The US Constitution and Postal Voting: Why Did Trump Turn Out to Be Right?

Brikulsky I.A.

Abstract

Despite the fact that the issue of Trump's fiasco now seems obvious and is no longer cause for controversy, the author of this paper analyzes the legal side of challenging the outcome of the 2020 US presidential election. The paper analyzes both the lawsuits and court decisions in the Trump case to see how strong the former US president's arguments were and how fair the court decisions were. In addition to analyzing the parties' positions, the author examines postal voting through the lens of constitutional risks and comes to the conclusion that things are not so clear-cut with the court decisions: the courts have ignored a number of Donald Trump's key arguments, allowed a departure from the US Constitution requirements, state election laws, and also allowed questionable and defective postal ballots to be counted.

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Introduction

The US presidential election was over back in 2020. It would seem that arguments about who really won are no longer particularly relevant, and besides, the new president has been running the country for two years. From the outside, it might seem that since Trump lost not only at the polls, but also in the courts, his defeat is obvious and requires no further analysis. Such an approach relies on some kind of a presumption of transparency in the US electoral and judicial system, which under no circumstances can be biased and unfair.

Massive postal voting was a striking feature of the 2020 presidential election in the US. It is to this form of voting in particular that Trump's lawyers mostly attribute Biden's victory. While postal voting is not new to the United States, as it is not to any public order, its nation-wide use first happened in 2020. In one public report on the US election called "Why Did Trump Lose the Election?" the question is posed rather provocatively, as if stating in advance that Trump lost "on every front," including the legal one [11]. While one can agree with sociological, statistical, or other arguments, the assertion that the US courts are in the absolute right raises questions: there is a reason why the conclusions of the study include two final opinions, one of which is presented by the author of this piece and calls into question the overly unambiguous conclusions on judicial challenges to the vote returns in the United States.

The report itself examined 17 lawsuits and related court decisions challenging the vote, including suits filed to the US Supreme Court and state supreme courts. This study includes only those lawsuits and decisions in which Trump challenged the outcome on his own behalf and for which court rulings were already prepared. This approach allowed us to piece together an overall picture of the arguments in contesting the election.

Postal voting done the American way: a few words on the procedures

Trump's campaign office challenged the results of the vote on all fronts: postal and absentee voting, the failure to allow Republican observers into polling places, the obstruction of their work, the constant malfunction of electronic vote-counting machines, and the leaving of absentee ballots unattended. The arguments mainly challenged postal voting as the most non-transparent and uncontrollable form of voting.

The fact is that US electoral legislation is decentralized: the US lacks a single statute that would provide not just basic election standards, but also due process. The only act that touches on the procedural issues of presidential elections is the US Constitution. Article II of the US Constitution, and subsequently the 12th Amendment, covers only a small part of such procedures as applied to electors [16]. Article II stipulates that each state shall appoint an elector in such manner as is directed by its legislature.

Two seemingly obvious things follow from this framing. First, the form of voting for electoral procedures regarding the electors are determined at the state level. If we "translate" American constitutionalism into Russian, it means the appointment of electors is a matter of the stale level alone. Second, the US Constitution clearly states the body that regulates the procedure — the state legislature. Therefore, neither federal agencies nor any other agencies, even at the state level, can interfere and substitute for the will of the state parliament.

As a rule, postal voting procedures are quite similar and look as follows. In Pennsylvania, for example, the postal voting procedure can be divided into four simple steps [12]. The first step is for the voter to request a mail-in ballot from the state or the election commission; then the voter's application is checked against the corresponding voter registry. The second step is for the voter to be sent a pack of documents that contains a ballot and two envelopes. The first envelope is large, the second is much smaller. The second envelope is a "secrecy envelope" carrying the "official ballot" stamp on it. On the outside of the larger envelope is a printed voter's statement, also called a "declaration." The declaration contains a statement (agreement) that the voter has the right to vote in this election. The third step is the process of filling out the ballot. The voter fills out the ballot, puts it in a smaller envelope, and then seals it. The state of Pennsylvania sets the requirements for filling out the ballot: black lead pencil, mechanical pen or ballpoint pen. The fourth step is to fill out the declaration posted on the large envelope and send all the documents to the commission.

