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As Trump attacks voting by mail, GOP builds 2020 strategy around limiting its expansion

  • Author: Amy Gardner, Shawn Boburg, Josh Dawsey, The Washington Post
  • Updated: June 2
  • Published June 2

A voter drops off their mail-in ballot prior to the primary election, in Willow Grove, Pa., Wednesday, May 27, 2020. (AP Photo/Matt Rourke)

President Donald Trump’s persistent attacks on mail-in voting have fueled an unprecedented effort by conservatives to limit expansion of the practice before the November election, with tens of millions of dollars planned for lawsuits and advertising aimed at restricting who receives ballots and who remains on the voter rolls.

The strategy, embraced by Trump's reelection campaign, the Republican National Committee and an array of independent conservative groups, reflects the recognition by both parties that voting rules could decide the outcome of the 2020 White House race amid the electoral challenges posed by the coronavirus pandemic.

Helping drive the effort is William Consovoy, a veteran Supreme Court litigator who also serves as one of Trump's personal lawyers. Consovoy's Virginia-based law firm is handling a battery of legal actions on behalf of the RNC, several state GOPs and an independent group called the Honest Elections Project, which is connected to a Trump adviser.

The legal firepower and direct involvement of the national party reflect a major escalation in the conservative battle over voter fraud and voting rights, which until this year had primarily been waged by lesser-known groups with far fewer resources. The tactics of those organizations are now being embraced by new players with connections to influential figures in the president's orbit.

Thanks in part to Trump's focus on the topic and his assertion that widespread mail balloting would harm Republicans, claims about the high risks of voter fraud have become central to the GOP's 2020 playbook.

Those involved in the legal challenges said their goal is to protect the integrity of elections and minimize the chance for fraud by limiting changes to election rules at a time of overwhelming demand for mail ballots.

"There is a serious push to send a ballot to every registrant," said Jason Snead, a conservative policy analyst who has led the Honest Elections Project since it launched in February. "I think there is a serious concern that so many registrations are outdated and ballots are being mailed out at great public expense to voters who may be deceased or have moved away or are ineligible to vote."

Trump, however, has taken aim much more broadly at the practice of voting by mail, making sweeping and unfounded claims that it will lead to "MASSIVE FRAUD AND ABUSE," as he tweeted Thursday.

"We don't want anyone to do mail-in ballots," the president said earlier in May.

That puts Republicans in the difficult position of echoing the thrust of Trump's attacks even as they argue that they are not trying to stop voting by mail - and as they continue to work aggressively on the ground to encourage their own supporters to embrace the practice.

Democrats say Republicans are trying to disenfranchise younger and minority voters, who historically have voted by mail in lower numbers than other groups and are less familiar with the practice. The RNC and the president's campaign are pushing to limit mail voting for political advantage, they argue.

"You used to have these small-time, right-wing operations," said Marc Elias, a Democratic lawyer who is litigating a raft of voting cases this year. "Because Donald Trump has normalized all of these crackpot theories about voter fraud, they've all now joined forces under the banner of the legitimate Republican establishment."

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Trump has long made unfounded claims about voting fraud, saying during the 2016 election that the contest was "rigged" and that he would consider not accepting the results if he lost to Democratic nominee Hillary Clinton. After his victory, Trump claimed, without evidence, that millions of undocumented immigrants had voted.

Weeks after taking office, Trump formed an Advisory Commission on Election Integrity with the goal of identifying voting fraud across the country. The commission disbanded within months after a number of states refused to turn over voter data - an "embarrassment" to the White House that frustrated the president, according to one former senior administration official, who, like others interviewed, spoke on the condition of anonymity to describe internal discussions.

Now, Trump's fixation on potential voting fraud has been embraced as a top priority of the major organizations on the right, which are waging combat over mail-ballot rules on multiple fronts.

The Trump campaign has hired three regional directors dedicated to monitoring ballot issues, including identifying the need for legal action in the states, according to a campaign official.

By the end of June, the campaign plans to deploy staff focused on voting in at least 10 battleground states, including Michigan, Pennsylvania, Maine, Wisconsin and Florida, the official said.

Justin Clark, the campaign's top lawyer, is leading the strategy, and Trump is regularly briefed on the effort in every state. One Thursday in April, Trump met for more than an hour on the topic with Clark and RNC Chairwoman Ronna McDaniel, among others.

The president regularly tells Oval Office visitors anecdotes of alleged voter fraud he has heard. And his public rhetoric has ramped up as states have begun contending with an overwhelming demand for absentee ballots - claiming not only that mail-in voting will cause fraud, but that it will "LEAD TO THE END OF OUR GREAT REPUBLICAN PARTY," as he tweeted Thursday.

Ballot fraud is a rare occurrence, and there is no evidence that voting by mail leads to "thousands and thousands of fake ballots" and "massive manipulation," as Trump has claimed.

