What if November’s Loser Refuses to Concede?

There's a very real possibility the legitimacy of the 2020 election will be contested.

Richard Hasen, one of the foremost experts in election law, titles his latest WaPo column, “The loser of November’s election may not concede. Their voters won’t, either.” It’s a scary thought, although I’m somewhat skeptical of half his claim.

That President Trump might refuse to concede and get his supporters to go along has been in the realm of possibility a long time. Indeed, it was possible in 2016.

What would happen if President Trump had an early lead that evaporated as votes were counted, and then he refused to concede? The idea isn’t too far-fetched; Trump has raised it himself. Before the 2016 election, he wouldn’t agree to accept the results if he lost. After winning in the electoral college but losing the popular count by about 3 million votes, Trump claimed — with no evidence whatsoever — that at least 3 million fraudulent votes had been cast for his opponent, Hillary Clinton. He set up an “election integrity” commission headed by then-Kansas secretary of state Kris Kobach to try to prove that “voter fraud” is a major problem. But after the commission faced attacks from the left and the right for demanding state voter records with an apparent plan to use them to call for stricter registration rules, Trump disbanded it, with no work accomplished. In 2018, the president criticized elections in Florida and California, where late-counted votes shifted toward Democrats, suggesting without evidence that there was foul play.

But Hasen concocts a not-entirely-implausible scenario where a Democrat refuses to concede:

It’s not just Trump who might not accept election results. Imagine that he wins in the electoral college, this time thanks to what Democrats believe is voter suppression in Florida. The Florida legislature and governor have already sought to stymie Amendment 4, a 2018 ballot initiative to restore voting rights to formerly incarcerated felons. When the state Supreme Court agreed that felons could not register to vote until paying all their outstanding fines, Gov. Ron DeSantis (R) praised the ruling and called voting a “privilege,” rather than a right. Some Democrats have called the new rules a “poll tax,” and a Florida public TV station concluded that “the implications of the bill passed by a majority-Republican legislature preventing former felons from voting could work to ensure Trump wins the 2020 presidential election.” During Trump’s impeachment trial this past week, Rep. Adam Schiff (D-Calif.) said “we cannot be assured that the vote will be fairly won” in November because of the allegations that Trump was trying to “cheat” by pressuring Ukraine to announce an investigation into Joe Biden and his family .

The Florida argument doesn’t hold much water. While I agree that Republican politicians overrode the wishes of the voters as expressed in a statewide referendum, it’s rather absurd to call the requirement that convicted felons pay their fines a “poll tax.” Like it or not, the Supreme Court agreed. Beyond that, the situation is actually more pro-Democrat than it was in 2016, as there will be many felons eligible to vote this go-round that weren’t then.

And the notion that Trump’s failure to get dirt on Joe Biden is somehow going to be grounds for challenging the election results is absurd.

Now, this:

External forces could cause an election meltdown, too. A recent NPR-News Hour-Marist poll found that “almost 4 in 10 Americans . . . believe it is likely another country will tamper with the votes cast in 2020 in order to change the result.” What if Russians hack into Detroit’s power grid and knock out electricity on Election Day, seriously depressing turnout — and Trump wins the electoral college because he carries Michigan? Most states do not have a Plan B to deal with a terrorist attack or natural disaster affecting part of a presidential election.

is more interesting. I honestly haven’t the foggiest what happens in that scenario. Frankly, absent evidence Trump colluded with the Russians in the operation, I’m not sure there’s any provision in our system for correction.

Most of the rest of the column is about the nature of the current political climate, wherein groups aligned with both parties have sewn distrust in the legitimacy of the system. Hasen is clearly a Democrat and argues—correctly, I think—that Republicans have done more to give people reason to doubt the fairness of the process. But the bottom line is that people are unlikely to see the outcome as fair.

Not mentioned by Hasen but important: the fact that most people live in news bubbles that distort their understanding of the state of play ahead of the race. My late mother, who lived in Alabama and got her political news almost exclusively from Fox News, was genuinely shocked when Mitt Romney didn’t win in 2012. Things are much worse eight years later.

