dec 2020 19:33:38 +0000

Democracy has taken a beating during the past four years. From the day Trump was sworn in, the moral yardstick we use to measure presidents by morphed into a moral slide rule, constantly adjusted by obsequious Republicans anxious to cover for the lies Trump spewed nearly every time he opened his mouth. We’ve been inching our way toward this crisis ever since.

And now, when Americans handed Donald Trump a resounding seven-million-vote defeat, Trump is doing what he has done his entire life — threatening friends and enemies alike to do his bidding and flooding the courts with frivolous cases. The lawsuit filed by Texas, a mixed salad of lies, debunked claims, and crackpot conspiracy theories that had already been rejected by state and local courts, was a frightening attempt to have the Supreme Court throw out the legal votes of 20 million people in four states.

Lee Zeldin joined in on the assault on America, signing a brief backing the lawsuit, along with 125 of his fellow House Republicans. That so many in the Republican Party have revealed themselves to be willing to steal a presidential election is a warning to us all: American democracy may still be standing, but it is on very shaky ground.

Sincerely,

CAROL DEISTLER

Printed as Letter to the Editor, The East Hampton Star, December 17

The Days After Election Day

David Posnett — Sat, 31 Oct 2020 15:30:32 +0000

As our democracy hangs by a rapidly fraying thread, it is critical that each of us do everything we can to ensure that Donald Trump is voted out of office, and once voted out of office, that he actually LEAVES office.

“The Day After Election Day,” https://www.nytimes.com/2020/10/30/opinion/trump-election-officials.html?action=click&module=Opinion&pgtype=Homepage an article in The New York Times, is an account of officials and aides who are worried the president will use the power of the government to keep himself in office. Following are highlights (lowlights is probably a more accurate term) from the article for those who can’t access it:

“Even though they can’t predict exactly what will happen, their concerns range from the president welcoming, then leveraging, foreign interference in the election, to encouraging havoc that grows into conflagrations that would merit his calling upon U.S. forces.

“I think the biggest shock he had — ’cause his assumption was the generals, ‘my generals,’ as he used to say and it used to make us cringe — was he …just assumed that generals would be completely loyal to the kaiser….And when we weren’t, that was a huge shock to him….

“This shock, and his first two-plus years of struggle with seasoned, expert advisers, led to an insight for Mr. Trump. It all came back to loyalty. He needed to get rid of any advisers or senior officials who vowed loyalty to the Constitution over personal loyalty to him. Which is pretty much what he proceeded to do.

“….Having loyalists at both the Department of Justice and D.N.I….allows him, potentially, to coordinate two key agencies of the government — secret intelligence and prosecution — toward his own political ends.

“Key officials in several parts of the government told me how they thought the progression from the 3rd to the 4th might go down.

“…Disruption would most likely begin on Election Day morning somewhere on the East Coast, where polls open first….A group could just directly attack a polling place, injuring poll workers of both parties, and creating a powerful visual — an American polling place in flames, like the ballot box in Massachusetts that was burned earlier this week — that would immediately circle the globe.

“Violence and conflict throughout that day at the polls would surely affect turnout, allowing Mr. Trump to claim that the in-person vote had been corrupted….There are many scenarios that might unfold from here, nearly all of them entailing weeks or even months of conflict, and giving an advantage to the person who already runs the U.S. government. There will likely be some reckoning of the in-person vote drawn from vote tallies and exit polls. If Joe Biden is way ahead in these projections…Mr. Trump may find himself having to claim fraud or suppression that amounts to too large a share of votes to seem reasonable. Inside the Biden campaign they are calling this “too big to rig.

“No matter how the votes split, there’s an expectation among officials that Mr. Trump will claim some kind of victory on Nov. 4, even if it’s a victory he claims was hijacked by fraud….If the streets then fill with outraged people, he can easily summon, or prompt, or encourage troublemakers among his loyalists to turn a peaceful crowd into a sea of mayhem.

“…But across the government, another official argues that citizens may yet manage to rise to the challenge of this difficult election, in a time of division.

“The last line of defense in elections is the American voter,” he told me. “This is the most vulnerable phase,” now and the days immediately after Election Day, “where we’re so eager to have an outcome, that actors both foreign and domestic are going to exploit that interest, that thirst, that need for resolution to the drama.”

