How Safe are Mail-in Ballots

We're in the middle of a pandemic.  COVID-19 cases and death are still on the rise.  And some experts expect us to have a more powerful second wave in the fall.  The fall just so happens to be when the United States will be holding its federal elections, including the presidential election.  How can we have an election when we may need to limit personal contact to avoid spreading the coronavirus known as SRS-CoV2.  The answer appears to be expanding the use of mail-in ballots.

Wisconsin showed us all what the problems could be if we try to hold an election in the period of widespread isolation.  The Democratic governor pleaded with the Republican-led legislature to postpone the election.  They refused.  He tried to expand voting by mail.  The Republicans resisted.  The legislature didn't provide the additional resources necessary to process the explosion of requests for mail-in ballots.

Meanwhile, most of the poll workers were senior citizens, a high risk group for catching COVID-19 and experiencing the worst of the symptoms.  They warned election officials that they weren't going to show up to run the polling places.  There were no where near enough poll workers to open all of the polling locations.  This was a huge problem in big cities, such as Milwaukee.  Wisconsin saw huge lines, with waiting times in excess of three hours to vote, when people really needed to stay home.

If Wisconsin had been prepared, and ready to process the higher demand for mail-in ballots, it could have avoided its election disaster.

But the Republican Party, led by President Donald Trump, oppose mil-in ballots.  Well, except for themselves.  We all are very familiar now with the press conference where Trump was confronted with the fact that he voted as an absentee by a mail-in ballot in the latest Florida election.  When asked why that was ok, his response was simply, "Because I'm allowed to."  Meanwhile, Republicans don't want the choice to vote by mail to be available for more of the general public.

Five states have switched to elections run entirely through mail-in ballots.  In fact, the expected battle ground states for the 2020 presidential election all permit voting by mail, without requiring an excuse for why the voter cannot physically make it to the polls on Election Day.  They are Arizona, North Carolina, Georgia, Ohio, Pennsylvania, Michigan and Wisconsin.  In some ways, the availability of voting by mail is a moot issue.  So why do Republicans oppose mail-in ballots?

The proffered reason is fraud.  According to Republicans, mail-in ballots are fraught with the potential for fraud.  We need to require identification to fight against fraud at the polls.  How can we be sure that the actual voter is the one who submits the mail-in ballot?

Keep in mind, the President has voted by mail in Florida.

Trump has said something at a press conference, albeit incoherent, when asked about his voting in Florida by mail about the required certifications.  Whether he was saying the certification requirements were too onerous, or that they were to easy to fake, I just couldn't tell.

But, let's talk about these certification safe-guards.  First, mail-in ballots are bar-coded and tracked.  Election officials can tell if someone has tried to submit a mail-in ballot and vote in person in the same election. They can tell if someone has chosen not to submit the mail-in ballot.  They can tell the voter if their mail-in ballot was accepted or rejected, and if rejected, why.

Ballots have signature, notary and witness requirements to protect against fraudulent voting.

Now, there is a case in California challenging the rejection of about 4,500 mail-in ballots because election officials found the signature on the ballot did not match the signature for the voter on file.

It's hard to understand why Republicans cite this lawsuit in support of their argument against mail-in ballots.  It's not proof of fraud.  It's proof of the system flagging potential fraud.  You can't have your cake and eat it too.

Of course, Trump did made a vague allegation of thousands of mail-in ballots being collected, and dumped.  Perhaps this is what he was referring to.  But what happened in California was no where near as nefarious as he would like you to believe.  The actions of the elections officials was all done out in the open, and subject to legal challenge, which is exactly what is happening right now.

Among the arguments in this case, which is being pursued by the ACLU, is that the ballots were wrongly rejected because the election officials weren't handwriting experts.  Keep in mind, some states require three election officials to examine the signature on the ballots.  At any rate, the California case shows the need to provide more funding to hone and strengthen security measures.

Speaker of the House Nancy Pelosi and the Democrats in the House tried to provide that funding.  Republicans complained that it was through an emergency bill to address issues raise by the COVID-19 pandemic, such as the shortage of surgical masks and other personal protective equipment.  They cried that it had no business being there.  But the whole purpose of this bill was to address the issues raised by the pandemic.  How we will vote, and keeping the process safe for voters, has become a vital issue because of how contagious SARS-CoV2 is.  Republicans didn't seem to mind when Mitch McConnel put some extra protection in the bill for the sunscreen industry, which just so happens to be located in his state.  Arguments concerning unnecessary pork are just hypocritical.

Republicans, and the White House in particular, like to point to a database allegedly showing cases of election fraud collated by the Heritge Foundation in support of their arguments against mail-in ballots.

The Heritage Foundation.  This is a conservative think tank.  It exists solely for the purpose of promoting and supporting Republican policies.  This is not an unbiased, disinterested source.

When you look at the cases cited in its database, this becomes clear.  There's no methodology behind the cases they've collected.  When there are convictions, there is no attempt to put those cases in context to determine if there was really voter fraud.  Plus, the database addresses alleged fraud in general, not solely voting by mail fraud.

This database was clearly made to give low-information voters something to point to, without the need to engage in critical thinking.

Even then,its so-called evidence dates back to the 1940s.  With respect to the billions of votes case since the 1940s, the Heritage Foundation has found evidence of fraud in a fraction or a fraction of a percent.

