Everything you need to know about the Trump administration's latest controversy.
The Hatch Act is in the news this week due to uproar about potential violations at the Republican National Convention.
The accusations involve three critical RNC moments: Secretary of State Pompeo's speech from Jerusalem, Trump and Melania using the White House as a backdrop, and the inclusion of a naturalization ceremony conducted by acting Homeland Security Secretary, Chad Wolf. However, most Americans have never heard of the Hatch Act, and Trump's Chief of Staff believes that "Nobody outside of the Beltway really cares." So what actually is the Hatch Act, did the Trump administration violate it, and should we care?
What Is the Hatch Act?
By ART CHANCE
The Hatch Act of 1939, "An Act to Prevent Pernicious Political Activities," limits certain political activities of federal employees, as well as some state, D.C., and local government employees who work in connection with federally funded programs. Specifically, those in the executive branch, with the exception of the President and Vice President, must abstain from taking "any active part" in political campaigns while on duty. They may not use their official titles or positions while engaged in political activity or participate in any activity directed at the success or failure of a political party, candidate for partisan political office, or partisan political group while on duty, in any federal room or building, or wearing a uniform or official insignia.
Summarily, the Hatch Act was created to ensure that government resources don't subsidize re-election campaigns, that government aides aren't pressured into campaigning for their superiors, and that government officials don't use the influence of their position to affect election outcomes. It ensures that campaigning and governing remain separate activities.
The Trump administration has a history of violating the Hatch Act. The Office of Special Council, which is responsible for evaluating Hatch Act complaints, has issued members of the Trump administration 13 official citations, and 12 more investigations are underway, not including the potential violations during the Republican National Convention. This is despite the fact that Henry Kerner, the head of the Office of Special Council, is a Trump appointee and model conservative.
The most notable offender is Kellyanne Conway, counselor to the president, who has been accused of violating the Hatch Act over 60 times by Citizens for Responsibility and Ethics in Washington (CREW). She's violated the Hatch Act so many times that even the Trump-friendly OSC recommended she be fired, referring to her actions as "egregious, notorious and ongoing." Her response to the recommendation? "blah blah blah...let me know when the jail sentence starts."
Conway is not the only one.The New York Times reported that Trump officials "privately scoff" at the Hatch Act and "take pride" in violating it, and the Daily Beast reported that staffers flaunt violations because they "love the anger it produces." In contrast, during Obama's eight years as president, only two cabinet officials received official citations, and both publicly apologized for their misconduct.
So now that we understand what the Hatch Act is, let's talk about the specific violations that took place during the RNC.
Secretary of State Mike Pompeo's Speech
Watch Mike Pompeo's Full Speech At The 2020 RNC | NBC News www.youtube.com
Secretary of State Mike Pompeo delivered his Republican National Convention speech from a rooftop in Israel. Pompeo filmed the speech on an official overseas trip, but the State Department said he delivered it "in his personal capacity." He never mentioned his position as Secretary of State, but he did speak to foreign policy in general and Trump's "America First" vision.
Does it break tradition? Yes, Secretary of State Mike Pompeo is the first acting Secretary of State in living memory to give a speech at a partisan convention. Other cabinet members have made speeches to national conventions in the past, but the Secretary of State's role in foreign policy has deemed their participation inappropriate. As Susan Hennessey and Scott R. Anderson wrote in a Washington Post op-ed, "Diplomats are supposed to represent all Americans to the rest of the world, and limiting their political activities ensures that they are able to serve this role effectively."
So does Pompeo's speech break department policy? Yes, According to a 2019 memorandum from the department's Legal Adviser, "Senate-confirmed Presidential appointees may not even attend a political party convention or convention-related event." The memorandum explains that the State Department specifically has a "long-standing policy of limiting participation in partisan campaigns by its political appointees in recognition of the need for the U.S. Government to speak with one voice on foreign policy matters."
Does it violate the Hatch Act? Maybe. The State Department has stated that he delivered the speech "in his personal capacity," which, under the Hatch Act, he is allowed to do. However, because the speech was delivered from Israel on a diplomatic visit, it can be argued that he was on duty, and it is impossible to separate him from his official capacity; therefore, he was violating the Hatch Act.
The Use of the White House Grounds for Campaign Speeches
Melania Trump delivers speech at 2020 RNC www.youtube.com
Melania Trump delivered her speech on the second night of the convention from an unconventional location: the White House Rose Garden. And as his grand finale, Donald Trump delivered his speech accepting his nomination from the south lawn of the White House. Trump has stated that the choice to do the speeches from the White House is simply a matter of convenience since it would be "easiest from the standpoint of security." However, many officials have criticized this action for being a Hatch Act violation waiting to happen.
