Jurisprudence

Bill Barr’s Strategy to Undermine Confidence in the 2020 Election

This attorney general thrives in chaos.

Barr stands in the Oval Office
Attorney General William Barr in Washington on May 28. Doug Mills/Pool/Getty Images

We are in the midst of a lethal pandemic. There are also unprecedented protests against police brutality and curfews in place. And the attorney general of the United States is using his time to actively undermine confidence in the integrity of the November elections by floating nonsense conspiracy theories about counterfeit absentee ballots. Republican attempts at voter suppression are nothing new. What’s new is the chaos element that Barr’s remarks inject into the 2020 election cycle. It’s an attempt to foment a climate in which Trumpian authoritarianism can take center stage over liberal democracy.

For decades, Republicans have used false claims of voter fraud to justify voter suppression efforts. For example, in the 1981 race for governor of New Jersey, the Republican National Committee and the state party executed a voter-caging scheme by mailing out letters targeting thousands of primarily Black and Latinx New Jersey voters using an outdated voter registration list. They then used the bounced-back mail to try to purge those voters from the rolls. That same year, Republicans deployed a group of off-duty police officers wearing armbands identifying themselves as members of the “National Ballot Security Task Force,” armed and carrying walkie-talkies, to patrol polling places in minority neighborhoods on Election Day. They posted signs reading: “WARNING THIS AREA IS BEING PATROLLED BY THE NATIONAL BALLOT SECURITY TASK FORCE.” These tactics resulted in a consent decree against the RNC’s “ballot security” programs that remained in place for the next 25 years, but Democrats lost that 1981 gubernatorial race by fewer than 2,000 votes.

Fast forward to October 2016, when candidate Donald Trump used the illusory specter of voter fraud to send out a call to the universe—at rallies full of white people—for poll watchers to go into cities in swing states to “watch” the polls for “cheating,” a barely coded mechanism for intimidating minority voters. And just in case the code wasn’t subtle enough, Trump told the crowd at an Ohio rally: “And when [I] say ‘watch,’ you know what I’m talking about, right?” Roger Stone, who was receptive to the president’s broad call for campaign help from Russia, was equally receptive to the president’s wish for a ballot security task force. Stone deployed his own group, called “Stop the Steal,” to send volunteer “vote protectors” into nine cities to engage in aggressive poll watching under the fig leaf of exit polling. Democrats filed a flurry of lawsuits, including one to enforce the consent decree that came out of the 1981 election in New Jersey. The suits briefly gained some traction in the courts and prompted Stone to walk back his voter intimidation efforts, but we know how the election turned out, and the courts rejected efforts to enforce the RNC consent decree against the Trump campaign. Then, in 2018, federal courts allowed the consent decree to expire, leaving voters vulnerable to more voter suppression schemes.

The traditional Republican voter suppression machine remains as revved up as ever, only now it is freed from any need for pretext because Trump likes to say the quiet bits out loud: If more Americans voted, he recently blurted, “you’d never have a Republican elected in this country again.” This is the classic vote suppression playbook: old wine, new bottle.

Trump also added his own pages to the traditional Republican playbook by doing something unusual during the 2016 campaign: He repeatedly talked about the 2016 election being “rigged” or “stolen,” hedging for an excuse should he lose the election. Said one astute observer of American politics: “I have never seen in my lifetime or in modern political history any presidential candidate trying to discredit the elections and the election process before votes have even taken place.”

He’s doing it again in advance of the 2020 election. For the past few months, Trump has made a string of increasingly vehement false claims about voting by mail. One of the most absurd was a May 20 tweet: “Michigan sends absentee ballot applications to 7.7 million people ahead of Primaries and the General Election. This was done illegally and without authorization by a rogue Secretary of State. I will ask to hold up funding to Michigan if they want to go down this Voter Fraud path!” The tweet followed another suggestion from Trump, which he tweeted and then deleted, that said Michigan had sent actual ballots, rather than applications, which isn’t true. But even the second tweet, like all of Trump’s tweets about voter fraud, is nonsense. Michigan sending out absentee ballot applications to registered voters is certainly not illegal, let alone any kind of fraud. Even states that now send most or all voters mail-in ballots don’t see any increase in fraud—including deep-red Utah, which has, unsurprisingly, managed to escape any ire from Trump.