The documents are then sent to the election commission, which compares the information in the declaration with that in the voter register. All ballots must be received by the polling station before 8 p.m. on Election Day. Some states, such as Wisconsin, require commissioners or municipalities to immediately return the ballot to the voter in a sealed envelope along with a new envelope if it is found to have been filled out incorrectly or with errors. However, this action is only taken if the voter has enough time to obtain new documents and send them back later [10: Chapter 6].

Trump's main arguments against the postal voting: constitutional law issues

The immediate court challenge was preceded by a series of events in some states: prior to the start of the campaign, state secretaries issued a series of recommendations and letters. These recommendations greatly simplified and mitigated the electoral code regulations. Such "liberalization" allowed secretaries and members of election commissions to manage the electoral process, especially the vote count, at their sole discretion. According to Trump, it was the acts passed by state secretaries under the guise of clarifications, recommendations, and rules that allowed a number of important safeguards of state electoral codes to be neutralized. Related to this is the challenge to the results of the will expression against the Secretaries of State, particularly [3; 2; 9; 8; 5]. The argument that state secretaries were substituting themselves for legislators is also mentioned in the claim to the US Supreme Court. In a number of other states, Wisconsin in particular, the lawsuit was filed against Biden. However, it also addressed the secretaries' recommendations, challenging the very ability to make explanations and recommendations other than those required by law [6].

The main violations were as follows.

First, violations in filling out the declaration, envelopes and ballots. This is the most common violation in postal voting. Because of the complexity of the postal voting procedure, such violations were, in a way, unavoidable. The violations consisted in the following:

● there was no large or secrecy envelope, or the ballot was in the large envelope instead of the secrecy envelope;

● the envelope contained marks or inscriptions that did not allow to identify the voter or contained additional corrections in the ballot altogether;

● there were no voter signatures and dates on the external envelope, meaning it was impossible to identify the voter and the date the documents were mailed;

● The ballot numbers did not match the number on the envelope, and the name of the voter did not match the voter register.

Trump's lawyers also pointed out that ballots were sent to voters who did not apply to the election commissions, thus triggering a process that was uncontrollable.

Second type of violations — correcting voter declarations. As a general rule, the procedures established by state electoral codes expressly prohibit the counting of votes that were obtained with substantial irregularities and that bring the validity of the votes into question. In spite of this, the state secretaries used their own procedure, which such laws did not provide for, and allowed ballots to be resent to citizens during the voting period, along with remarks from electoral commissions. After receiving such a letter, the voter could correct the errors and send the ballot back.

Third, the commissions refused to verify signatures on such declarations and counted all ballots without the necessary verification. Trump's lawyers point out that a number of envelopes contained no names or signatures, meaning it was impossible to verify a voter and his or her belonging to a specific constituency.

Fourth, the commissions received and counted the so-called "questionable ballots". The issue with such ballots is comprised of two elements. The first is receiving votes by mail several days after the polls close, meaning while the votes are being counted. Trump's lawyers pointed out that most of those votes were votes in support of Biden, and with no mailing date at that. The second is receiving ballots from those voters who did not apply for a mail-in ballot, but still received one for some reason. No additional checks were made to investigate such cases.

Trump's campaign office believed that all ballots that were received with these irregularities were defective and could not be counted, as state law expressly provides. In spite of constant complaints from Republican observers and headquarters lawyers, all the defective ballots were stacked together with the other ballots after their removal from the envelope, meaning the defective ballots were mixed together with regular ballots, making it impossible to conduct an objective count. Observers and lawyers for Trump's campaign argued that most of the defective ballots retrieved were for Biden, giving one candidate an unwarranted advantage. This disparity in voting manifested itself in another way: Democrat-controlled constituencies helped ensure that only those voting for Biden were notified of defective ballots, while similar votes for Trump were not taken into account. Anonymous envelopes and ballots were handled in a similar way: they were counted depending on the decision of election commissions.

Republican observers also noted that the violations they identified were ignored by election officials as soon as they noticed that the issue concerned Trump voters. Consequently, no additional or proper verification of questionable ballots was done, and attempts to initiate such a process were simply ignored. For example, these arguments were asserted by Trump's lawyers in an attempt to challenge the vote in Fulton County, Georgia [7; 3], as well as in Pennsylvania (especially in the case [8]).