Does it break tradition? Yes, use of the White House grounds as a platform for a re-election speech is highly unusual and represents a blurred line between taxpayer-supported government activity and political campaigning. The "Rose Garden strategy," a term used by political strategists for an incumbent president's use of official events to gain publicity in an election year, is fairly common. But, using the official events to get media attention is not the same as literally using the Rose Garden for televised campaign events.
Does it violate the Hatch Act? Maybe. The President himself is exempt from the Hatch Act. But any other White House employees assisting in the setup/preparation for RNC speeches are in violation. The OSC has stated that federal employees attending the event are not in violation because the Rose Garden and the South Lawn are not considered part of the White House.
Use of Naturalization Ceremony Footage
Naturalization Ceremony shown at RNC
During the second night of the Republican National Convention, Donald Trump presided over a pre-recorded naturalization ceremony for five new American citizens. The ceremony was performed by acting Secretary of Homeland Security, Chad Wolf, and was filmed inside the White House. The video began with Trump striding up to the lectern while "Hail to the Chief" played in the background.
Does it break tradition? Yes. Using a legally binding ceremony as part of a partisan campaign event has never been done before.
Does it violate the Hatch Act? Probably. Acting Secretary of Homeland Security, Chad Wolf, was acting in his official capacity, clearly on-duty, performing a legally binding ceremony in the White House. Because this was used during a political convention in support of the re-election of Donald Trump, it is a seemingly clear violation of the Hatch Act. White House officials have defended the action in a statement, "The White House publicized the content of the event on a public website this afternoon and the campaign decided to use the publicly available content for campaign purposes." The argument seems to be that because the original intent of the ceremony was not to use it for the campaign, it was not a violation.
All three of the questionable actions mentioned above effectively blur the line between the Executive Branch's role in governing and their role in getting Trump reelected. Even though it is unclear whether these actions were technically violations of the Hatch Act, they certainly violate the spirit of the act. Free and fair elections are the foundational principle of Democracy, but Trump and his administration don't seem to care about the rules in place to keep things fair. Americans deserve a federal government that works for everyone, not one that can't seem to tell the difference between campaigning and governing.
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Statistical anomalies in previous elections point to frightening vulnerabilities in how votes are tallied
In 2012, Mitt Romney was declared the winner of the GOP's Iowa caucus by a margin of just eight votes.
That result was announced at 1:30 AM on Caucus night, but two weeks later there was a different result. The Republican Party of Iowa had performed a recount of the votes and Rick Santorum—a candidate broadly considered too far outside the mainstream to stand a chance in the general election—was revealed as the actual winner. By that point of course it was far too late. Romney had already gotten the media attention that comes with winning, and had capitalized on that sense of momentum to achieve a solid victory in the New Hampshire primary.
If that sounds familiar, that's because there is currently a "recanvassing" under way in Iowa to reassess the results of a contest that will once again be decided by a very slim margin. Though Bernie Sanders managed a clear victory in the popular vote, Iowa's elaborate system for awarding "State Delegate Equivalents" at each caucus location (to then be converted to the actual delegate count that determines the Democratic party's nominee), has resulted in a near-tie between Senator Sanders and former South Bend Mayor Pete Buttigieg.
The official winner may not be announced for days or weeks—or it may never be known at all. In the mean time, Pete Buttigieg declared himself the winner on Caucus night, and has been treated as such by much of the media. With Sanders looking more and more like the frontrunner, Buttigieg is seen as much more palatable to moderate general election voters, and many powerful donors and party insiders would much rather he get the nomination. With that in mind, the chaos in Iowa—particularly the faulty app and the release of partial results that seemed to favor Buttigieg—has already sparked speculation of party corruption and election rigging for Sanders voters holding on to memories of the DNC's favoritism toward Hillary Clinton in 2016, but it may be more instructive to consider the model of the 2012 Republican primaries.
2012 was not a simple year for Republicans in the way 2016 was for Democrats. Much like the 2020 field of Democratic candidates, there was not a presumptive nominee, but rather a wide field of contenders with centrists—Mitt Romney and Jon Huntsman—struggling against the enthusiastic support for more extreme candidates like Rick Santorum, Newt Gingrich, and Ron Paul. Polling seemed to swing wildly, from one candidate to the next until—according to some accounts—the RNC tipped the scales toward the man considered the most electable (read: bland and inoffensive) candidate.