Some Republicans have grown frustrated with the president's comments because they are often inaccurate and distract from the work party organizers are doing - including a massive field effort in the states to encourage Trump supporters to vote absentee, according to two people familiar with the GOP effort.

Rohn Bishop, chairman of the Republican Party in Wisconsin's Fond du Lac County, a rural conservative area, said Trump's rhetoric on mail balloting is "over the top."

"What we need to do is find out how to be better instead of fighting it," he said. "We should just embrace it."

Instead, many national and state Republican leaders are challenging efforts to expand mail voting. The RNC and California GOP, for instance, sued California Gov. Gavin Newsom, a Democrat, in May, seeking to block his decision to send absentee ballots to voters for the general election.

National and state committees are also intervening in lawsuits in Florida, Nevada, Wisconsin and Pennsylvania, among others, to block Democratic efforts to relax ballot deadlines, lift witness and signature requirements, and otherwise ease voting restrictions. And thousands of volunteers are being recruited by the RNC and Trump campaign to monitor polling stations this year.

Party officials said they are moving aggressively in the wake of the 2018 expiration of a federal consent decree that for three decades limited the party's ability to monitor voting.

"In most of these lawsuits, we are going in to defend the laws on the books," said RNC spokesman Mike Reed, who accused Democrats of "using the pandemic" to relax rules meant to prevent fraud. "We're going to spend as much as it takes to make sure the security of the ballot is protected, well over $20 million."

The GOP claimed a victory Thursday when a state judge in Pennsylvania ruled against a Democratic suit seeking to allow third parties to collect and turn in absentee ballots, a process Republicans call "ballot harvesting."

Meanwhile, the nonprofit group Honest Elections Project has filed supporting briefs in many of these cases. It also launched a $250,000 TV and digital advertising campaign echoing the RNC's rhetoric by calling on Democrats to "stop exploiting the pandemic to push radical election changes."

Snead, the group's leader, said Honest Elections, much like the RNC, is playing defense against liberal groups' efforts to change election rules.

Yet the group has also launched an aggressive campaign to force states to conduct better voter list maintenance - what Democrats call "purging."

The effort is particularly crucial this year, Snead said, when states are contemplating sending absentee ballot applications, and in some cases ballots themselves, to every registered voter.

"My primary goal is to defend the integrity of our elections," he said. "That has as a necessary component the cleaning up of voter lists."

The group has sent notices of intent to file lawsuits to four states - North Carolina, Florida, Michigan and Colorado - claiming that the voter rolls in those states are bloated with people who have died or moved or are otherwise ineligible to vote. Election officials in those states disputed the group's claims.

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Conservatives and GOP officials involved in the voting litigation say they are not working together to coordinate their strategy.

"There are a number of outside groups that care about these issues and often do great work," said Justin Riemer, the RNC's chief counsel. "But largely, it's a party and campaign effort and so I would leave it at that."

However, the legal arguments deployed by the various groups bear remarkable similarities - and share a law firm, Consovoy McCarthy, that is headquartered in Arlington, Virginia.

Consovoy, whose firm represents Trump in two personal suits, also has advised the Trump campaign, the national GOP, state parties in California, Florida, Pennsylvania and Wisconsin, as well as Honest Elections.

The RNC has paid Consovoy's firm $1.1 million for legal work since late last year through April, while the Trump campaign has paid the firm an additional $202,000, campaign finance records show. Consovoy is also the signatory on the letters Honest Elections sent state election offices this year, according to correspondence obtained by The Washington Post.

The campaign chose Consovoy's firm because it is "nimble and fast," has worked for the president, and was willing to take on "partisan" election cases, according to a senior campaign official. Reed at the RNC said the firm does "great work."

Consovoy declined a request for comment.

A former law clerk for Justice Clarence Thomas, Consovoy has litigated voting cases for at least a decade, representing Shelby County, Alabama, in the seminal 2013 Supreme Court case overturning portions of the Voting Rights Act.

His role at the forefront of voting cases this year has caught the attention of voting rights activists and his Democratic rivals.

"I've been his adversary a number of times," said Dale Ho, director of the American Civil Liberties Union's Voting Rights Project. "He's a good advocate, he's a good lawyer. When I see him on the other side, I know to take the case seriously."

According to people who know Consovoy, he is also a friend of conservative activist Leonard Leo, who has raised hundreds of millions of dollars for conservative causes in recent years and has advised Trump on his appointment of conservative Supreme Court Justices Brett Kavanaugh and Neil Gorsuch.

Leo has spent an increasing amount of time studying voting cases, advising outside groups and encouraging conservative donors to support the efforts, said multiple people with knowledge of his activities. He declined a request for comment.