Such actions of election commissions are a direct consequence of the fact that electoral procedures were arbitrarily changed by secretaries not just during the election campaign, but also in the processes of voting and vote counting. The actions of election commissions, as recommended by the state secretaries, also allowed for neutralizing of the secrecy of the ballot, since the staff could make the connection between the voter and his or her political choice and then send the ballot back or take no action at all at their discretion. In other words, in simplifying state election laws, the secretaries did not provide any additional safeguards to preserve the secrecy of the vote in the context of postal voting.

In my opinion, the most important feature of Trump's lawsuits is the emphasis on the Constitution and constitutional law arguments. Trump's lawyers are absolutely correct in citing the Constitution, indicating that the only regulator of state election relations is exclusively the state legislature, not any other body. Only the law can set the requirements for this level of election process. It is safe to say that Trump raises a lot more issues than it might seem at first glance: it is not just the vote returns that are being challenged, it is the constitutionality of postal voting that is being questioned. Trump's lawyers also pointed out that electoral procedures can only be an auxiliary to an election, and they can in no way deprive the electoral rights of their effectiveness. The role of the US Constitution in challenging the election results was given detailed attention specifically in the Pennsylvania lawsuit to the US Supreme Court. In this lawsuit, Trump points out that previous court decisions allow the Constitution and statutory requirements to be circumvented by ordinary guidelines and rules of state secretaries, particularly as reflected in [13].

The issue Trump's lawyers raise in their arguments is more profound and does not concern the US electoral system alone. The question is, how much discretion should individual state agencies have in regulating such fundamental rights as the right to vote? Legal ambiguity and legal loopholes pose no less of a threat to constitutional rights than do rules that openly violate the rights of citizens.

Courts' arguments on postal voting: is it all so unambiguous?

To resolve the disputes, the federal courts in the Trump case used a classic tool of the US courts — the proportionality test, which allows two opposing interests or values to be "weighed" against each other. The proportionality test determines whether state interference with a right is permissible and reasonable, and whether the limitation of that right is subject to the rule of proportionality.

The court responses to the arguments of the former president were as follows.

First, Trump's claims are disproportionate to the consequences that would follow had those claims been met. Decisions about recounts or cancellations must rely on something more substantial. The courts "weighed" the damage that a recount or a reversal of the vote would do against the damage that Trump had suffered. For example, they pointed out that even if the court found that Trump's arguments are correct, the violations were countered by several million votes of other voters, which would also have to be "annulled". For example, in [9], the court said that granting the claims would result in 6.8 million votes being brought into question, which is disproportionate compared to minor voting rights violations in some polling stations. Judicial involvement in the vote count, which can take the form of either reconsideration or annulment of the results, is an excessive and radical step that is not in the public interest, which implies a prompt and effective tallying of election results. Thus, the requirements of proportionality are not met.

It is remarkable that the courts stated that recognizing a number of postal ballots as defective and not subject to counting would not decide the outcome of the election, although assessing electoral prospects was outside their competence. In analyzing the application of the proportionality test to the Trump cases, it seems that the "test" may allow judges to go beyond the law or ignore it altogether.

Second, Trump did not prove exactly how the denial of his claims would cause him any substantial harm. Moreover, it follows from the claims that, in Trump's view, the harm was caused by the actions of state secretaries or election officials, and there was no proper proof of cause and effect between the alleged violations and the secretaries' recommendations. In fact, the claims are based only on assumptions, but are not supported by concrete evidence, particularly defective postal ballots.

Third, the courts deemed the secretaries' actions as "technicalities" only. The court called such "technicalities" unavoidable because the issue of postal voting is quite complex for voters who cannot be expected to follow the procedure perfectly. Such detailing on the part of state secretaries is intended to make the electoral process more transparent and understandable to the voter. The courts explicitly pointed out that the electoral code and its strict rules should be interpreted more "liberally," without allowing procedures to deprive voters of their vote because "it is impractical to give more weight to formalities" given the number of such ballots. Procedural errors made by some voters should not affect the overall will of the citizens and cast doubt on such a significant number of votes. I would like to note that some courts nevertheless cited provisions of state election laws. As a rule, such laws did contain a prohibition on counting defective ballots, but did not regulate the situation if the defective ballot was corrected before Election Day.