Keep in mind, the Heritage Foundation created this database in response to President Trump's claim that three million fraudulent votes were cast in 2016, which is the only reason he lost the popular vote to Hillary Clinton.  Remember, he put a Commission together to try to prove rampant fraud, even though, by virtue of the electoral college, he won the presidency.  That Commission found nothing and was quietly disbanded.  Likewise, even by stretching the definition of fraud, the Heritage Foundation found no where near the level of fraud that President Trump alleged.

A closer look of the Heritage Foundation's database is illuminating.  The cases listed include cases from the 1980s and 1990s.  So, its proof of supposed rampant fraud needs to reach back thirty, forty years for evidence.  In fact the database includes cases from 1972 (Nixon-McGovern) and 1948 (Truman-Dewey).

The headline of the Heritage Foundation's database is that they found a little over 1,100 convictions for voter fraud.  That's it.  In over seventy years of elections, they could only find 1,100 convictions for voter fraud.  And of that number, less than eighty -- 80 -- involve mail-in ballot fraud.

But this point needs to be emphasized.  These cases represent people who were caught.  The laws worked.  People who tried to vote for others, who intimidated voters, who tried to vote for a dead relative, were convicted and either served time in jail, paid a fine, or lost their job.

But more importantly, these were cases that could have been prevented with the types of security measures discussed above.  Bar-coding could help make sure a person isn't out there collecting a dozen ballots and turning them in all at once.  Notary publics are required to ensure that the person signing a document is the person they say they are.  Notaries are required to keep logs, note the date, note what kind of document it is, and note what kind of identification was used.  Notaries' ethical rules require them to refuse to notarize a document if there are signs of duress, coercion, or incapacity.  It's really hard for a dead person to sign a document in front of a notary public.

Can a notary be part of a scheme to commit fraud?  Well, of course.  But so can an election official who is present at the polls.  Any notary or election official who does take part in such a scheme risks losing their job, and being convicted of a crime.  In a few cases cited by the Heritage Foundation, that is exactly what happened.  Election officials were caught, lost their jobs and were convicted.

Most of the opportunity to engage in such schemes, however, is reduced with redundancy.  It's hard for an election official to engage in a fraudulent scheme when there are others looking over his or her shoulder.  It's hard for a notary to approve of a fraudulent signature when state law requires a notary public and a witness or two to verify the signature.

This emphasizes the point that it is vital to ensure that states put these types of procedures in place, and that they have the money to invest in the people needed to do the security checks and the technology that makes the security checks possible.

Most disturbingly, however, is this President's penchant for exaggeration.  He wants us to believe that fraud is going on with respect to thousands and thousands, if not millions, of votes.  Yet even an organization friendly to his cause could find no such evidence of numbers that large.

Some cases of voter fraud exist.  But of the billions of votes cast since 1948, the Heritage Foundation could only find conviction of about 1,100, a tiny fraction of a fraction of a percent.  And of that number, less then eighty involved mail-in ballot fraud.  And even those cases were easily caught with proper security measures.  Voting by mail is not the pyrrhia that Republicans and President Trump would like you to believe.

By:  William J. Kovatch, Jr.

You can find a video of this essay on YouTube:  https://youtu.be/tLqeal6xvkA

References

The Heritage Foundation’s database of supposed voting fraud cases.


A response to the Heritage Foundation’s database compiled by the Brennen Center.

Further criticism of the so-called proof of voter fraud, and Trump’s commission organized to find fraud in the 2016 election.

Trump Abuses Press Conference, Uses It as a Campaign Rally

It was a real spectacle.  At President Trump's now daily press conferences on the COVID-19 pandemic, he began by playing a video for all who were present; a video that looked an awful lot like a campaign commercial.  Two networks, CNN and MSNBC, cut away from the press conference at that point, realizing that Trump was not only playing them, but had crossed a serious ethical line in using government resources to make a personal political advertisement.

But that's not all.  Insisting that his Administration had done an excellent job managing the COVID-19 crisis, he refused to let reporters just finish their questions.  Questions with even a hint of criticism were met with ad hominem attacks and attempts to shout down the inquiring reporter.  One reporter who deserves accolades for not giving into the President's intimidation tactics, and continuing to press him to answer for his complete inaction and misleading public statements from February through mid-March, was Paula Reid of CBS News.

As if that were not enough, when it came time to talk about when we will know that it is time re-open the country, Trump made the astonishing assertion that he has final authority, even over the governors.  So, when Trump, using only his instinct, decides that it's safe to restart the economy, he can just countermand state officials, like Governor Newsom and Governor Cuomo, and render their stay-at-home orders invalid.  Please.  Read the Tenth Amendment again.  Our Constitution doesn't work that way.

There was so much wrong with the President's press conference. Let's just go back and highlight some of the issues.

First, the President made it very clear that he was reacting to an article from the New York Times that was published on Saturday, April 11, 2020, entitled, "He Could Have Seen What Was Coming: Behind Trump's Failure on the Virus."  Through the article, a group of New York Times reporters document how Trump had been warned of the potentially devastating spread of SARS-CoV2 (colloquially called "the coronavirus," the  virus that causes COVID-19) could be, but downplayed the danger to the public for several weeks before taking aggressive action.

Trump, of course, has a very fragile ego, and has never been able to take criticism.  This has been a real obstacle to effective government action.  With regard to his response to COVID-19, Trump has consistently rated his response as a 10 out of 10, always referring to his decision to suspend the entry of foreigners who had been to China in the fourteen days prior to attempting to enter the United States.  He refers to his executive order as his China travel ban.