And there you have it. The days and weeks after the election are likely to be a referendum – not on Donald Trump, but on each and every one of us. When everything is on the line, it’s time to do everything you can. Stay tuned.

Are we Ready?

David Posnett — Mon, 26 Oct 2020 14:52:55 +0000

The Love – Black Eyed Peas and Jennifer Hudson

“the choice could not be more clear”

Voters Should Not Be Intimidated

David Posnett — Fri, 09 Oct 2020 13:43:45 +0000

Submitted by Francesca Rheannon:

There are strict limits on what the military, law enforcement, and private militias or other vigilantes can do at the polls.https://www.brennancenter.org/our-work/research-reports/voters-should-not-be-intimidated

By Sean Morales-Doyle ,

From The Brennan Center

Last Updated: October 7, 2020 Published: October 6, 2020

As Election Day nears, President Trump has increasingly threatened to instigate voter intimidation. First, he has insinuated that he will deploy law enforcement officers or call up the National Guard to root out election-related crimes at the polls or call up the National Guard. (Spoiler alert: voter fraud is vanishingly rare). The president has abused his authority over law enforcement before, most notably when he deployed federal agents — and threatened to deploy the military — in response to domestic protests earlier this summer.

On top of this, in the first nationally televised presidential debate the president called for his supporters to “go into the polls and watch very carefully,” especially in Philadelphia. The Republican National Committee (RNC) claims to be gearing up for an aggressive “ballot security” operation involving 50,000 poll watchers, which many worry could include plans to intimidate voters. In 2017 a court freed the RNC from a 35-year-old consent decree that required the committee to obtain judicial approval of any such operations to ensure that they would not illegally intimidate or discriminate against voters or interfere with their right to vote.

There is a shameful history in parts of the country of armed officers, on duty or off, targeting Black voters and other voters of color for intimidation. Their mere presence in polling places could raise reasonable fears among groups that are frequently the target of racial profiling and police misconduct.

But the law is crystal clear: it is illegal to deploy federal troops or armed federal law enforcement officers to any polling place. State and local laws and practices place limits on the role of law enforcement and poll watchers. And a host of federal and state laws, many of which also carry severe criminal penalties, prevent anyone — whether a law enforcement officer or a vigilante — from harassing or intimidating voters.

The U.S. Military

Bottom Line: It would be illegal — and in many cases a federal crime — for the president to deploy the military to interfere with the election.

The Concern: President Trump has threatened to deploy the military to U.S. cities in response to protests; these threats have often been linked to his partisan attacks on Democratic mayors and governors. Although Trump has not explicitly said he would deploy troops to the polls, his threats to send in law enforcement echo his recent response to those protests. These threats, and Trump’s politicization of the military in other contexts, recently prompted two members of Congress to ask Chairman of the Joint Chiefs of Staff Mark Milley whether he would obey an order to send active duty military to polling places.

Why It’s Illegal: Any deployment of troops or other armed federal agents to a polling place is a federal crime (unless the country is literally being invaded). The law, which dates back to 1948, says:

Whoever, being an officer of the Army or Navy, or other person in the civil, military, or naval service of the United States, orders, brings, keeps, or has under his authority or control any troops or armed men at any place where a general or special election is held, unless such force be necessary to repel armed enemies of the United States, shall be fined under this title or imprisoned not more than five years, or both; and be disqualified from holding any office of honor, profit, or trust under the United States. footnote1_pbthrbt 1

Other federal statutes also prohibit the military from interfering in our elections. footnote2_9e40ia2 2 And the Posse Comitatus Act of 1878 bars troops from being deployed on U.S. soil generally. footnote3_kdryp8q 3 There are exceptions to the law that Trump has tried to exploit, but they do not allow him to circumvent the explicit prohibition on using the military to interfere in elections.

In short, the president cannot deploy the military for any purpose connected to an election. The military knows this. A 2018 Defense Department directive confirms that military personnel “will not conduct operations at polling places.” footnote4_4asq9ar 4 Likewise, when asked by the two members of Congress whether he would send troops to polling places, General Milley made clear, “I do not see the U.S. Military as part of this process.” Any officers who try to cross this line could be prosecuted.

