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Democrats keep losing voter intimidation suits – but that could be a good thing
November 7, 2016 / 11:17 PM / a year ago

Democrats keep losing voter intimidation suits – but that could be a good thing

(Reuters) - On Monday, the U.S. Supreme Court decided to not to get involved in a suit in which the Ohio Democratic Party accused the campaign of Republican presidential nominee Donald Trump of a scheme to scare minority voters away from casting ballots at polling places on Election Day, erasing the only victory for Democratic officials in a spate of last-minute voter intimidation lawsuits against the Trump campaign.

The Supreme Court’s decision ended four tumultuous days of litigation in the Ohio case, one of six filed late last month by Democratic officials in battleground states. On Friday, U.S. District Judge James Gwin of Cleveland issued a temporary restraining order against Trump’s campaign, Trump’s longtime friend Roger Stone and associates of both Stone and the campaign. Citing the Voting Rights Act and the Ku Klux Klan Act, the trial judge instructed them not to engage in an array of intimidation tactics, such as loitering outside of polling stations, verbally harassing voters or photographing voters’ cars.

Ohio state election law already includes voter protection measures, Judge Gwin acknowledged, but “where there is a legitimate possibility that particular laws may be imminently violated, ordering compliance with those laws is appropriate.”

Gwin’s order was in place for a mere two days. On Sunday, a three-judge panel at the 6th stayed Gwin’s temporary restraining order, without elaborating much on its rationale. The Supreme Court, as is customary, did not explain its decision Monday to leave intact the 6th Circuit stay, although in an accompanying statement, Justice Ruth Bader Ginsburg said she was “mindful that Ohio law proscribes voter intimidation.”

No sooner had the Supreme Court denied Democrats’ attempt to revive the Ohio injunction than U.S. District Judge Paul Diamond of Philadelphia refused to grant an injunction against alleged voter intimidation tactics by the Trump campaign in Pennsylvania. Judge Diamond faulted officials for waiting until the last minute to sue and for failing to conduct discovery to back their accusations. Basically, the judge said Democratic officials offered him no specific evidence the Trump campaign is conspiring to suppress minority voting.

Federal judges in Arizona and Nevada have also denied Democratic motions to enjoin the Trump campaign and its allies. Judges in North Carolina and Michigan, the other two states where Democratic officials alleged a voter intimidation conspiracy to violate the Voting Rights Act and the Ku Klux Klan Act, hadn’t ruled at all on the Democratic injunction motions as of Monday afternoon.

So was the anti-voter-intimidation campaign a big waste of time and money for state Democratic parties and their lawyers at Perkins Coie and Boies Schiller & Flexner? Yes, if Democrats were hoping that Donald Trump’s rhetoric about rigged voting and extremely intemperate comments from some of his supports would lead to quick court orders against him. The Trump campaign fought skillfully against the six simultaneous suits; the Jones Day brief asking the 6th Circuit to stay Judge Gwin’s injunction, for instance, might just make you believe again in the advantages of a big firm that can turn around a convincing filing in about 24 hours.

Here’s the thing, though. To back their allegations that Trump’s calls for poll watchers to monitor voting were really dog-whistle calls for conspirators to scare minority voters, the state Democrats had to put on evidence that there’s no need for extra poll watchers because elections are not tainted by fraud. The Ohio case, for instance, featured live testimony from election officials who, even as they talked about their concerns about Trump supporters, confirmed the soundness of the state’s election processes.

I think the rulings for Trump in these cases undermine any future argument he plans to make that the system is rigged. In four different federal courts, judges weighed the First Amendment rights of Trump supporters against racially charged accusations. They not only showed considerable regard for Trump’s freedom of speech but also implicitly concluded that elections are conducted responsibly.

It would certainly not be out of character for Trump later to complain that he was somehow not treated fairly, that although his supporters are not facing beefed-up restrictions on their ability to express their sentiments about the candidates, the system is rigged against him. But can you imagine – to use a frequent Trump trope – what he would say if courts enjoined his voters’ actions outside of polling stations and he proceeded to lose?

That could have been ugly, big league.

I sincerely hope no voter stays away from his or her polling place out of fear. As Justice Ginsburg pointed out Monday, there are already laws barring voter intimidation, and election officials should take great care to enforce those laws tomorrow.

Then maybe after this election, we can begin to think of ways to make campaigns more civil and respectful so no party ever again has to bring a lawsuit, or six, claiming one side is trying to scare a class of voters away from the ballot.

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