The case of bias for Romney is as elaborate and detailed as every budding conspiracy theory about Acronym, Shadow Inc., and the new "Voter Protection Director" for the Nevada State Democratic Party—especially considering the contentious events of the Nevada Democratic Party state convention in 2016. Likewise, the overwhelming variety of those details is evidence—depending on your perspective—of either how insidious the whole plot was, or of the depths of its adherents' delusion.
For a start, there were a variety of issues in that year involving states attempting to increase their influence on the process by ignoring the traditional schedule for primaries and caucuses, skipping ahead of other states. The RNC was conflicted about how to handle that tactic, but many voters felt that the resulting schedule favored Romney's candidacy by allowing states where he polled well to vote earlier, further emphasizing the sense of building momentum. That much was acknowledged as a problem even at the time, but there are other issues that remain murkier. Was the miscount in Iowa intentional? Did the RNC combine fundraising with Romney's campaign too early? Did they pad Romney's delegate count to prevent a brokered convention? Most worryingly of all, were votes flipped to Romney in state primaries that lacked a paper trail?
Whatever the confusion in Iowa, the caucus system is at least public and relatively easy to monitor. But primaries that are carried out with all electronic voting machines are a black box, and the state parties run the show with little oversight. Unlike a federal election, primaries are fundamentally under the purview of political parties. They can choose their nominees however they like. They have chosen a roughly democratic system for a variety of reasons (to build enthusiasm, test candidates' campaign skills, and avoid voter alienation) but if they wanted to undermine the integrity of that process in order to ordain the candidate they see as standing the best chance in the general election, there would be little to stop them. According to two statisticians, Francois Choquette and James Johnson, that is exactly what happened in 2012.
Choquette and Johnson, 2012
When Choquette and Johnson analyzed vote totals out of hundreds of precincts, they discovered a strong tendency for voters in larger precincts to favor Mitt Romney more than did voters in smaller precincts. These results have been criticized as attributable to demographic differences between precincts, but when researchers looked at results out of precincts that kept paper records of voting, that tendency disappeared. Likewise in Utah—where Romney was always expected to win by a wide margin—the results showed no shift in preference toward Romney based on the size of the precinct. The trend was so distinct in competitive precincts with no paper trail that Choquette and Johnson were unable to account for it as a result of chance or any factor other than deliberate fraud. According to their work, Romney received approximately a 7% bump in the most populous precincts in multiple states as a result of votes flipped from other candidates—allowing him to secure the nomination handily.
Choquette and Johnson's evidence was brought to court in a lawsuit filed by a third statistician at Witchita State University. Beth Clarkson works in the university's National Center for Advanced Materials Performance, and was inspired by Choquette and Johnson's research to investigate similar anomalies in Kansas's 2014 general election—larger precincts trending toward Republican candidates. She sued to gain access to more detailed records in order to build a statistical model that could shed light on the question of fraudulent vote flipping. Unfortunately Clarkson's efforts were stymied by Kansas Secretary of State Kris Kobach, who argued that releasing the time-stamped records could somehow violate voter anonymity.
Kris Kobach with Donald Trump
You may recognize Kris Kobach as perhaps the greatest enemy of unbiased elections in recent American history. Kobach is the man whose voter fraud commission pushed the false narrative of millions of fake voters in support of discriminatory voter ID laws, and whose apparent political and white-supremacist motivation for adding a citizenship question to the national census resulted in the Supreme Court rejecting the change—which would have led to dramatic under-counts of immigrant populations, and a shift in congressional districts that would disproportionately benefit the Republican party. While he was able to halt Clarkson investigation, many have credited her lawsuit as being instrumental in the push for recently enacted legislation which now requires post-election audits in Kansas. Reached for Comment, Clarkson admitted that this was a step in the right direction, though she was "not impressed" with the audit techniques being utilized.
Overall, Clarkson seems pessimistic about the fidelity and security of our elections, saying that there is still a lot of potential for fraudulent vote counts, "anytime there's no way to check a paper record." This does include several races in the Democratic primaries, though the New Hampshire primary taking place today is utilizing paper ballots, which leave less room for tampering. Nationally, there has been a push to move toward that model, but for those of us who will be casting votes on electronic machines, Clarkson advocated that, where possible, voters check their electronic vote against the paper record to ensure their vote was recorded correctly. And for all voters, Clarkson had a reminder to check your voter registration online in advance of every election. With recent voter purges Clarkson says there have been many cases "of people being surprised when they arrive at the polls to vote and find out, 'Oh, they don't have me down as a registered voter.'"
Beyond that, electronic voting remains so opaque and vulnerable, all we can do is continue pushing for paper-based voting systems and remind our nation's political institutions—as the primary process continues through New Hampshire and beyond—that we are watching them; that we will not take any irregularities lightly.