The Department of Homeland Security

Bottom Line: As with the military, it would be a crime for the Department of Homeland Security (DHS) to deploy any of its agents — including those from the Federal Protective Service, Customs and Border Protection, and Immigration and Customs Enforcement (ICE) — in connection with an election.

The Concern: Over the summer, in response to civil unrest accompanying the wave of peaceful protests that followed the murder of George Floyd, the Trump administration recklessly deployed agents from the Federal Protective Service and Customs and Border Protection to Portland, Oregon, and other U.S. cities over the objections of state and local officials (a number of whom have filed lawsuits that are pending in federal court). The administration claimed that the agents had been deployed only to protect federal property, but they allegedly assaulted protesters and carried out arrests far from federal buildings. This history, coupled with the president’s recent threats, raises understandable fears that DHS forces might be deployed to intimidate voters.

False rumors are also now spreading about plans for ICE agents to patrol the vicinity of polling places and even arrest voters they suspect of being undocumented. Some of these rumors appear to have come from groups that are intentionally trying to suppress the vote among Latinos and other people of color. These rumors create real fear in communities ICE has targeted with increasingly aggressive tactics.

Why It’s Illegal: Any deployment of DHS agents in the vicinity of a polling place or any place where votes are being counted would violate the same criminal statute that applies to all armed federal officers. The Department of Justice’s own election crimes manual confirms that the statute bars any armed federal agent from election sites. footnote5_a81tngb 5 Indeed, when asked about the president’s threat to send agents to the polls, the acting head of DHS responded point-blank: “We don’t have any authority to do that at the department.”

It is also illegal for anyone to intimidate or threaten voters, disenfranchise voters, or target voters based on their race or ethnicity — federal agents included. The use of federal agents to intimidate voters is a crime under section 11 of the Voting Rights Act of 1965 (VRA). footnote6_kr4w7zk 6 Courts have held that the law forbids tactics such as following alleged suspects, recording license plate numbers, and brandishing weapons. footnote7_ojs1pyq 7 The consequence for an intentional violation? Up to five years in prison. footnote8_zt6hq83 8

Federal law also makes it a crime for people (including government officials) to conspire to deprive someone of the right to vote or the right to be free from discrimination. footnote9_eg4sn4p 9 For this offense, violators face up to 10 years in prison. The Constitution too prohibits government officials (including ICE and other federal agents) from targeting voters of color for enforcement actions. footnote10_sd5sjdy 10

Even aggressive DHS operations unconnected to an election may be out of bounds during the election. The Constitution limits otherwise legal federal law enforcement activities if they interfere with areas of fundamental state concern. For example, federal courts have blocked ICE agents from entering state judicial facilities to arrest undocumented immigrants because it disrupts states’ ability to operate their own court systems. footnote11_t4jfary 11 The same logic would bar operations by ICE (or other parts of DHS) that could significantly interfere with a state’s ability to conduct a free and fair general election. footnote12_cq1hexe 12

The Department of Justice

Bottom Line: At the polls, the Department of Justice (DOJ) is limited to observing elections for compliance with federal voting rights laws for subsequent enforcement efforts. It cannot interfere with the voting process or send agents to investigate other laws.

The Concern: Attorney General Barr, who has frequently repeated the president’s lies about purported voter fraud, has asserted the right to send DOJ agents to the polls for a variety of reasons, including to investigate potential election crimes. His statements, coupled with the president’s own threats to have U.S. attorneys at the polls, have led to fears that Trump and Barr will seek to use DOJ’s authority to meddle in the election.

Why It’s Illegal: DOJ is subject to the same restrictions as other federal agencies, including the absolute bar on deploying armed agents to polling places or other locations where an election is being held. As the department’s own election crimes manual states, prosecutors have “no authority to send FBI special agents or [U.S. marshals] to polling places.” footnote13_2dadkyu 13 Even investigative activities anywhere near polling places require special permission. footnote14_o5e05w5 14

In short, Attorney General Barr, to the extent that he is asserting a right to deploy armed agents to the polls or other election-related sites while voting is ongoing, is simply wrong. If he did try to send armed agents to polling places during an election to investigate potential crimes or “enforce civil rights” (two pretexts he’s mentioned), he would be committing a federal crime. Legitimate election crime investigations should be conducted only after voting is complete, as typically happens, including most recently in the wake of revelations of absentee ballot tampering by a GOP operative in a 2018 North Carolina congressional race. Election Day disturbances should be handled by state officials.