The problem is that he relied on his so-called travel ban for weeks as his only action.  As many have argued, this was just a measure to buy time.  The virus was so contagious, an outbreak in the United States was unavoidable.  Trump should have used the time he bought with his immigration powers to push for the readiness of the country.  Such actions would have included using his authority pursuant to the Defense Production Act to order American businesses to prioritize medical supplies and equipment necessary to fight the virus, such as ventilators, surgical masks and hand sanitizer.  He could have used the bully pulpit to warn the American people to ready themselves for the upcoming outbreak, and rallied against hoarding and price gouging.  Instead, he continued to brag about his China travel ban.

To punish those evil reporters for doubting his unique wisdom, Trump made all present at the White House press conference watch a video which started with a clip from Fox News, criticizing other media outlets for downplaying the seriousness of the virus.  The irony of this was completely lost on the President.  Indeed, many have considered whether Fox News could be sued because it echoed the President's message that the coronavirus was not going to be a big deal, that the flu was deadlier, and that the media hype was all just a hoax to derail his presidency.

Trump then appeared to take perverse pleasure when the video turned to a recording by New York Times reporter, Maggie Haberman, who contributed to the April 11th article critical of Trump, saying that he was widely criticized for his China travel ban.

The quote came from a New York Times podcast dated March 25, 2020.  It was just a small snippet of the half hour show.  The point that Haberman made was that it took Trump so long to take any action after his China travel ban.  Even after he took action and declared a national emergency, he started to listen to his economic advisors, who wanted him to open the economy back up by Easter.  Which meant that until Dr. Fauci and the medical experts stepped in, the President almost undid everything that the health officials was advising him to do to keep the virus in check.  After the press conference, Haberman tweeted a photo of the transcript of the podcast, in which she compared Trump's China travel ban to President Bush's "Mission Accomplished" moment.

To those paying close attention, the video that Trump showed reporters screams Haberman's point.  The video displays a timeline of the President's action.  Conspicuously absent from that timeline was any action by the White House between January 31, when he announced his China travel ban, and March, when Trump announced a similar ban on foreigners coming from most European countries.  The fact remains, while the first case appeared in the United States on January 20, COVID-19 surged in South Korea, Iran and Italy.  Health care experts took to the air waves to admonish the United States to prepare for the eventual onslaught of cases. Trump did nothing.  Worse, he called the hype over the virus nothing but a Democratic hoax. 

In February, Trump downplayed the danger that the virus posed to the public health, and falsely reassured the American people that it would not be a problem here.  On February 14, Trump claimed that there were a small number of cases in the United States, which he estimated to be around twelve, and stated that many of them were getting better.  On February 19, he claimed that when April came around, the warmer weather would have a negative effect on the virus.  On February 24, he bragged that the virus was "very much under control in the USA," and that the "Stock Market [is] starting to look good to me."  On February 26, Trump claimed that there were only fifteen people with the virus in the United States, and that within a couple of days, that number would be down to zero.  On February 28, Trump said, "One day, it's like a miracle, it will disappear."

On February 29, the first American died of COVID19.

But even that first American death did not temper the President's rhetoric.  On March 4, Sean Hannity interviewed Donald Trump.  Trump made the audacious claim that based on nothing more than his hunch he believed that the death rate was not as high as that reported by the World Health Organization.  He further claimed that people were having minor symptoms and even going to work with these symptoms, and not visiting a doctor.  Never mind that even when exhibiting no symptoms, a person infected with the virus could spread it through close contact with others.  Thus, going to work while showing symptoms would be ill-advised.

The record of the President's failure is stark and undeniable.

Well, unless you are Donald Trump.  After all, this is the man who boldly altered a National Weather Service map with a Sharpie to defend his claim that Alabama was in Hurricane Dorian's path, when it wasn't.  We shouldn't be surprised at his latest attempt of gas lighting.  Of course, while such bold-face lies and deceptions have become commonplace for he the White House, it should continue to outrage Americans who expect more from our Government.

The more we expect should include ethical behavior by our President and his staff.  The very first question after the presentation of this video came from CNN's Jim Acosta. who asked whether government staff worked on the video.  A second reporter asked if White House staff had produced the video.

Oblivious to the ethical ramifications of those questions, Trump proudly declared that White House staff had indeed put the video together.  Public resources were used for the personal political aims of the President.  Again.

And AGAIN, Trump misled the American people not only over his inaction, but over the responses of his opponents.  For example, Trump has repeatedly referred to House Speaker Nancy Pelosi protesting his China travel ban in Chinatown, calling it xenophobic.  But recall, around the same time that Trump issued his China travel ban, he also expanded his Muslim travel ban to six Muslim-majority African countries.  It was this Muslim travel ban that Pelosi and other Democrats called xenophobic.  And while Pelosi did appear in San Francisco's Chinatown in an attempt to promote more people to support Chinese businesses, that was a reaction to Trump's insistence to calling SARS-Cov2 "the China virus."  In doing so, Trump, although unwittingly, was promoting racism and bigotry against Asian-Americans.  Pelosi was attempting to countermand such bigotry.

Of course such details have escaped Trump's bombasticity, as intentionally conflating criticism over his Mulsim travel ban with reaction to his China travel ban serves his purpose of attempting to elevate his leadership actions in the face of such stark inaction.