Hasen’s closing is not very encouraging:

Unfortunately, we don’t have any good short-term fixes available between now and November. It’s not clear that can we rely on responsible leaders of both parties to assure democratic transitions and acceptance of election results. Republican responses to the impeachment hearings’ evidence that Trump encouraged foreign interference in the 2020 elections are not encouraging. Many contested elections wind up in the courts: According to figures I’ve compiled for my new book, “Election Meltdown,” election litigation has nearly tripled since 2000, with the highest number of cases occurring in the most recent national elections, in 2018. But the Supreme Court itself is polarized, and it is not certain that Democrats would accept a decision by a Republican-majority court handing yet another presidency to a Republican.

That, of course, is a reference to Bush v Gore, the messy SCOTUS decision that ended the Florida recount and thus handed the 2000 election to George W. Bush. While I continue to think the outcome was the correct one, it’s perfectly understandable why Democrats remain bitter two decades hence. And Hasen is right: they’re far less likely to accept the outcome this time.

Hasen offers some modest steps:

There are about nine months until Election Day. Some concrete steps could help minimize the chances of a meltdown, since we can’t do much to fix problems after they occur. For example, journalists could be more careful not to “call” states for presidential candidates until they are absolutely sure enough votes have been counted that the outcome is clear. Social media companies could ban “deep fake” videos that are not labeled as manipulated. Government cybersecurity experts do more to thwart unusual ways of disrupting the voting process, such as attacks on the power grid. And election officials need to have a Plan B in the event of attacks on registration or voting systems. External and internal forces that seek to foment discord are not resting. We can’t, either.

Alas, I have little confidence any of that will happen.

There aren’t many journalists left these days, especially on the national airwaves. The broadcast networks and cable outlets have every incentive to make predictions. That’s especially true for Fox and MSNBC, who have political agendas on top of their business agendas.

And, while I believe our national-level cyber defense efforts are still manned by patriotic professionals, one could be forgiven for skepticism that the Trump administration will be working all that hard to prevent foreign hacking working in his favor.

One would hope states would work hard to protect the integrity of their registration and voting systems. Alas, in our current state of polarization, this will naturally be seen as an attempt to gain a partisan edge.

I would also point out that there’s a crucial difference in Trump losing and failing to give up and a Democratic opponent doing the same: Trump is already President. The former would be an out-and-out Constitutional crisis, testing the very system. The latter would be a sideshow, in that Trump would continue to occupy the White House. Absent large-scale rioting in the streets, it would just be an even worse version of the status quo.

FILED UNDER: *FEATURED, Campaign 2020, Law and the Courts, Supreme Court, U.S. Constitution, US Politics
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. alanstorm says:

    Oh, you mean like the Democrats since 2016?

    Please. We know you hate Trump, but it’s time to give it a rest.

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  2. James Joyner says:

    @alanstorm: Hillary Clinton conceded an election where she received nearly 3 million more votes early the next morning at the urging of President Obama. There’s no parallel to what Hasen is suggesting might happen this time.

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  3. mattbernius says:

    I would also point out that there’s a crucial difference in Trump losing and failing to give up and a Democratic opponent doing the same: Trump is already President. The former would be an out-and-out Constitutional crisis, testing the very system. The latter would be a sideshow, in that Trump would continue to occupy the White House.

    Agreed. If Trump loses, based on his past behavior, I expect that we’ll end up with a strange sort of concession that doesn’t sound at all like a concession. But I hope that I’ll be pleasantly surprised.

    While I agree that Republican politicians overrode the wishes of the voters as expressed in a statewide referendum, it’s rather absurd to call the requirement that convicted felons pay their fines a “poll tax.”

    I agree that it isn’t a exact comparison. The fact still remains that for most felons, the combination of fees, fines, and restitution (not to mention the related interest) come out to a level that is nearly impossible to pay (and restitution, in particular, is used as a punitive tool to ensure that punishment continues after incarceration). Combine that with the difficulties of getting a job (let alone a good paying one) with a felony conviction, and it’s essentially lifetime disenfranchisement.