While armed DOJ agents are not allowed at the polls, the department may under certain circumstances send unarmed representatives under its election observation and monitoring programs. These unarmed civilian federal employees are tasked only with observing and monitoring voting processes for compliance with the federal Voting Rights Act and the Help America Vote Act and reporting back to a court or DOJ’s Civil Rights Division. footnote15_9h3i7qb 15 They have no power to enforce the law. footnote16_6wy6jf0 16 In fact, monitors do not even have the authority to enter polling places without permission from state or local election officials. footnote17_76gi9yx 17 The federal observer program, which was severely limited by a Supreme Court decision that gutted a core provision of the Voting Rights Act, footnote18_6k9uh36 18 is now restricted to a small number of places where a court has ordered it (right now, just Evergreen, Alabama, and Pasadena, Texas). footnote19_5nx244x 19

State and Local Law Enforcement

Bottom Line: State and local law enforcement can sometimes be at polling places, but never under orders from the president and always subject to numerous restrictions.

The Concern: The president’s threat to send law enforcement to the polls included local officials such as sheriffs. Even without such threats, the long history of discriminatory policing and official voter suppression in many places provides ample reason to worry that the presence of any law enforcement at the polls may intimidate some voters, especially voters of color.

What’s Legal and What Isn’t: The federal government, including the president, has no authority whatsoever over state and local law enforcement, footnote20_eszyxqh 20 and certainly no power to call them to the polls.

State and local law enforcement officers may have the right to be at the polls for the purpose of helping election officials ensure a safe voting environment. If, for example, private citizens try to interfere with the right to vote, election officials may call law enforcement in to protect the public and ensure no one is deterred from voting.

But there are a variety of legal restrictions placed on state and local law enforcement. In some states, including Pennsylvania and California, officers who show up to the polls without being called there by election officials have committed a crime. footnote21_bennng3 21 In a number of other states, including Florida, North Carolina, Ohio, and Wisconsin, officers at the polls must obey orders from election officials. footnote22_iy8omtz 22 And under no circumstances may state or local police intimidate voters, prevent people from voting, or target particular racial or ethnic groups. These are all violations of federal law. footnote23_1nnbis9 23 Many states also have their own robust voting rights protections. footnote24_lxctrkk 24

In practice, election officials and law enforcement typically develop plans ahead of elections to ensure that voting processes will be orderly and fair, including through intrastate working groups coordinated by election officials to game out and plan for a variety of scenarios.

The National Guard

Bottom Line: The president cannot deploy armed National Guard units to the polls or exert any control over units at the polls. There are also limits on states’ use of the National Guard, including the general prohibitions on intimidation and discrimination.

The Concern: As with the military and federal law enforcement, President Trump has misused his authority over the National Guard. His June deployment of eleven states’ guard units to counter protests in Washington, DC, was widely criticized. Given this history and the president’s recent statements, some worry about guard units being deployed to harass or intimidate voters or election officials.

What’s Legal and What Isn’t: National Guard units under federal command are part of the U.S. military, footnote25_x0jejnn 25 and so deploying them to the polls would be a federal crime, just like it would be for the other military branches. Moreover, using them for law enforcement purposes would in most circumstances violate the Posse Comitatus Act.

These prohibitions do not apply to guard units under the command of a state government. Some states, however, have laws of their own prohibiting the deployment of guard units to the polls. In California, for example, it is a misdemeanor for active-duty guard members (like other law enforcement officers) to enter voting locations in many circumstances. footnote26_u2gott0 26 In every state, guard units under state command are also subject to the same federal and state voting rights and antidiscrimination laws as state and local law enforcement, which means that they would be subject to criminal penalties for voter intimidation or other forms of election interference.