The right to correct a defective ballot based on the recommendation of the state secretary means that election officials disclaim the burden of determining that a postal ballot is defective, allowing voters to exercise their own rights in light of the errors. One of the court decisions ironically noted that "the President is elected by the voters, not by lawyers." It is worth noting that, in fact, state secretaries vested themselves as well as the election commissions with this right.

Fourth, the "usurpation of authority" argument by state secretaries cannot be taken seriously because the law does not detail or establish clear requirements for filling out postal envelopes and applications. If state law does set forth requirements for information on envelopes and ballots, it does not regulate other details, such as the location of the information, procedures, or a specific list of voter information. These matters are at the discretion of election commissions and state secretaries. The secretaries' recommendations are auxiliary, addressing gaps in the law and adapting the requirements of the laws to the real situation. When some commissions and secretaries deviate from established procedures or requirements, it does not imply a violation of voting rights, much less that several million votes are subject to annulment.

Fifth, another argument of the judges that deserves attention is the so-called "efficiency" argument. For example, the courts pointed out that democracy had an interest in a quick, efficient, and definitive count of all legitimate votes, while Trump campaign lawsuits were based on formal irregularities and impeded and inhibited such a count. According to the courts, Trump's actions were not at all aimed at correcting irregularities in individual precincts, but were specifically stalling the process of summarizing the results, hence not pursuing a socially significant goal. This is also supported by the fact that Trump was challenging the postal voting procedures on Election Day or a few days later, even though he could have done so while early voting was still in progress, and that the appeal did not begin until after it became known that Biden had won in those precincts. At the same time, the challenge affected only the constituencies dominated by Democrats, not Republicans.

Based on judicial positions, a major conclusion can be drawn. Several aspects are sufficient to defeat any lawsuits and claims against postal voting. First, whether the applicant's claim is proportionate to the purposes and consequences to which it would lead if satisfied. Second, whether the harm done to the applicant is actually proportionate to the claim he or she has made. Third, the extent to which the requirements imposed interfere with the public interest and constitutional objectives. The question is, to what extent is such a proportionality test appropriate in matters that involve determining the outcome of expression of will, and for what reason does the proportionality test allow courts to depart from constitutional requirements?

The hidden constitutional threat of court decisions

An curious feature of these court proceedings is that both the plaintiff and the courts are guided not by positivist legal understanding more familiar to Russian lawyers, but by a teleological one: not only the norm and its rigid framework were evaluated, but also the goal that was laid down in the norm by both the legislator and the Constitution, meaning the right to freely vote in elections. This is especially clear in court decisions: recognizing the fact that the Constitution requires regulation to be conducted specifically by the state legislature, the court admits that strict requirements can be relaxed so that formal obstacles do not obstruct voting. In other words, this approach allows us to depart from any legal requirements that the court deems too rigorous.

In fact, US courts interpreted the Constitution in their own way: under the guise of guidelines and rules, state secretaries were able to regulate postal voting without having the proper authority to do so. It was this kind of "liberal" approach of the secretaries that allowed for a significant number of defective or corrected ballots to be counted, which partially predetermined Biden's victory. One could say that the courts, under the argument of the disproportionality of Trump's claims and the violations committed, have simply "brushed off" the main rebuke to the secretaries' actions: they are not in accordance with the Constitution. Virtually none of the courts properly evaluated this very argument, and none of the courts clarified the line between "regulation" by the state legislature and "clarification" by the secretary and the extent to which the latter can change electoral procedures during elections for political reasons. The problem of this distinction was a red thread running through all the court cases that involved postal voting. The lack of proper specification can be called a significant constitutional and legal gap. Such gaps inevitably lead to restrictions on the rights of others and contribute to the unlimited power of government agencies.

We can agree that a few counting irregularities cannot call into question the will of the millions of voters in a constituency. However, this approach fails to take into account that the source of such violations is the extensive authority appropriated by the state secretaries. This same approach allows courts to ignore any substantive voting irregularities by arguing that the violations committed are simply disproportionate to the petitioner's final claim. The question of proportionality is determined by judges arbitrarily and on the basis of their own beliefs.