    In that respect, this is essentially performing a role similar to a poll tax — a financial burden that’s intended to prevent the “wrong people” from voting.

    The Brennan Center has a good whitepaper (published long before this issue) on the topic of Florida’s Fees and Fines system (which is largely used to subsidize state and local governments):
    https://www.brennancenter.org/sites/default/files/2019-08/Report_The%20Hidden-Costs-Florida%27s-Criminal-Justice-Fees.pdf

    I’m not arguing that fees, fines, and restitution shouldn’t be payed. But we need to acknowledge that in the case of felonies they are often set in a way that *cannot* be paid back.

    If the goal was to enforce fees and fines, the far better system would be to establish a formalized payment plan program and allow anyone who was up-to-date on payments to be able to vote. But the goal here was to prevent as many people with felony convictions as possible from voting (and overturning the will of the voters).

    Beyond that, the situation is actually more pro-Democrat than it was in 2016, as there will be many felons eligible to vote this go-round that weren’t then.

    We honestly don’t know if that’s the case. The data on restitution and outstanding debt are so bad that it’s unclear if, for the reasons I mentioned above, there will be any real change in the amount of people who practically (versus theoretically) be eligible to vote. There are a lot of organizations working on trying to get those estimates, but again criminal justice data is really, really bad.

    Addendum: While it’s clear this is part of a larger pattern of Republicans working to limit voting to their advantage, I had a hard time seeing how this could form the basis of calling election results illegitimate in any sort of formal sense.

    Addendum II on this issue (sorry for the hijack James).

    To get a sense of what I mean when I say the data are bad and unavailable, here is Measures For Justice’s mapping of publicly available data around Fees and Fines in Florida (note that this does not include restitution) any county that is hashed out is one where data were not available:

    https://measuresforjustice.org/portal/exploration/?l=FL&m=33&sl=FL&sm=33&fg=17&f=1&c=m&md=0&ef=33.1,33.91005,33.91006,33.91007

    (disclosure: I work for MFJ)

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  4. Teve says:

    @mattbernius: i got a misdemeanor here in florida last year. The probation officer doesn’t give a crap about anything other than me paying the $1500 fine. I’ve got a good job, I can pay it. A lot of people can’t, and their probation is violated, and then they go to jail for a few days and then the fine is increased by $400, rinse, repeat.

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  5. OzarkHillbilly says:

    I think you are downplaying the reaction Democrats will have.

    Ever since the Shelby County ruling Republicans have been working overtime to suppress DEM votes in a dizzying array of schemes. DEMs win a fight against one and the GOP comes up with another. Re-enfranchise a population and the GOP changes the rules. Win a gubernatorial election and the GOP strips him of power. Make a public call for foreign interference, seek it, receive it, win, suppress the investigation, brag about suppressing the investigation, have private meetings with the person behind the interference, the investigation punts responsibility for what follows to a divided Congress. Catch the president dead to rights holding much needed military aid to an ally hostage in an attempt to force a politically damaging announcement about his possible rival, investigate it with witness after witness and documents all while the individuals concerned blatantly lie and withhold documents while their party gives them cover…

    Why in Dawgs name would Democrats accept the results of such an election?

    Of course DEMs aren’t going to accept the results. Will that mean violence? It won’t surprise me if a whackjob or 3 let go, but there won’t be any organized violence, DEMs by and large don’t swing that way. But when you say,

    I would also point out that there’s a crucial difference in Trump losing and failing to give up and a Democratic opponent doing the same: Trump is already President. The former would be an out-and-out Constitutional crisis, testing the very system. The latter would be a sideshow, in that Trump would continue to occupy the White House. Absent large-scale rioting in the streets, it would just be an even worse version of the status quo.

    No, it won’t be a sideshow, it will be a precursor. Of what? Not even Nostradamus could say.

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  6. Kurtz says:

    I’m sorry, but our system is based on the consent of the governed. Currently, we have one party that seeks to disenfranchise voters as often as possible. Worse, it is almost always their opposition that gets affected the most.

    Desantis’s comment that “voting is a privilege” should make any dispassionate observer wince.