During the primaries, in the face of a nationwide poll worker shortage due to Covid-19, several states did deploy guard units to serve as emergency election workers. Those units were generally unarmed and served as ordinary poll workers or performed other administrative tasks. Such a deployment, while appropriate in the case of last-minute emergencies, is generally a last resort; during the primaries the deployments came at the request and direction of election officials. There should be less need for similar deployments this November, as election officials have been working hard to recruit new poll workers. (In the event that guard members are needed to fill staffing gaps, they should wear civilian clothes and their duties should be limited to those of poll workers.)

Guard units may also be deployed in “hybrid” status, in which they serve a federal mission set by the president or secretary of defense (and are paid with federal funds) while remaining under state command and control. footnote27_s9kbqz7 27 State governors, however, must consent to use their guards for the mission in question. footnote28_s8wkfyd 28 Moreover, guard units in this status arguably act under the authority of the president or secretary of defense and therefore would still be subject to the criminal prohibition on federal military officers stationing “armed men” at the polls. Guard units in hybrid status are still subject to state laws limiting their use at polling stations, as well as all federal and state voting rights and antidiscrimination laws.

Off-Duty Law Enforcement

Bottom Line: Off-duty members of the military, National Guard, and law enforcement are entitled to vote in person, serve as poll workers, and engage in other democratic activities at the polls, but they must follow the same rules as other members of the general public.

The Concern: Decades ago, the Republican Party recruited off-duty police officers to show up to the polls armed and wearing official-looking uniforms to engage in so-called “ballot security” efforts targeting Black and Latino communities. As a result of the Democratic Party suing to challenge the practice, the GOP’s operations were monitored by a federal court for 35 years. In 2017 the court order that provided for that monitoring expired. This year, in the lead-up to the first presidential election free from such oversight, the Republican National Committee is reportedly preparing to send out tens of thousands of poll watchers. The concern is that history will repeat itself.

What’s Legal and What Isn’t: Poll watchers are allowed to monitor elections in most states. Off-duty military members and law enforcement may generally take part in such activities, and of course may also be at the polls to vote themselves.

But, as noted, voter intimidation and discrimination are illegal and often criminal. Many laws, such as the VRA, apply to private as well as governmental actors, and so would cover individuals who are off duty and acting in their personal capacities.

Many states also flatly prohibit openly carrying a gun into a polling place. footnote29_fcz7waj 29 Some states, including Texas, prohibit carrying concealed weapons as well. footnote30_odelmpa 30 Many states prohibit weapons in specific types of polling places, such as government buildings. footnote31_kifh1gz 31 Others have specific rules against brandishing a firearm in a way that could intimidate voters. footnote32_htpn1zt 32

The tactics that the RNC used to intimidate Black and Latino voters are just as illegal today as they were in the 1980s. Anyone who knowingly engages in such tactics can and should face legal consequences.

Private Militias and other Vigilante Poll Watchers

Bottom Line: Voter intimidation by poll watchers is illegal, and there are legal restrictions on who can engage in poll watching and rules in place to ensure accountability.

The Concern: During the first presidential debate, President Trump called for his “supporters to go into the polls and watch very carefully,” and specifically suggested that they do so in Philadelphia. In the same debate, he told the Proud Boys, a violent extremist organization, to “stand by.” Especially in light of the expiration of the consent decree restricting the Republican Party’s “ballot security” operations, these statements have led to concerns of vigilante poll watchers engaging in voter intimidation.

Why It’s Illegal: Not just anyone can show up and watch the polls. Most states limit who can serve as a poll watcher, often to appointed representatives of a candidate or a party and, in some cases, to neutral, nonpartisan observers. In some states, such as Pennsylvania, poll watchers must be registered to vote in the county where they seek to observe the polls. These limits help deter misconduct and ensure accountability. In addition to limiting who can serve as a poll watcher, most states have strict limits on what poll watchers can do. States including Georgia, Florida, and Michigan prohibit poll watchers from speaking to voters. footnote33_n5tpzya 33 Many states allow poll watchers to challenge voter eligibility, but they must follow specified procedural and substantive limits. Poll watchers who abuse their roles may be ejected from the polling place.