Let us assume that the courts acted correctly and were not guided by a formal approach, but assessed the question of annulment of the results on a larger scale. What are the key takeaways, then? The complete and unlimited discretion of state secretaries to regulate electoral processes, the lack of a proper balance between the Constitution, state laws, and the secretaries' recommendations, and the precedent of ignoring the provisions of the Constitution and the law. This bias toward "liberalizing" electoral legislation (to be more precise, complete legal uncertainty) is not counterbalanced by any other instruments and creates the basis for future arbitrariness. If anything, the proportionality test is appropriate in the present cases only if it does not upset the constitutional balance or restrict the rights of other claimants.

In resolving disputes, the courts proceeded on the simple formula about the "integrity" of postal voting until it was proven otherwise, and since the testimony of Trump observers and other evidence had not been found sufficient, therefore, there was no problem with postal voting. It was not even considered that postal voting itself provides the basis for extensive cases of abuse that were virtually impossible to trace or record, particularly when Republican observers were prevented or obstructed from entering polling stations [4]. It is worth noting that a similar argument about "integrity" until proven otherwise was used by Russian courts in resolving disputes about electronic voting [1: 33-44].

In his lawsuits, Trump explicitly called postal voting "fraudulent," pointing not just to flawed procedures, but to the flawed nature of the institution itself. Postal voting puts any claimant in a position that is ahead of time doomed to defeat in the courts: it is quite difficult to prove a specific violation or fraud took place, because the process itself is hidden from the eyes of observers and candidates, and the laws only to defend violated rights, not rights guarantees. Therefore, electoral process participants can only assume the existence of certain violations. A disadvantage of the courts' assessment of postal voting violations is that they use the same assessment methods and approaches used for other categories of cases, particularly civil and criminal cases. In order to assess the legality or constitutionality of postal voting (or other forms of subsidiary voting, especially e-voting, for that matter), assessing only the specific facts of violations is not enough, since they are only an external expression of the shortcomings of the entire institution of postal voting. In such cases, the legal uncertainties and gaps in postal voting that raise objective doubts must be assessed, for example, by leaving an entire stage of the process out of the hands of election officials, rather than applying the proportionality test only where it will produce a more favorable result. This problem, however, still needs to be worked out in detail.

An important outcome of these lawsuits has gone unnoticed, and yet this is the approach that lays the groundwork for future postal voting disputes, essentially cementing a highly controversial approach to evaluating postal voting in general in court decisions. This means establishing the fact that any defective ballots can be taken into account by the courts if the recommendations of the secretaries, who can change the rules of the game during an election campaign, allow it. The issue of postal voting is not the only one carrying a time bomb due to the broad interpretation of the Constitution and state electoral codes. This means that this practice may subsequently be extended to other forms of voting or even to legal relations that, although not related to elections, are also of public interest.

Constitutional risks of postal voting

Postal voting is a form of subsidiary voting, meaning auxiliary or supplementary voting that exists alongside traditional voting, that is, personal presence at the polling station. Since it is more of an auxiliary and supplementary form, subsidiary voting should not replace the basic form of voting, which means voting through presonally attending a polling station. Such a position was held, in particular, by the Constitutional Court of the Russian Federation in Ruling No. 11-P of April 15, 2014, pointing out that subsidiary forms of voting, including postal voting, should not replace the primary form of voting and should be used only in exceptional cases. That said, subsidiary forms of voting require additional and more effective means of preventing violations [14].

Postal voting has many disadvantages: some are subject to discussion, some are irremediable. However, the main issue is that of credibility and legal technique, and of compliance with all those principles and guarantees that exist for traditional voting. While for the latter, laws most often provide sufficiently clear and transparent procedures that allow at least a minimum amount of free election principles to be observed, subsidiary forms of voting are not always able to properly ensure them. And a court challenge to postal voting in the US presidential election confirms this.

For example, an identification procedure ensures the secrecy of the vote in traditional voting, as do voting in a special booth, and placing the ballot into the ballot box. Members of commissions and observers present at the polling station can verify compliance with this procedure and the fact of voting in person. A similar situation occurs when votes are counted. Postal voting makes it effectively impossible to verify compliance with such procedures: identification and the act of voting itself take place outside the view of election commission members and observers, and election commissions only receive the end result. They are left to rely on the fact that the ballot was received exclusively by the voter, filled out by the voter without any pressure, with secrecy of vote observed, and sent back to the commission.