As if his efforts to repaint history were not enough, he further had the audacity to claim that he has "total authority" over when the nation can return to business as normal after its struggle against COVID-19.  It took until March 13 for Trump to declare a national emergency, and then only in response to the WHO proclaiming COVID-19 a pandemic.  By then, multiple states had already started closing schools and issuing emergency orders.  Indeed, lacking effective guidance from the federal Government, the Governors have had to take the lead in marshalling the medical resources necessary to fight this disease, and ordering residents to avid social contact so as to slow the stress being placed on medical professionals. 

While Trump may want to believe he has such authority, the Constitution provides a completely different answer.  As Governor Cuomo noted in a television interview on the following day, it was the states that created the federal Government, not the other way around.  Moreover, the federal Government's power is limited by the terms of the Constitution.  In this regard, the Tenth Amendment provides that any power not specifically given to the federal Government through the Constitution is reserved to the state.  One such power is the police power, which is the power to prescribe rules for the health, safety and welfare and welfare of the state's residents.  Should Trump attempt to countermand state stay-at-home orders before the Governors are ready to lift them, he will find a legal battle on his hands, one that has been settled for over a century and a half.

On display at yesterday's press conference was a frustrated narcissist, throwing a hissy fit because he is being called out on his ineffectual governance.  It is a point that cannot go unanswered.  He must be prevented from using his press conferences as a replacement for his political campaign rallies during this time when large gatherings of people are unwise.  More networks need to cut away from his press conferences when they turn into his personal political showcase, and more reporters need to continue to press the President to answer for his inaction which has led to strained medical resources in the fight against COVID-19.

By: William J. Kovatch, Jr.

References

Blake, Aaron, "A timeline of Trump playing down the coronavirus threat," The Washington Post (March 17, 2020).

Borio, Luciana and Gottlieb, Scott, "Act Now to Prevent an American Epidemic," The Wall Street Journal (January 28, 2020).

Bryson Taylor, Derrick, "A Timeline of the Coronavirus," The New York Times (March 19, 2020).

Chait, Jonathan, "Trump: 'When Somebody's President of the United States, the Authority is Total,'" The Intelligencer (April 13, 2020).

CNN, "Gov, Andrew Cuomo: We have a Constitution, not a king," YouTube video (April 14, 2020).

Dilanian, Ken, Lee,Carol E., De Luce, Dan, Strickler Laura and Khimm, Suzy, "Mismanagement, missed opportunities: How the White House bungled the coronavirus response," NBC News (March 14, 2020).

Egan, Lauren, "Trump calls coronavirus Democrats' 'New Hoax,'" NBC News (February 28, 2020).

Factbase, "Interview: Sean Hannity Interviews Donald Trump Via Telephone -- March 4, 2020."

Farley, Robert, "The Facts on Trump's Travel Restrictions," FactCheck.org (March 6, 2020).

Hale Spencer, Saranac, "Video Misconstrues Pelosi Tweet on 'Un-American Travel Ban,'" FactCheck.org (April 3, 2020).

Knox, Liam, "Civil rights groups condemn Trump's travel-ban expansion to six African countries," NBC News (February 27, 2020).

Lipton, Eric, Sanger, David E., Haberman, Maggie, Shear, Michael D., Mazzetti, Mark and Barnes, Julian E., "He Could Have Seen What Was Coming: Behind Trump's Failure on the Virus," The New York Times (April 11, 2020).

Mackey, Robert, "Trump PR Stunt Falls Flat, as White House Video Exposes His Failure to Prepare for Pandemic," The Intercept (April 14, 2020).

NBC Bay Area Staff, "Nancy Pelosi Visits San Francisco's Chinatown Amid Coronavirus Concerns," NBC Bay Area (February 24, 2020).

The New York Times, "Raring to Go by Easter," Podcast including a discussion by reporter Maggie Habberman (March 25, 2020).

The New York Times, "Trump Insists He Has 'Total Authority" to Supersede Governors," (April 13, 2020).

World Health Organization, "Naming the coronavirus disease (COVID-19) and the virus that causes it."

Be Careful, Dr. Fauci. You Might Be the Next Trump Advisor to Be Fired.

At a time when the United States needs to rely on its medical experts more than ever, President Donald Trump may be on the verge of firing Dr. Anthony S. Fauci, the director of the National Institute of Allergy and Infectious Diseases.  Dr. Fauci has essentially become the nation's resource for accurate information on the coronavirus, and efforts needed to combat its spread.  He has been prominently displayed at White House press conferences updating the country on the Government's response to the pandemic.  He has appeared on news shows to be interviewed about the virus and how best to stop its spread.  Many in the United States, desperate for leadership and information has come to rely on Dr. Fauci's updates and commentary.

But that is exactly why he may in danger of losing his position.

There are two things Donald Trump craves over everything else.  Trump needs to be in the limelight, and he needs to feel as though he is the expert on whatever topic he addresses.  Advisors whom Trump perceives as stealing the spotlight from him quickly find that this is a ticket first to isolation within the White House, and then removal.  Just ask the likes of Steve Bannon, Rex Tillerson, Jeff Sessions, John Kelly . . . .  Indeed, it has been postulated that the reason Stephen Miller has survived as long as he has because he is adept at working in the shadows, and ensuring that Trump gets the credit for all of the Administration's immigration initiatives.

Concerning Trump's need to be the smartest person in the room, he has ignored advice of career civil servants, made bold statements on issues, particular scientific issues, of which he obviously knows very little, and fired, or threatened to fire, aides who publicly contradict him.  During his presidency, we have seen Trump dismiss advice from the national intelligence community, claiming that nobody knows more about the terrorist state, ISIS, than he does.  We have seen him boldly profess that California would have less wild fires if only they raked the forests more often.  We have seen Trump's Commerce Secretary threaten to fire officials from the National Oceanic and Atmospheric Administration who dared contradict the President when he erroneously warned Alabamans that they were in Hurricane Dorian's path.