State and local laws also restrict armed militias from appearing at the polls. Most states have laws or constitutional provisions prohibiting private groups from engaging in unauthorized paramilitary or law enforcement activities. Georgetown Law School’s Institute for Constitutional Advocacy and Protection (ICAP) published a 50-state guide documenting the laws that state and local governments can use to stop private militias from engaging in paramilitary activities in public spaces. footnote34_p5qp5pj 34

Armed groups or individuals who claim to offer security services at polling stations will also be in violation of state and local laws. Virtually all states have laws that strictly regulate the provision of private security services, particularly armed security services. These laws typically establish licensing and firearms-permitting procedures to ensure security guards are properly vetted, trained, and insured. Depending on the state, providing security services without a license can result in civil fines and/or criminal penalties. footnote35_7098qfq 35

Even apart from all of these limits, both federal and state laws outlaw voter intimidation and conspiracies to prevent eligible Americans from voting, and election officials are prepared to respond and remove bad actors. State and local election officials also have plans and protocols in place to address any disruptions at the polls. Most have strengthened those plans as the threat level has increased. They will not be caught off guard.

Conclusion

Federal and state laws clearly prohibit any deployment of the military, law enforcement, or vigilantes to the polls to intimidate voters or engage in any operation unrelated to maintaining the peace while elections are being held. The president’s suggestions that law enforcement should act inappropriately or that vigilantes will storm the polls are simply designed to discourage voters, particularly voters of color, from voting and to undermine faith in our elections. It is important to call out Trump’s comments for what they are: not just calls for illegal action but also attempts at voter suppression. Voters should not be intimidated.