But Trump isn’t trying to fact-check here; he’s just trying to make people suspicious of voting by mail. Just as in the 2016 election, the escalation in Trump’s efforts to sow doubts about the 2020 election have increased as polling shows him losing to Joe Biden in November. Republicans have been eager to keep the voter suppression machine revved up and running—including publicly committing $20 million to pushing their attacks on voting by mail (while the coronavirus pandemic continues, by the way) and defending their voter suppression tactics in court. While Republicans have generally been more reluctant to take up Trump’s efforts to sow chaos altogether, that’s begun to change behind the scenes. The network of conservative lawyers known as the Federalist Society—the architects of Trump’s highly successful effort to remodel the federal judiciary—has expanded its focus beyond pumping tens of millions of dollars into supporting the nominations of archconservative judges into “spouting unsubstantiated claims of voter fraud to support suppressive voting laws and cast doubt on the legitimacy of elections in which Democrats can win,” as Dahlia Lithwick and Rick Hasen pointed out last week.

Bill Barr, a devoted member of the Federalist Society, has now publicly taken up that cause from within the attorney general’s office at the United States Department of Justice. On Monday the New York Times published a profile of Barr by Mattathias Schwartz that included two interviews with the attorney general last month. Of the May 20 interview Schwartz writes:

When I asked who was going to referee the 2020 election, Barr replied, “The voters.” He said his department’s role would be limited, as the power belongs to the states and their electors. But when I brought up Trump’s tweet about Michigan, which he posted that same morning, Barr quickly seized the opportunity to float a new theory: that foreign governments might conspire to mail in fake ballots.

“I haven’t looked into that,” he cautioned, offering no evidence to substantiate that this was a real possibility. But he called it “one of the issues that I’m real worried about,” and added: “We’ve been talking about how, in terms of foreign influence, there are a number of foreign countries that could easily make counterfeit ballots, put names on them, send them in. And it’d be very hard to sort out what’s happening.

Experts in voting and elections, including Michael McDonald, a political science professor at the University of Florida, and Michael Li at the Brennan Center, quickly took to Twitter to explain why the scenario that Barr had cooked up—of a foreign entity mailing in ballots—was unbelievably difficult for anyone to pull off and would be easy for elections officials to spot. Grace Panetta of Business Insider provided a step-by-step breakdown of what she described as “possibly the least efficient and effective way for a bad actor to influence an election.”

Moreover, it’s not remotely clear that undermining voting by mail will help Republicans win this election. It might even hurt them. So why on earth would Bill Barr pop off to a New York Times reporter about an implausible absentee voter fraud scheme and claim it’s a grave new threat to U.S. elections?

The answer is simple: chaos. The chaos is the point. The same chaos justifies using police to clear peaceful protesters from Lafayette Park so a president who does not seriously profess any religious faith can have a photo-op in front of a church awkwardly holding a Bible. The same chaos keeps the cameras on Trump and Barr rather than on Joe Biden, who was out meeting with protesters on Sunday while the White House lights were off and Trump was hiding in the bunker. The chaos puts the head of the federal law enforcement apparatus in a position to exert enormous power over both the use of force and the flow of information.

On a Monday morning phone call, an unusually unhinged Trump said to the nation’s governors: “You have to dominate. If you don’t dominate, you’re wasting your time. They’re going to run over you. You’re going to look like a bunch of jerks.” After advising the governors that “you’ve got to arrest people, you have to track people, you have to put them in jail for 10 years,” Trump then made the deeply curious comment: “We will activate Bill Barr and activate him very strongly.” Chaos is an environment in which Barr, well known for his deep religious conservativism, affinity for a powerful executive branch, and contempt for progressivism and secularism, thrives.

In a 2019 speech to the Federalist Society, still posted on the Department of Justice web site, Barr described a group of Americans by stating: “Their holy mission is to use the coercive power of the State to remake man and society in their own image, according to an abstract ideal of perfection. Whatever means they use are therefore justified because, by definition, they are a virtuous people pursing a deific end. They are willing to use any means necessary to gain momentary advantage in achieving their end, regardless of collateral consequences and the systemic implications. They never ask whether the actions they take could be justified as a general rule of conduct, equally applicable to all sides.”

You could be forgiven for your surprise that Barr was talking about “so-called progressives,” whom he characterized as “waging a scorched earth, no-holds-barred war of ‘Resistance’ against this Administration.” After all, that was Barr you saw standing in Lafayette Park on Monday, inspecting armed Humvees before ordering police to use chemical weapons to disperse a peaceful protest in broad daylight.

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