Now we come to the world's coronavirus crisis.  This is a virus that has shown to be highly contagious.  On its own, the virus would cause new cases of COVID-19 at an exponential rate.  An infected person is contagious for days before even showing symptoms.  The disease has been proven to kill patients at a far greater rate than the flu.  Thus, the CDC has recommended that the U.S. population continue to practice social distancing not just for weeks, but for a few months.  Otherwise, the rate of new infections will outpace the availability of medical resources to treat the serious cases.  Even those with mild symptoms can spread the disease to vulnerable members of the community.

Meanwhile, Trump, who resisted taking action beyond flight restrictions early in the crisis, finally relented to declaring a national emergency and recommending that people avoid widespread contact with each other just two weeks ago.  But, the fact that widespread social distancing will cause an economic slowdown has become increasingly harder for Trump to ignore.  The stock market, which Trump often uses to taut what he believes to be the success of his presidency, has tanked so badly that whatever gains made during Trump's Administration have been erased.  His favorite television network, Fox News, has opined that the cure should not be worse than the disease.  Trump slavishly agreed, repeating the thought in an all-caps tweet.  He has publicly proclaimed that he wants to pack the pews in churches across the nation on Easter Sunday.  He has repeatedly told reporters that he hopes to restart the nation's economy by Easter.

Dr. Fauci, however, has not been shy in correcting the numerous misstatements Trump has made concerning the coronavirus.  He noted that the drug Trump touted had not been proven scientifically to be effective against COIVD-19.  When Trump infamously claimed that cases in the United States were going down, not up, Dr. Fauci has corrected him saying the he expects things to get worse before they get better.  Dr. Fauci has even appeared on television saying that he can't just jump in front of Trump's microphone to correct the President in the middle of press conference.

As Trump  publicly states his desire to ease restrictions on large gatherings and business closures, advisors leaked to the press that he is losing patience with the very expert whom Americans have come to rely upon to calm their fears.  If Trump remains true to his pattern, that could very well mean that Dr. Fauci's position is on jeopardy.  Just when the nation craves clear leadership and a unified strategy to combat a public health crisis, the lack of leadership within the White House has never been more apparent.

By:  William J. Kovatch, Jr.

Angry Over Pelosi’s Political Stunt? Please, Get Over Yourself

Under Sharia law, mutilating the Koran or any piece of paper with a verse from the Koran is blasphemy. This is a very serious charge. In Pakistan, blasphemy is punishable by death.

At the State of the Union address this week, Speaker of the House Nancy Pelosi engaged in a political stunt that has Trump supporters up in arms. Prominently seated behind the President, once Trump finished his speech, Pelosi, in a manner visible to television audiences, ripped a written copy of the State of the Union Address Trump had handed her before he started speaking, into pieces.

Let me be clear, I was annoyed by Pelosi’s stunt and the lack of civility it showed. Of course, I was equally annoyed at the lack of civility Trump showed when he refused to take Pelosi’s outstretched hand when he arrived at the podium of the House chamber.  Indeed, with the behavior of some Democrats during the speech, and the awarding of Rush Limbaugh the Presidential Medal of Freedom, there were enough embarrassing political stunts to go around.

But Trump supporters are going overboard in their criticism of Pelosi. By ripping her copy of the speech, Trump supporters have claimed that she ripped apart the Tuskegee Airman who was a guest of the President, mourning families, a family reunited with their service member’s father, and others who were mentioned in the speech.  Indeed, the outrage expressed by Trump supporters is tantamount to the way Muslims treat someone who has ripped the Koran.  Get over yourselves. A copy of the State of the Union Address is not a religious text.  It is not some revered artifact that deserves praise in and of itself.  It’s a set of papers with words written on them that were read out loud by the President. Let’s not start treating the President as some kind of infalible demigod whose every word must be heeded and venerated.  That’s not how democracy works.  Indeed, our democracy is protected by our Constitution, which includes a First Amendment that protects freedom of speech, particularly political speech. And that is what Pelosi engaged in, even if it were crude and crass.

Likewise, Trump supporters are now citing 18 U.S.C. § 2071, which criminalizes the mutilation or destruction of an official record of the United States.  The problem with this argument is that the copy of the State of the Union Address handed to Pelosi was not an official public record. Pursuant to the Presidential Records Act of 1978, all documents from the White House are filed with the National Archives. The document filed with the National Archives is the official record.  Thus, the copy of the speech Trump handed to Pelosi, while it is given to her out of tradition, is really nothing more than a courtesy copy. The law, 18 U.S.C. § 2071, is meant to protect records filed with U.S. courts and the National Archives from destruction, not every copy of a presidential speech printed out, even if signed by the President.

Quite frankly, the belly-aching over Pelosi’s political stunt is nothing more than political showmanship itself.  It represents some of what is wrong with U.S. politics today.  U.S. politics has become more about the dog and pony show, instead about the substance of policy. Given the fact that Trump routinely insults, bullies and ridicules his political opponents, it’s not like either he or his supporters have room to complain.

Instead of trying to score mere symbolic points, politicians ought to be deliberating substantively what policy is best for the American people.  Wasting this much time and effort over silly political stunts does nobody any good and merely perpetuates the deep division we already have among Americans.