    Fix: automatic voter registration for all adults.

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  7. mattbernius says:

    BTW, if Bloomberg (or any other left leaning billionaire) really wanted to have a positive impact on the election (not to mention the lives of “real people”), he could use his considerable wealth to pay off existing Felony debt in Florida.

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  8. James Joyner says:

    @mattbernius: @Teve: I wrote about this in some detail last March and we’re in fundamental agreement. It’s horrendously unfair and unjust. I’m just focused in this post on the feasibility of it being a successful claim of a stolen election.

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  9. James Joyner says:

    @mattbernius: That’s an intriguing idea.

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  10. OzarkHillbilly says:

    And, while I believe our national-level cyber defense efforts are still manned by patriotic professionals, one could be forgiven for skepticism that the Trump administration will be working all that hard to prevent foreign hacking working in his favor.

    I almost forgot, I wanted to disabuse you of any notion that patriotic professionals are going to save us. I commented on this the other day in an open forum: The Fight to Save an Innocent Refugee from Almost Certain Death

    “When Trump got elected, I expected stuff like this,” Galloway, Ameen’s lawyer, told me. “But the question for me was: What about professional prosecutors, whom I considered to have integrity—what would it do to them?”

    On the afternoon of the arrest, Hemesath handed Galloway an unsigned document, drafted from the perspective of Ameen, stipulating that he was waiving his right to a defense and would “agree to be transported in custody, as soon as possible, to Iraq.” She asked if the defense would be willing to sign it. “From that point, I knew that this case would pose all sorts of challenges,” Galloway told me. He decided to recruit Rachelle Barbour, a federal defender who has worked in Sacramento for the past twenty years, to join Ameen’s defense.

    One day, Barbour and Galloway noticed that the government had submitted a secret filing. They couldn’t access its contents. Galloway has a security clearance, but Hemesath, who had written the document, cited “national security” and refused to share it with him.

    This isn’t just one mindless DOJ prosecutor doing this. This is an orchestrated character assassination that if the govt has it’s way ends with an actual assassination, and it involves quite a few people across multiple agencies, all of them “just following orders”.

    Go read the whole thing when you have time, it’s long, and enraging, but very edifying on what is happening inside our govt.

    ETA, meant to say there are a few inside the govt pushing back against this, but their reports get buried and their careers are… questionable?

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  11. mattbernius says:

    @James Joyner:
    I do remember the post. And I also agree that generally speaking, we’re in agreement.

    For rhetorical purposes, I think comparing its intent to a poll tax works (at least for me). For legal purposes, that dog (sadly) will not hunt (especially with the current makeup of the USSC).

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  12. Kit says:

    Republicans have long sought to undermine confidence in government. That we are even talking about candidates refusing to concede shows the progress that the right has made in this regard. A contested election would be as good a boundary as any for marking our descent into official banana-republic territory.

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  13. DrDaveT says:

    @James Joyner:

    I wrote about this in some detail last March and we’re in fundamental agreement. It’s horrendously unfair and unjust.

    This reply short-circuited my need to rebut your “not a poll tax” comment, but I think it is worth pointing out that in many cases the ‘fines’ in question are not part of the sentence — the convicted are being fined for being convicted, in addition to their judicial sentencing.

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  14. James Joyner says:

    @OzarkHillbilly: I do think DOJ and DoD are different animals, in that Trump was able to appoint not only the top levels of the Department but also every single US Attorney. There’s nothing like that in DOD, since the uniformed people all come up through the system and it takes decades to get to the top.

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  15. James Joyner says:

    @DrDaveT: Yes. And, interestingly, I actually agree in the longer post that it “amounts to a poll tax.” I’m less sure of that this morning but it’s an interesting argument.

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  16. OzarkHillbilly says:

    @James Joyner:

    I do think DOJ and DoD are different animals,

    They certainly are. While I knew DOD was playing a role, I did not realize cyber defense was centered there. I thought DHS was taking the lead, and they are very much impugned by that article.

