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Michael Millemann is a lawyer who serves as a co-state lead of the Maine Chapter of Lawyers Defending American Democracy.
In his July 16 election speech, President Donald Trump offered no evidence to support his universally rejected claim that the 2020 election was “stolen.” Instead, he focused on alleged election vulnerabilities, especially to foreign interference.
His likely goals were to sow doubt about the fairness of U.S. elections, setting up future challenges to the mid-term election results, and to bully Congress into passing the SAVE America Act.
These goals are part of his unconstitutional campaign to “nationalize” and “take over” the administration of elections. At the president’s direction, the Department of Justice and FBI, as well as the Department of Homeland Security, United States Postal Service, the Social Security Administration and other federal agencies, are working hard to control the midterm elections.
These agencies are seeking to create national voter-eligibility lists and to prohibit the Post Office from delivering absentee ballots to or from people not on these lists; to create national voter registration forms and require an additional hurdle of documentary proof of citizenship with these forms; and to obtain state voter files that have sensitive private information.
Trump has dismantled longstanding national election security programs, inviting the very international election cyberattacks he condemned in his speech; fired the last members of the bipartisan Election Assistance Commission, which is supposed to help state and local officials administer elections; and directed the FBI and DOJ to seize voting records and machines.
The Constitution grants state legislatures the power to “prescribe” the “Times, Places and Manner of holding Elections for Senators and Representatives.” Congress has an override power to “make” its own election rules or “alter” state “regulations.”
These powers to structure congressional elections are the foundation of our democracy. The founders entrusted them to the state and federal legislatures, not the president.
Federal courts have invoked this unambiguous text and history to uniformly reject the president’s efforts to nationalize elections. By one litigation count, from Democracy Docket, “pro-voting forces [just] notched their 100th victory, while vote suppressors and election deniers suffered a series of court defeats.”
I have seen another voter disenfranchisement campaign.
In 1967, two years after enactment of the Voting Rights Act, I was a law student doing civil rights work in Louisiana. Despite the act’s promise, I saw the hate-inspired actions state and local officials took to maintain centuries old disenfranchisement of Black people, often in secret partnerships with the Ku Klux Klan and White Citizens Council.
They racially gerrymandered voting districts, rigged election rules, relocated polling places, removed eligible Black voters from voter registration rolls, and harassed and tried to intimidate Black voters.
Then, however, the federal government protected voting rights. The Department of Justice filed civil and criminal lawsuits, and supervised election examiners and observers in the South, to enforce the Act. The FBI provided security for federal officials and investigated voter intimidation and violence against civil rights workers.
President Lyndon Johnson’s powerful leadership in support of the Voting Rights Act is one of the great stories of the presidency.
Today, President Trump is standing this proud history on its head.
One famous constitutional delegate, George Mason, refused to sign the Constitution because he believed it would “produce a Monarchy, or a corrupt oppressive Aristocracy.” I think Trump is pushing us towards both.
In the end, what gave life to the Voting Rights Act in Louisiana in 1967 and throughout the South was the courage of many thousands of people who peacefully demonstrated, registered voters, and voted despite being met by violence, job losses, and significant economic and other injuries from those who sought to suppress their voices and their vote.
Their unyielding commitment to the right to participate in our democracy should be a model for us today, especially because the mid-term elections will likely pose threats to free and fair elections not seen in this country since then.
James Madison said it is “a dependence on the people” that “is the primary control on the government.” We, the people, need to exercise that control today.