By:  William J. Kovatch, Jr.

Trump Will Likely be Acquitted Because the way the United States Chooses the Senate Goes against Democratic Principles.

No one seriously disputes the facts.  President Trump asked Ukrainian President Zelensky to announce that he had started two investigations that would help Trump politically.  When he did so, he communicated to Ukraine that he would withhold almost $400 million in military aid approved by Congress until Ukraine complied.  The aid was only released to Ukraine once the story broke in the news that a whistleblower had filed a complaint with the Inspector General of the Intelligence Community, detailing this scheme by the President.  This has been confirmed by the Ambassador to Europe under oath.  It has been confirmed by Trump's former National Security Adviser in a book.

No one with any degree of intelligence can dispute that using the Office of the President to extract a personal favor from a foreign government is a crime.  Furthermore, no one who is being honest can dispute that seeking foreign intervention in a U.S. presidential election is the exact type of behavior that the Founding Fathers feared when it crafted the clauses of the Constitution that address the impeachment and removal of the President from office.

Yet, we stand on the precipice of the U.S. Senate voting to acquit President Trump after holding a trial where no witnesses were called, and no evidence presented.  Why?  Because the Senate is controlled by the Republican Party, and President Trump is a Republican.  The Republicans of the Senate are banding together to protect a criminal from being kicked out of office, solely to ensure that they protect their party's power.

And why does the Republican Party hold so much power in the U.S. Government?  The fact is more people consider themselves Democrats than Republicans in the United States.  Indeed, more people consider themselves independent of any political party than Republicans or Democrats.  But there are aspects of the U.S. Government that are not truly democratic in nature.  That is, there are features of the U.S. Government that are meant to thwart the will of the majority.  The Republicans have become experts at manipulating those features.

First, let's consider the House of Representatives.  Prior to 2018, the Republicans had held the House for eight straight years.  The reason was not because the Republicans were the larger political party.  As stated above, it was not.  The reason is due to how congressional districts were made up.  Republicans worked hard to gain control of as many state legislatures as they could.  Then, once the United States held a census, it became time for the states to redraw their districts.  Working like putting together a giant jigsaw puzzle, Republican state lawmakers found a way to draw those districts so that Republicans had the advantage.  This is called gerrymandering. 

Next, the Republicans took advantage of the way that the U.S. President is chosen.  Pursuant to the Constitution, the President is not directly elected by the people.  Instead, the people choose electors to meet in a body called the electoral college to choose the President.  Originally, the electoral college was meant to be a deliberative body, that would consider and debate over a number of candidates before choosing who they thought would best run the country.  However, the electoral college devolved into a proxy of the state's popular vote.  Electors were not chosen individually.  Rather, the political parties nominated their presidential candidates, and in most states whichever candidate won the state's popular vote won a full slate of that state's electors.

The problem lay in the fact that the electors were not distributed in direct proportion to the number of citizens in the several states.  Rather, each state received the same number of electors as Representatives in the House plus two representing the number of Senators each state has.  The additional two electors may create a small deviation from having the electoral college be truly proportional to the distribution of the population in the United States.  But in practice, states with smaller populations had an advantage.  Their voters had greater weight.  Where you have a number of these states voting for the same presidential candidate, they can beat out the states with larger populations, meaning a candidate who loses the popular vote can win the presidency based on the electoral college.  Prior to the 21st Century, this had happened in U.S. history.  But it was a rare occurrence.  Now, it has happened twice in the last five elections.  Moreover, there is a danger it will continue to happen in the near future with frequency.

Finally, there is the make-up of the Senate itself.  The Senate is the result of a compromise of the Founding Fathers.   States with smaller populations were afraid of loosing power to the large population states in the new government.  The solution was to create a bicameral legislature, one where the representatives were distributed based on population, and one where states were represented equally as states.  That second house of the legislature was the Senate.  Each state is guaranteed two Senators, no matter the state's population.

As stated, the reasoning was to represent the states as states.  Originally, state legislatures chose the Senators from their states.  It was only through the progressive movement of the 19th Century that the election of Senators by the people of the state became the law.

Nonetheless, this means that there is one body of Congress where states has power disproportionate to their population.  That is, states with fewer people living in it has the same power in the Senate as states with large populations.  To put it in tangible terms, a Senator from South Dakota represents about 429,000 voters, while a Senator from California represents 19 million voters.  that means that in the Senate, South Dakota voters possess about 45 times the voting power than California voters.  Thus, representation in the Senate works against democratic principles, such as the equality of all citizens.  In practice, South Dakotans are more equal than Californians.

As it turns out, voters who oppose Donald Trump tend to live in densely populated states such as California and New York.  While sparsely populated states tend to be populated by Trump supporters.  National polls show U.S. voters overwhelmingly favoring the Senate trial of President Trump to include witnesses.  National polls also show a majority of U.S. voters supporting the removal of the President.  But, due to the distribution of U.S. voters, the Senate is in control of a political party that will do anything to protect its leader.

So, it is very likely that the Senate trial will turn out to be a sham of justice, and a very guilty President will be acquitted and permitted not only to finish out his term, but run for re-election.  This is despite poll numbers showing the U.S. population supporting the opposite results.  President Trump will likely remain in office, but only because of the features of the U.S. Government that go against the principles of real democracy.

By:  William J. Kovatch, Jr.

