Let’s all take a deep breath. We will need to do that a lot as Election Day nears and the results are counted.
As the election approaches, every day brings a flurry of news stories with bombastic headlines about the latest attack on the midterm election. Last week, headlines blared about President Donald Trump’s lawsuit in Alaska to block the certification of the results if his favored candidate, incumbent U.S. Senator Dan Sullivan, does not win his close race against the Democratic nominee, former U.S. Representative Mary Petola. (It was front-page news in The New York Times, with the headline “Trump’s Threat Could Thwart Vote in Alaska.” “Could” is doing a lot of work there; his lawsuit will have zero impact on the vote.) Trump’s Department of Justice also filed a lawsuit against California, seeking to segregate ballots cast by purported noncitizens. Concerns also arose about Immigration and Customs Enforcement (ICE) agents spotted at the polls in Florida (they were simply there to vote).
But these headlines lack proper context, leading to predictable concerns about Trump meddling in the elections. Rest assured: None of the lawsuits have merit, and courts will surely reject them.
That’s not to say, of course, that there is no cause for concern about the midterms given Trump’s past and his ongoing attempt to change normal election procedures despite having no authority to do so. We must remain vigilant when a president of the United States seeks to undermine a free and fair election. But we should not fall prey to Trump’s main goal: To sow confusion and discord among the electorate, which could cause many to stay home or doubt the results.
Filing a lawsuit does not mean the lawsuit has merit or is going anywhere. These lawsuits are best understood as press releases—fanciful press releases, to be sure—but nothing more than that.
As numerous legal scholars have explained in great detail, Trump’s lawsuits in Alaska and California will surely fail. The Alaska case suggests that voters are confused by two Dan Sullivans on the ballot, as someone with the same name as the incumbent U.S. Senator is also running. But the Alaska Supreme Court already rejected a similar claim earlier this year, before the ballots were printed. Trump’s lawsuit to stop the certification of the result is farcical. It is both too early, as there are no results yet, and too late given that he could have sued months ago. Moreover, the ballot clearly labels Senator Dan Sullivan as the incumbent. And there is no federal law that would give it the remedy it seeks, essentially to change the election result.
Derek Muller, the Notre Dame election law professor, said that “the legal argument is one of the worst ones I’ve ever seen.” The California case is just as weak, especially given that the database the Trump DOJ is citing regarding noncitizen voters is woefully inaccurate. The federal law it uses, which makes noncitizen voting illegal, does not direct states on how to administer their elections while voting is underway. In addition, it is not clear whether the DOJ has the legal authority to bring these cases.
But these facts have not stopped people from assuming that Trump can influence the election in some way. The Constitution is clear: The president has no authority over election administration. Though lawyers should not use the courts for political reasons, saying something in a legal filing does not mean it will come true. As Professor Rick Hasen, the UCLA law professor and election law expert, wrote, “To say these are press releases masquerading as lawsuits does not convey how weak these cases legally are.”
Every news headline about these cases should have the appropriate context. Perhaps the news media should adopt a universal convention. Every headline and push notification about a Trump lawsuit over the election should begin with the phrase, “Without Any Legal Authority…” or “Without Any Evidence…” Articles about the Alaska lawsuit should say, “Without Any Legal Authority, Trump Seeks to Meddle in Alaska Election.” The California news should begin, “Without Any Evidence of Noncitizen Voting, Trump Asks Court to Separate Ballots in California.” That added context could help avoid the confusion that these lawsuits have generated. Confusion is the point. Trump wants to sow discord among the electorate so that if Republicans lose, he can claim that the election is rigged. He is weaponizing the courts for a political narrative, not a legal one. We can choose not to let that happen by how we discuss these cases.
Of course, lawyers must defend the lawsuits in court, which they are admirably doing. The point is not that we should let our guard down. We must be smart consumers of information about Trump’s electoral moves. That starts with headline writers and journalists helping the electorate understand these cases as press releases, not actual legal uncertainties.
While perhaps bumpy, the election will proceed as expected. Millions of people will cast their ballots—in fact, many already have through early or mail-in voting. Thousands of election workers will uphold democracy by counting ballots fairly and accurately. Election officials will certify the results. Close races may lead to post-election lawsuits. All of that is normal.
What is abnormal is the president meddling in election processes. It’s also unconstitutional and unprecedented. Let’s make sure the American people have that vital information in every headline, push notification, social media post, and news story. Our short attention spans value sound bites over detailed nuance. But our democracy requires the American public to understand that nuance so that what are essentially press releases under the guise of lawsuits do not undermine people’s faith in the election.
The post The Press Shouldn’t Hype Trump’s Bogus Alaska Lawsuit appeared first on Washington Monthly.