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  17. MarkedMan says:

    As someone who has lived in both functioning states and Trump states, I am very close to believing that our current government is illegitimate today, never mind what happens come November. The most blatantly corrupt President in the history of the Republic will continue (and no doubt accelerate) his corruption in collusion with Senators who represent less than half the population. In fact, even if a few R’s developed a spine Trump could be held in office by Senators representing as little as 9% of the population. Republicans in general represent failed, backward states, whose politicians believe the greatest asset they can offer investors is a poorly paid, poorly educated, docile work force. I don’t recognize the legitimacy of a system that gives 53% of the seats to states that represent 45% of the population, especially since those overwhelmingly represent the most backward states in the union.

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  18. Barry says:

    James, I think that you’re wildly off-base here.

    If Trump loses the election, then his remaining in power would require a very, very large number of senior government civil servants to cross the line into actual treason. These are people who’ve seen numerous Presidents come and numerous Presidents go.

    They’d have to do this in a coordinated effort, for Trump, who has demonstrated 0% loyalty (actually, negative loyalty , IMHO).

    The thing to watch is voter suppression, which the GOP is doing en masse in front of our eyes.

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  19. Kathy says:

    The question is what happens when trump refuses to concede in November.

    If we’re lucky, he’ll concede by December. If not, I’m sure he’ll find scant support for a coup, unless the election is incredibly close and comes down to two votes in some obscure county no one has ever heard of.

    Even then, any attempted coup will turn on what most coups turn on: whom does the military support?

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  20. @James:

    I agree that there are two very different scenarios depending on who the loser is. If Trump loses and refuses to leave, we will find ourselves at a moment of near-collapse of our system (or, at a minimum, a radical redefinition of it, even if we keep the trappings of the constitution).

    If the Dems refuse to concede we may have civil unrest that will take us back to the 1960s, but the degree to which it will be system-transforming would depend on what the basis for the objection is.

    I agree that the Florida situation, as unjust as it may be, would hardly be enough.

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  21. @Kathy: I am surprised you didn’t mention AMLO’s reaction to his loss back in 2006. He refused to concede and led massive protests. And yet, the system persisted. (And now he is president after finally winning).

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  22. @Barry:

    If Trump loses the election, then his remaining in power would require a very, very large number of senior government civil servants to cross the line into actual treason. These are people who’ve seen numerous Presidents come and numerous Presidents go.

    This has been my position. However, the more I watch GOP responses to the impeachment allegations, the less sure I am about such an outcome. (And I know you are talking about civil servants–but note, too, the degree to which this president continues to denigrate and cull those actors).

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  23. CSK says:

    According to CBS, a “Trump confidant” told Republican senators that: “Vote against the president and your head will be on a pike.”

    Of course this is hyperbole, but it is characteristic of this administration to threaten violence.

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  24. Teve says:

    @Kathy:

    Even then, any attempted coup will turn on what most coups turn on: whom does the military support?

    This is why he can’t stay in power. He doesn’t have their support. They’d have to overwhelmingly support him just to consider the idea.

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  25. @Kathy: /@Teve: If we get to the point where we have to seriously ask the question about who the military supports, we will have crossed a Rubicon of extreme seriousness that would mean the system was fundamentally damaged.

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  26. Kathy says:

    @Steven L. Taylor:

    I did not think of His Majesty Manuel Andrés.

    He wasn’t president then (still no presidential reelection here), and aside from his die-hard base within the PRD, not the support of the whole PRD, few people went along with his charade. He wanted a full recount of all the votes cast in all polling places. But he didn’t challenge more than a handful of irregularities in specific places, so he undermined his own case.

    He wielded enough influence to get the Mex City mayor to leave him alone when he had his supporters block Reforma avenue for weeks, but that was as bad as it got. The country, and the city, were assiduously following the drama in the papers and TV news, but life just went on as normal.

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  27. Gustopher says:

    @James Joyner: If there was another election where the Democrat gets more votes and the Republican wins… I don’t doubt that the Democrat would concede, but it would be a body blow for our democracy.

    Massive peaceful protests, sporadic violent protests and assassination attempts. The right doesn’t have a monopoly on crazy people with guns, and things would get out of hand.