A Lawyer's Annoyance at Congressional Hearings

I am a lawyer and a trained litigator.  I have presented cases before Immigration Courts and the Virginia Circuit Courts.  And although I have watched congressional hearings numerous times before, they still annoy me.  The main reason is that these hearings are not designed so much to try to get to the truth, so much as to put on a dog and pony show in order to get as many sound bites as possible to make it to the news.  These impeachment inquiries are no exception.

Let's start with who presides over the hearings.  The Committee Chair is a member of the majority party in the House.  In this case, the Chair of the House Intelligence Committee is Adam Schiff.  But Schiff plays two roles.  Not only does he preside over the hearings, but he has a political agenda.  In this case, I personally happen to agree with that agenda,which is the impeachment and eventual removal of Donald Trump as President of the United States for his abuse of power.  Nonetheless, I do think it is very important that the person conducting the hearings present an image of disinterested fairness.  I cringe when Schiff opens up the hearings with his recitation of what he thinks the testimony will show.  I wish somehow that the hearings would be presided over by some kind of neutral parliamentarian, who enforces the rules, but does not express an opinion.  That would take away much of the argument that the Republicans are making, that Schiff is being unfair to them, when all he is doing is enforcing the rules.  It would also free Schiff to pursue his political agenda, without making it appear like a one-sided affair.

Moving on the opening statements of the Ranking Member, Devin Nunes, I've been finding it really hard not to throw something at the TV when he speaks.  Yes, I know that the Republicans' strategy is to distract everyone from the facts of the case.  When you get down to it, the memorandum of the July 25th phone call is just plain damning.  Right there, the President is asking for a favor right after the President of Ukraine refers to his country's desire for defensive assistance.  But all of this stuff on how we aren't going to hear from the whistleblower, or the arguments over Joe Biden and his son Hunter, they are just irrelevant to the issue at hand.  I keep thinking that if I ever tried to pull that kind of thing in a court of law, I'd have a really annoyed judge in front of me.  "Counsel, stick to the facts of this case," I'd likely be lectured.

And if that weren't enough, in the first few hearings, we saw Republicans interrupt with their so-called "point of order."  A point of order is supposed to be a complaint over a procedural issue.  But the Republicans are trying to use them again to distract from the witnesses scheduled for that day, and raise their inane conspiracy theories.  Point of order, we are not going to hear from the whistleblower and whether this personal may have a political agenda.  Point of order, you won't let us call Hunter Biden as a witness.  None of this has anything to do with the procedure, which was agreed to prior to the hearings.  They are all about trying to put the irrelevant conspiracy theories before the public.  And when Chairman Schiff recognizes this and cuts them off, they complain that he is not being fair.  Dog and pony show.

Now, I know these hearings are not run according to the Federal Rules of Evidence.  But for crying out loud, these questions are just the absolute worst.  Most of the time, these are just leading questions.  That is, the representative, or counsel, simply makes a statement and then asks the witness if he or she agrees with that statement.  A times, when the witness tries to answer in his or her own words, the questioner tries to interrupt the answer, and emphasize the questioner's point.  Not only that, there have been numerous times that the questioner has tried to characterize the witness' statement with hyperbole or exaggeration, using very loaded or judgmental words.  I tell you, if I did that in court, I would get a very strong rebuke from the judge.

More annoying than that are the times that the representative doesn't even ask a question.  Instead, he just takes his full time to make a political speech to please the President or his constituency.  Jim Jordan, who needs to be wearing a suit jacket during these hearings for goodness sake, is the worst at this.  I honestly don't understand why the Republicans put him in the Intelligence Committee specifically for these hearings, because his speeches are just not effective.

One tactic that came out more clearly during Lt. Colonel Vidman's testimony was this attempt by Republicans to unmask the whistleblower.  We all know, or should know, that this is illegal.  Like it or not, we need to protect the identity of a whistleblower for the very reasons that are unfolding here, before our eyes.  We want people to be able to come forward with information of potential wrong-doing, without fear of reprisals.  It's bad enough that the Army had announced its readiness to protect Lt. Colonel Vidman if necessary, because of all of the threats he has received.  Imagine if the name of the whistleblower had gotten out.  With all of those people who blindly support Trump, the whistleblower's life would most assuredly be in jeopardy.  And yet, we saw Devin Nunes time and again ask Vindman to identify with whom he spoke, with whom he met, and then criticize Vindman when he refuses to name some people either based on counsel's advice or Chairman Schiff's instructions.  Nunes even tried to argue that if Vindman was not asserting a Fifth Amendment right (which is the right against self-incrimination), he couldn't refuse to answer the question.

Look, while I want to be careful comparing this to a criminal action, many times criminal investigations or police action is spurred by unidentified informants.  If the investigations or police action independently uncover criminal activity, the identity and motivations of the informant are irrelevant.  What is relevant is the information that the investigation or police activity uncovered.  The same concept applies here.  Independent sources, such as the phone call memo and the witnesses who have testified so far, have corroborated what was reported in the whistleblower's complaint.  The only reason to pursue the identity of the whistleblower any further, is to intimidate that person and others who may come forward to report official wrongdoing.

Let's now talk about this theme we are hearing from Republicans that the witnesses cannot identify a specific crime, or have not said words like bribery, extortion or quid pro quo.  That is not the witnesses' role.  The witnesses are supposed to be there to present factual testimony.  Most of the witnesses are not lawyers.  It is not their role to conclude that the behavior they witnessed or about which they testified amounts to any specific crime.  That's a legal conclusion.  It's the job of the House to determine if the facts amount to an impeachable event, regardless of how one may label it.