Although traditional voting does not eliminate all violations, it can minimize them to a great extent. The essential difference between traditional voting and subsidiary voting is in the following. In traditional voting, the state alone is responsible for ensuring all conditions for the secrecy of personal voting, transparency and publicity of the vote count, as well as other principles of election administration. As a rule, a quite extensive and detailed set of regulations exists, which includes both laws and acts of electoral bodies. In the case of postal voting, as the courts in the Trump case also pointed out, the entire burden of ensuring secrecy lies on the voter: in this case, only the voter can certify that he or she voted personally and without coercion. This was cited by Trump's lawyers as one of the reasons for the numerous violations.

Let us recall that the issue of recognizing the postal voting law as inconsistent with the basic law of the state has already been raised in Europe. According to the Austrian Constitutional Court, "a written certification by the voter that he or she filled in the ballot personally and in secret is not an sufficient guarantee of the principle of secrecy of the vote [17]. The use of teleological mode of interpretation is important in this decision, meaning the question of the constitutionality of postal voting was examined through its consistency with the purpose contained in the Constitution. The purpose is to ensure the personal secrecy of the vote in elections. Since postal voting compromises this goal, neutralizes it, and greatly increases the risks of a free election, such subsidiary voting is therefore unconstitutional. It is curious that US courts applied the same "broad" teleological interpretation to similar issues, yet came to a completely opposite conclusion and de facto confirmed the constitutionality of this form of voting, allowing state secretaries to edit the strict requirements of the law and the Constitution as they see fit and reducing the scope of minimum electoral guarantees.

When creating subsidiary forms of voting, any legislator should have set clear limitations, as well as provided additional tools that would not have been inferior to traditional voting in terms of reliability. Otherwise, it is hard for anyone involved in the election process, no matter what country they are in, to believe that postal voting is "omnipotent because it is right". Fewer guarantees, transparency and credibility will inevitably lead to a violation of the constitutional principles of free elections, and thus of the rights of voters and candidates.

These were the risks Trump faced in challenging the outcome of election in courts: the hastily installed postal voting system was quite uncertain and nontransparent, and the state secretaries, through their recommendations and their disregard for the law and the Constitution, exacerbated its flaws. Let us stress once again: Trump was correct to focus on the constitutional and legal aspect of the shortcomings of postal voting, and not just on actual violations.

Conclusion

In their book "The Constitution of Freedom," András Sajó and Renáta Uitz draw an intriguing comparison. Like Odysseus, who tied himself to a mast so as not to be tempted by the sirens, constitutionalism binds the state and sets limits to its power and discretion. This helps to avoid the concentration of power in one hands, to avoid tyranny of the state. Like the siren song that draws sailors to the bottom of the sea with sweet singing, the sense of omnipotence of the state and its officials gradually but inevitably drags the entire social and political system into the abyss [15: 50-55]. Given the extent of the constitutional threat, the slightest precedent that addresses Trump's problem here and now could strategically turn out to have more monstrous consequences for its creators. American courts did not merely sanction the right of state secretaries to simplify stricter statutory requirements for postal voting, but to circumvent the US Constitution and reduce the scope of voting rights guarantees based on a purely formal assessment of factual circumstances.

Personal attitudes toward the figure of Donald Trump and his political views should not overshadow objectivity, much less serve as a basis for denying him his constitutional rights. The judicial precedents of "cancelling" one candidate can later be used against a much larger number of them on the same arbitrary grounds. It is difficult to predict where exactly the "Trump precedent" will lead the American electoral system and how it will affect the further practice of postal voting, but one thing is certain: this precedent is the obvious opposite of positive, no matter how democratic and liberal interpretation is used as its cover.

Received 08.10.2022, revision received 8.11.2022.

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17. Verfassungsgerichtshof (VfGH) 10.412/1985. – Das Rechtsinformationssystem des Bundes (RIS). URL: https://www.ris.bka.gv.at/VfghEntscheidung.wxe?Abfrage=Vfgh&Dokumentnummer=JFT_10149684_85G00018_00&IncludeSelf=True (accessed 11.10.2022). (In German) - https://www.ris.bka.gv.at/VfghEntscheidung.wxe?Abfrage=Vfgh&Dokumentnummer=JFT_10149684_85G00018_00&IncludeSelf=True