Endnotes

footnote1_pbthrbt 1. 18 U.S.C. § 592.
footnote2_9e40ia2 2. See 18 U.S.C. § 593 (punishing any officer of the military who seeks to “prescribe or fix . . . voter qualifications,” intimidate voters, or impose election regulations on a state “different from those prescribed by law”); 52 U.S.C. 10102 (“No officer of the Army, Navy, or Air Force of the United States shall prescribe or fix, or attempt to prescribe or fix, by proclamation, order, or otherwise, the qualifications of voters in any State, or in any manner interfere with the freedom of any election in any State, or with the exercise of the free right of suffrage in any State.”).
footnote3_kdryp8q 3. 18 U.S.C. § 1385.
footnote4_4asq9ar 4. U.S. Department of Defense, Defense Support of Civil Authorities (DSCA), Directive No. 3025.18, Mar. 19, 2018, 7, https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodd/302518p.pdf?v.
footnote5_a81tngb 5. Richard C. Pilger, ed., Federal Prosecution of Election Offenses, 8th ed., U.S. Department of Justice, December 2017, 9, https://www.justice.gov/criminal/file/1029066/download.
footnote6_kr4w7zk 6. 52 U.S.C. § 10101(b) (2018); see also 18 U.S.C. § 594 (2018) (“Whoever intimidates, threatens, coerces, or attempts to intimidate, threaten, or coerce, any other person for the purpose of interfering with the right of such other person to vote or to vote as he may choose . . . shall be fined under this title or imprisoned not more than one year, or both.”).
footnote7_ojs1pyq 7. Democratic National Committee v. Republican National Committee, No. 81-3876 (DRD) (NJ 2009).
footnote8_zt6hq83 8. 52 U.S.C. § 10308.
footnote9_eg4sn4p 9. 42 U.S.C. § 1985(3).
footnote10_sd5sjdy 10. U.S. Const. Amend. I, V, XV.
footnote11_t4jfary 11. See, e.g., State v. U.S. Customs and Immigration Enforcement, 431 F.Supp.3d 377, 392 (S.D.N.Y. 2019).
footnote12_cq1hexe 12. One note of caution: if ICE agents try something illegal, poll workers and others should not take it upon themselves to call them on it. Anyone who tries to prevent an ICE agent from apprehending someone who may be in the United States unlawfully can themselves be held criminally liable, even if the agent is acting illegally. Anyone who witnesses ICE agents near the polls should immediately contact state and local election officials and immigrant and voting rights organizations — including by calling 866.OUR.VOTE, a nonpartisan voter protection hotline staffed by trained volunteers.
footnote13_2dadkyu 13. Pilger, Federal Prosecution of Election Offenses, 9.
footnote14_o5e05w5 14. Pilger, Federal Prosecution of Election Offenses, 9.
footnote15_9h3i7qb 15. Pilger, Federal Prosecution of Election Offenses, 85–86; and 52 U.S.C. §§ 10302(a), 10305(d).
footnote16_6wy6jf0 16. Pilger, Federal Prosecution of Election Offenses, 85n40.
footnote17_76gi9yx 17. U.S. Commission on Civil Rights, An Assessment of Minority Voting Rights Access in the United States, 2018, 268, https://www.usccr.gov/pubs/2018/Minority_Voting_Access_2018.pdf; cf. 52 U.S.C. § 10305(d) (authority to enter polling places granted to observers).
footnote18_6k9uh36 18. See Shelby County, Ala. v. Holder, 570 U.S. 529, 557 (2013) (declaring coverage formula in 52 U.S.C. § 10303(b)); and 52 U.S.C. § 10305 (providing for observers in jurisdictions covered by the formula in § 10303(b)).
footnote19_5nx244x 19. Patino v. City of Pasadena, 230 F. Supp. 3d 667, 729-30 (S.D. Tex. 2017); and Allen v. City of Evergreen, Civil No. 13-107, 2014 WL 12607819, * 2 (S.D. Ala. Jan. 13, 2014).
footnote20_eszyxqh 20. Printz v. U.S., 521 U.S. 898, 935 (1997) (“The Federal Government may neither issue directives requiring the States to address particular problems nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.”); see also New York v. U.S., 505 U.S. 144, 188 (1992).
footnote21_bennng3 21. 25 Pa. Stat. and Cons. Stat. Ann. § 3520 (West 2020); Cal. Elec. Code § 18544 (West 2020); John Tanner, “Effective Monitoring of Polling Places,” Baylor Law Review 61 (2009), 60–61.
footnote22_iy8omtz 22. Fla. Stat. Ann. § 102.031(2) (West 2019); N.C. Gen. Stat. Ann. § 163-48 (West 2020); Ohio Rev. Code Ann. § 3501.33 (West 2020); and Wis. Stat. Ann. § 7.37(2) (West 2020).
footnote23_1nnbis9 23. 42 U.S.C. § 1983; 18 U.S.C. § 594.
footnote24_lxctrkk 24. See, e.g., Fla. Stat. Ann. §104.0615 (West 2020); Mich. Comp. Laws Ann. § 168.733 (West 2020); Nev. Rev. Stat. Ann. § 293.710.
footnote25_x0jejnn 25. 10 U.S.C. §§ 10105, 10106 (2018) (“The Army National Guard while in the service of the United States is a component of the Army.”). Note that parallel statutes apply to the Air Force National Guard.
footnote26_u2gott0 26. California makes it a felony for any “person in possession of a firearm or any uniformed peace officer, private guard, or security personnel or any person who is wearing a uniform . . . in the immediate vicinity of . . . a polling place without written authorization of the appropriate city or county elections official.” Cal. Elec. Code § 18544 (West 2020); and Tanner, “Effective Monitoring of Polling Places,” 60–61.
footnote27_s9kbqz7 27. See, e.g., 32 U.S.C. § 502(f).
footnote28_s8wkfyd 28. See 32 U.S.C. § 502(f) (providing for duty on “operations or missions undertaken by the member’s unit at the request of the President or Secretary of Defense”).
footnote29_fcz7waj 29. National Conference of State Legislatures, “Polling Places,” Aug. 18, 2020, https://www.ncsl.org/research/elections-and-campaigns/polling-places.aspx.
footnote30_odelmpa 30. Tex. Penal Code Ann. § 46.03(a)(2) (West 2020).
footnote31_kifh1gz 31. Giffords Law Center to Prevent Gun Violence, “Location Restrictions,” accessed Sept. 28, 2020, https://giffords.org/lawcenter/gun-laws/policy-areas/guns-in-public/location-restrictions/.
footnote32_htpn1zt 32. See, e.g., Pennsylvania Department of State, “Guidance on Rules in Effect at the Polling Place on Election Day,” 2016, 3 https://www.dos.pa.gov/VotingElections/OtherServicesEvents/Documents/DOS%20GUIDANCE%20ON%20RULES%20IN%20EFFECT%20AT%20THE%20POLLING%20PLACE%20ON%20ELECTION%20DAY%2010-16.pdf (“Individuals inside or outside the polling place who behave aggressively with a firearm or who ostentatiously demonstrate that they are carrying a firearm and that behavior either is intended to or has the effect of intimidating voters will be removed, reported to the appropriate authorities for investigation and prosecution.”).
footnote33_n5tpzya 33. Ga. Code Ann. § 21-2-408(d); Fla. Stat. Ann. § 101.131(1); and Michigan Department of State Bureau of Elections, The Appointment, Rights and Duties of Election Challengers and Poll Watchers (Sept. 2020), 12, https://www.michigan.gov/documents/SOS_ED_2_CHALLENGERS_77017_7.pdf.
footnote34_p5qp5pj 34. “Prohibiting Private Armies at Public Rallies: A Catalogue of Relevant State Constitutional and Statutory Provisions,” Institute for Constitutional Advocacy and Protection, September 2020, https://www.law.georgetown.edu/icap/wp-content/uploads/sites/32/2018/04/Prohibiting-Private-Armies-at-Public-Rallies.pdf. ICAP has also published fact sheets for every state with recommendations for the public regarding what to do when private militias are observed near polling places. “State Fact Sheets,” Institute for Constitutional Advocacy and Protection website, https://www.law.georgetown.edu/icap/our-work/addressing-the-rise-of-unlawful-private-paramilitaries/state-fact-sheets/.
footnote35_7098qfq 35. Links to each state’s licensing procedures and regulations can be found at websites promoting security guard licensing and training courses, such as securityguard-license.org and securityguardtraining.com.