Leo is raising money for two conservative nonprofit networks called the 85 Fund and the Concord Fund, people familiar with his activities said. The Honest Elections Project is a project of the 85 Fund, the people said.

Snead called Leo a "supporter" of Honest Elections, declining to comment further.

Before joining the Honest Elections Project, Snead worked at the conservative Heritage Foundation with a member of Trump's voter fraud commission and longtime activist on the subject, Hans von Spakovsky.

Snead attended the commission's first meeting at von Spakovsky's request to share information from a database he helped compile of past voter fraud convictions in an effort to show it is commonplace, commission records show. Snead said he was not part of the commission or its work.

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Part of the strategy of Honest Elections, Snead said, is to rebrand an effort that had been dismissed as marginal in the past - and that had often come up short in court.

"We want to be very careful how we present this group," he said. "We want to avoid coming off as raising alarm bells about voter fraud for purely partisan purposes. We want to make the case that election integrity is a nonpartisan issue."

However, the new GOP strategy is closely aligned with the work of a small group of right-wing activists and organizations that have long tried to persuade the public that foreigners, felons and the dead are illegally voting in large numbers.

Two long-standing promoters of such voter-fraud claims - conservative lawyers J. Christian Adams and von Spakovsky, both of whom served on Trump's election integrity commission - have led advocacy groups that sued election officials across the nation, alleging they failed to clean up bloated voter rolls and left the door open to fraud.

An advocacy group founded by Adams, the Public Legal Interest Foundation, released a report in 2017 called "Alien Invasion" that named more than 5,500 registered voters in Virginia who it claimed were non-U.S. citizens. Some residents named in the report sued, saying they were in fact citizens. In a settlement, Adams apologized and blamed the mistake on the state's sloppy record-keeping.

Adams and von Spakovsky helped lead another advocacy group, the American Civil Rights Union (ACRU), that sued election officials in Broward County, Florida, alleging the county had an impossibly high registration rate - nearly 100% by the ACRU's calculation. Adams litigated the case.

In 2018, a federal judge ruled after a five-day trial the allegation was "unsupported by any credible evidence." The judge found that the method the group used to calculate the high voter registration rate was "inaccurate" and "misleading."

To arrive at the high rate, the group inflated the number of voters on the rolls and deflated the estimated population eligible to vote, the judge wrote.

"By relying upon an inaccurate registration rate as a basis to suggest a lack of list maintenance, the entire premise of this opinion is flawed from the start," U.S. District Judge Beth Bloom wrote. A federal appellate court upheld the decision last year.

In a statement to The Post, von Spakovsky said it is necessary to safeguard the vote amid the pandemic, saying mail ballots "are susceptible to being stolen, altered, and forced."

For his part, Adams said he welcomed the heightened activity on the right, which he said was long overdue given the number of liberal groups, including Democratic committees, the ACLU and the League of Women Voters, bringing suits this year.

"Dozens of groups have been funded to the tune of many millions of dollars over the years to undermine the integrity of elections," he said. "There are 20 at least that do the exact same thing, and had done it unopposed for the last two decades."

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Honest Elections has embraced the legal strategy of its predecessors, challenging state voter rolls and hoping for success where past efforts have failed.

The group argues that high voter registration rates are a sign that ineligible people are improperly registered. It has threatened to sue states that do not take steps to remove dead people or those who have moved from their rolls.

"Retaining voter rolls bloated with ineligible voters harms the electoral process, heightens the risk of electoral fraud and undermines public confidence in elections," Consovoy wrote in letters to election officials in four states.

Federal law requires election officials to have a "reasonable" program to maintain accurate voter rolls but restricts officials from removing names 90 days before an election. Election security experts say maintaining up-to-date voting rolls is an important measure to prevent potential ballot fraud.

But one elections expert said data produced by Honest Elections showing extremely high registration rates is misleading.

"It's a bogus methodology that has been wholly debunked," said Daniel Smith, a political science professor and elections expert at the University of Florida who testified as an expert in the Broward County case.

Jena Griswold, the Colorado secretary of state, said her state's high statewide registration rate is a point of pride. "Our rate is at 92%, and that's because we're so dedicated to making sure people register and vote," she said.

The state has safeguards for removing inaccuracies from the voter list, including tracking deaths among Coloradans and sending out postcards more than once a year, she said. If the postcards bounce back, election officials investigate.

Snead said in a statement that he stands by the method his group used to calculate registration rates and that the group was still weighing whether to sue - as well as whether to expand the fight to other states.

He said he was aware of the previous court decision but was hopeful for a different outcome in future litigation - and with different lawyers.

"Will Consovoy's reputation precedes him," Snead said. "His firm is just top-notch. There is no better place to start."

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The Washington Post’s Scott Clement, Alice Crites, Emily Guskin and Anu Narayanswamy contributed to this report.

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