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Luzerne County: How far will the Justice Department go to smear 2020 votes?

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On Thursday, President Trump, White House staff, federal prosecutors and Trump campaign spokespeople issued dire warnings about voting this fall with mailed-out ballots after a temporary election worker in a Pennsylvania County apparently mishandled nine ballots cast by military service members.

The incident occurred in Luzerne County, Pennsylvania, a swing county in a swing state, where nearly 6 million votes for president were cast in 2016’s fall election. (Trump beat Hillary Clinton by 44,292 votes.)

The White House and Trump campaign statements raced to the top of national news and social media. They also drew intelligent rejoinders from experts who know how elections are run, from warnings not to fall for claims of massive malfeasance when poll workers routinely make small scale errors, to tweets that the mistake involving discarded ballots should have been easily fixed by routine procedures.

“Luzerne County has the ability to contact these military voters and enfranchise them, despite the mistake, but now, the DOJ [Department of Justice] has already pierced the secrecy of their ballots, before the county could act to help these voters, with no legitimate law enforcement reason,” tweeted David Becker, a former Justice Department Voting Section attorney who is now executive director of the non-profit, non-partisan Center for Election Innovation and Research.

“After investigating for only 3 days, apparently finding no crime, and before the military voters were notified, the DOJ violates ballot secrecy, and the AG [Attorney General William Barr] personally briefs the president on this fixable mistake, and shortly after, the president uses it in his campaign,” Becker said in an earlier tweet recounting the events.

Becker’s comments raise disturbing questions. How far will the Justice Department go to smear routine election administration on behalf of the president’s re-election? The mistakes made in Luzerne County, which twice voted for Barrack Obama but backed Trump in 2016, were noted by local election officials. A temporary poll worker was fired, but the incident was quickly seized by the Justice Department, White House and Trump campaign which announced investigations and issued statements.

The U.S. attorney general’s fealty to Trump above protecting the Justice Department’s reputation as being above politics, as many scholars have noted, is unlike anything seen in decades and extends beyond voting. Barr has assailed federal prosecutors for not arresting protesters in racial justice protests. Even the nation’s military chiefs have worried that Trump will order them to intervene if there’s election unrest.

It may be hard not to react viscerally as Trump continues to lie about purported fraud involving mailed-out ballots and keeps escalating his attacks on election officials—who largely have let those inaccurate smears go unanswered because they are civil servants who do not speak about elected officials due to their professional ethics.

But there may be a counterpoint worth keeping in mind. While the Justice Department is abusing its immense power by issuing statements about investigations before any evidence has been presented in court, there is something pitiful about the FBI, state and local police resorting to dumpster diving in rural Pennsylvania to boost Trump.

The Luzerne County, Pennsylvania, episode underscores that small-scale errors are a fact of life in managing elections, but they are not indices of a flawed overall system.

“There will be reports of ballots sent to voters that end up in the trash or in a ditch. We may hear about a box of ballots never delivered to voters or election officials by the post office. There may be isolated instances of fraud, or of things that initially look like fraud but turn out to be election administrator error,” Rick Hasen, a University of California Irvine law professor and nationally known expert on elections, wrote in the Los Angeles Times. “This doesn’t mean we won’t have a fair election overall, and we should not allow cynical political operatives to parlay small-bore errors into a full-scale attack on the integrity of the November vote.”

As other analyses have noted, it is Barr and DOJ officials following his orders (and not all are) that have broken with institutional protocols to insulate the Department from political tides. Beyond the abuses of power, abandonment of professional ethics and politicizing the agency that is supposed to defend voting rights, not subvert them, is a measure of desperation by a president whose rhetoric suggests that he would not be re-elected in a normal election.

As the New York Times noted on September 26, Barr’s briefing Trump on finding nine mishandled mail-in ballots in a state “was akin to telling him about the most mundane law enforcement  developments across the country,” which was anything but briefing a president “on a criminal D.O.J. investigation only if it was of some major importance to national security.”   

It remains to be seen how far the DOJ can go to interfere in America’s locally run elections. Last Thursday’s statement by David Freed, the U.S. Attorney for the Middle District of Pennsylvania, in a letter to Luzerne officials, was a slap on the wrist filled with more innuendo than facts.

“The preliminary findings of this inquiry are troubling and the Luzerne County Bureau of Elections must comply with all applicable state and federal election laws and guidance to ensure that all votes—regardless of party—are counted to ensure an accurate election count,” Freed said. “Even though your staff has made some attempts to reconstitute certain of the improperly opened ballots, there is no guarantee that any of these votes will be counted in the general election.”

As Becker’s tweet noted, it was the DOJ that breached the secret ballots—by revealing their presidential votes—and blocked officials from resolving an easily fixed problem.

Election officials in swing counties know the stakes in 2020’s election. They do not need reminders from the Justice Department about doing their job. While the prospect of the DOJ looking over their shoulder is unnerving, the Luzerne County incident also reveals how worried Trump is about losing. And it is a nationwide tipoff of how far the attorney general and president will go to create mirages that undermine public confidence in the voting process and results.