Trump Is Killing Us

David Posnett — Fri, 09 Oct 2020 13:40:05 +0000

Letter to the Editor published in The East Hampton Star, October 8

Corrosive Effects

To the Editor:

The deadliest threat facing the American public isn’t the coronavirus, it’s the toxic brew of arrogance and ignorance that Trump and his loyalists have force-fed the country: the relentless denial of the risks of Covid (it’s like the flu, it only affects the elderly, it will disappear), the mocking of wearing a mask (not a good look), the touting of quack remedies (bleach, anyone?), the lack of testing (more positive tests make us look bad), and the raucous indoor rallies.

This lethal cocktail resulted in untold suffering and tens of thousands of unnecessary deaths, and yet Trump barely seemed to notice, stating that the death toll “is what it is.”

But recent events have finally succeeded in focusing Trump’s mind. After egregiously flouting C.D.C. guidelines (as well as common sense) by introducing his Supreme Court nominee in a jam-packed Rose Garden with no social distancing and few masks, there is now a growing list of high-profile, Covid-infected attendees. And then there was the debate in Cleveland, where part of the agreed-upon rules was that all audience members wear masks. Apparently believing they are part of an elite brethren for whom rules don’t apply, Trump’s entourage shooed away those offering masks as if they were annoying gnats. But reality finally pierced the Trump bubble, and now the president and others in his inner circle are infected.

The corrosive effects of this administration will be felt long after they have gone on to their respective cell blocks (what can I say, I’m an optimist who still believes in law and order). To reclaim our collective sanity, and our democracy, we must vote this reprehensible con man and his Republican enablers out. Only then can we start rebuilding our place in the world with a president who understands the gravity of the situation, and who has sound plans for dealing with the most serious health crisis in our lifetimes.

Sincerely,

CAROL DEISTLER

Amy Klobuchar: the Cruz Hypocrisy regarding SCOTUS

David Posnett — Sun, 27 Sep 2020 12:58:06 +0000

https://www.youtube.com/watch?v=XtyrrtM7iME&feature=youtu.be

People are already voting and they don’t buy in to phony Republican arguments for replacing Justice Ginsburg as soon as possible to insure enough Trump support on SCOTUS to overturn the election results if needed. Trump is not hiding his intent. This would be the death of democracy and the birth of tyranny.

We need an uprising from the majority of American voters. A revolution against tyranny. Yes, when the minority uses their ill begotten power to suppress the will of the people, that is tyranny and wide spread protests will ultimately happen.

If you are still hesitating about whether we are heading to a dictatorship, read this from Dana Milbank about the parallels between the present day Trump regime and the burning of the Reichstag on February 27, 1933!

Now lets go do our part: Phonebank! Text! Letters! Postcards!