As I watch Devin Nunes deliver his afternoon opening statement, I have to agree with his statement that these hearings are "not serious" or "sober," but not for the reasons he has stated.  Yes, it is a dog and pony show.  But so far, the most egregious abuses have been from the Republicans, who are doing all they can to prevent the disclosure of facts, and hijack the hearings for their political agenda of pleasing the President and their constituents.

By:  William J. Kovatch, Jr.

Open Enrollment for Health Insurance through the Marketplace is Here, and May Bring a Pleasant Surprise

Open enrollment is among us, if you need to buy your health insurance from your state’s marketplace pursuant to the Affordable Care Act, also known as the ACA or Obamacare. Today, I went to healthcare.gov to choose which plan I wanted for 2020. As some of you may know, I am currently fighting cancer, and incur a lot of health care expenses. I have one of the top of the line gold plans for 2019, and have been very happy with it. I was thrilled to see that not only is the same plan available for 2020, but the premiums went down by about $100 a month for me. I can’t promise the same results for you, but by all means, if you need health insurance check out what is available through your state’s marketplace on healthcare.gov.  You have until December 15, 2019 to enroll.

My experience buying health insurance through the marketplace has recently been a pleasant surprise, especially considering that one of the main policy goals of the Republican Party has been to repeal Obamacare. Well, technically, the GOP has called for the repeal and replacement of Obamacare. But if you recall the Spring and Summer of 2017, you may remember that when the GOP had both houses of Congress and the Presidency, there seemed to be wide-spread agreement on the repeal part, but not a single Republican could propose a replacement. This was a scary concept for someone like me, who worked as a solo practitioner at the time, and had a pre-existing condition. If the Republicans could repeal Obamacare, but would not replace it, where was that going to leave me?  Luckily, the rest of the country and I watched as Republican Senator John McCain strolled to the floor of the Senate, and famously turned his thumb down, going against his party and saving Obamacare from repeal.

Of course, that was not the end of my anxiety. One thing that is clear about President Trump is his obsession with trying to undo everything he can that President Obama accomplished. If his party could not deliver on the promise to repeal Obamacare, then Trump was going to do everything in his power to sabotage it from the inside.

He started by withholding subsidies to the insurance companies for participating in the market place. This created a great deal of panic and uncertainty. It resulted in higher premium prices and fewer choices for those who went through the marketplace. For myself, I noticed that there were only two insurance companies offering plans in my state.  When I purchased the plan I thought was the better choice, I suddenly found that many of the doctors I had gotten used to seeing did not accept this insurance. Not only was my choice limited, but getting the insurance company to approve of the care I needed, such as major surgery, suddenly became a challenge. I spent a lot of time learning about peer to peer reviews and asking my doctors to call the insurance company doctors to convince them why the treatment, such as cutting recurrent cancer out of my body, was necessary.

But this was not Trump’s only strategy. He also stopped enforcing the penalty for not complying with the mandate. That is, in order for Obamacare to work, low risk healthy Americans had to purchase health insurance in order to offset the additional costs to insurance companies for being compelled to offer plans to people like me, without considering my pre-existing condition and at the same premium. Without the penalty for not buying health insurance, which was enforced by the IRS, healthy people may choose to forgo buying health insurance, thus increasing the percentage of high risk customers, which in turn would increase premiums. And that is what I experienced. Not only was my choice of plans more limited, the plans that were available were more expensive and had a high deductible.

Trump tried to drive more people out of the marketplace, by approving more short-term insurance plans. These type of plans had less coverage than the plans available on the marketplace, and were far cheaper. A small number of these plans were available before Trump won the election. I needed to utilize this option for a few months in 2016 through the first month of 2017. The premiums were super cheap. But, that was based on the customer not needing to use the plan for major health problems. This was fine for me, until the beginning of 2017 when I started showing some serious symptoms. My cancer had been in remission for several years, and thus was not considered a pre-existing condition for the purposes of this plan. Nonetheless, the insurance company fought with me tooth and nail to cover the treatment I began to need in early 2017. Indeed, the insurance company refused to pay over $36,000 worth of treatment, until I finally reported the company to my state’s insurance commission. Amazingly, after months of denials and fighting, once the insurance commission got involved the insurance company changed its tune, and my expenses once again covered. Still, from my experience with this short-term plan, I will avoid them as much as humanly possible in the future.

But even with Trump’s efforts to sabotage Obamacare, something amazing happened. The health insurance market stabilized after one year.  When open enrollment came around in 2018, there were suddenly over twenty plans available to me through the marketplace. With the guidance from my healthcare providers, I was able to choose a plan that was widely accepted by the doctors I already patronized, and that offered a good amount of coverage at a reasonable price. Despite Trump’s efforts to destroy Obamacare, the system was working well for me.

That trend continued this year. Indeed, it has been reported that in many states, there are more plans available this year, and at lower premiums. For now, Trump’s efforts to destroy Obamacare without formally repealing it seems to be failing. Yes, there are lawsuits out there challenging the law as unconstitutional. There are lawsuits challenging the requirement to cover pre-existing conditions. Given my personal situation, these are developments I worry about and watch closely. But for now, Obamacare is working for me.

So I urge you, if you need health insurance, check out your state’s marketplace. Yes, you will need to input a lot of information, including information about your income. But you just might find yourself pleasantly surprised, as I was this year.

By: William J. Kovatch, Jr.