    Our system depends on the consent of the governed, and that’s already stretched pretty thin. In 2016, we had not just lived for 4 years under a minority-elected President who spent his time appealing only to his supporters and never trying to heal the rift his election caused.

    Also, if it’s not a Democrat, but a certain independent ideologue from Vermont who believes in the will of the people more than rule of law… all bets are off. Biden or Warren would be trying to calm supporters. Bernie would be trying to get supporters to show up in droves to protest and try to flip electors to the Will Of The People — I don’t think he would be advocating for an armed revolution or anything, just that he would have a different approach that will inflame the situation.

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  28. Kathy says:

    @Steven L. Taylor:

    I agree. but that’s the question in every coup. Ask Guaido why he failed, or the soviets who held Gorbachev hostage for a few days, or ask Evo Morales why he’s living in Argentina right now.

    Of course, the army could split, more so in America where the various services are largely independent of each other. If that happens, civil war is likely to follow.

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  29. Michael Reynolds says:

    On the secondary point of felons voting, have any of you ever met an actual felon who has done time? You’re not talking millions of votes, or hundreds of thousands. I seriously doubt that 5% of cons bother. The majority of cons are busy creating the circumstances of their next imprisonment. I mean, hello? Armed robbers? Burglars?* Con men? Dealers? Child molesters? Rapists? Murderers? This is not a politically involved segment of the population.

    It’s like sentimental animal lovers who think they can cuddle with a lion and end up as lunch. These are not nice people. These are not normal people. These are not people who give a fuck about society, they prey on society FFS.

    I absolutely support giving guys who’ve their time the right to vote. Once you do your time you are from that point, innocent. But if we’re counting on cons to save the country we are well and truly fucked. Frankly a lot will vote for Trump on the grounds that he’s a member of the criminal class.

    *My former colleagues, though I stuck to ripping off businesses.

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  30. @Kathy: I fully understand the dynamic and have repeatedly written here about the pivotal role of the military (especially in Egypt and Venezuela).

    I just mean that in the US context, getting to that decision point would signify a massive collapse of the system (as it would in any well-established democracy).

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  31. Michael Reynolds says:

    As to the US military, it is roughly 14% female with half of those women being black. Overall the military is roughly 20% black. About a third of US forces are based outside the country. Also:

    WASHINGTON — President Donald Trump’s approval rating among active-duty military personnel has slipped over the last two years, leaving today’s troops evenly split over whether they’re happy with the commander in chief’s job performance, according to the results of a new Military Times poll of active-duty service members.

    About 44 percent of troops had a favorable view of Trump’s presidency, the poll showed, compared to 43 percent who disapproved.

    Only 36% of the Air Force is favorable to Trump. The number is 38% in the Army. Only the Marines are pro-Trump, 64%.

    Add in the fact that the US military has never staged a coup in more than 200 years, and the fact that military officers take their oaths more seriously than do Republican senators. That’s not the picture of an organization likely to stage a coup.

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  32. gVOR08 says:

    While the military may not be as corrupted as the administration, they have a deep tradition of staying out of politics. (Although MacArthur and the Bonus Marchers do come to mind, as does Kent State. (Yes, Nat’l Guard, but military.)) If the military stay aloof any shooting is likely to involve Secret Service, Federal Marshalls, and other armed organizations within the administration. And Trumpsky will have two and a half months he still has the power of the Presidency even after losing the election.

    I see our “militias” as a small number of skinheads and a large number of blowhard couch potatoes so I tend to discount them beyond some lone wolf terrorism. I may be wrong, and will the FBI actively oppose any RW terrorism? But if the NC National Guard were ordered by their guv to march on Washington in support of Trump, would their commanders go along? Would the VA Guard try to stop them? Would the Army?

    It’s more likely a contested election would be fought out in the courts and I have little to no confidence the Supremes would find against Trumpsky, no matter how absurd his case. It would be Florida 2000 all over again – we don’t have time to screw around with trivia like counting votes and looking at evidence, we must have stability, which means a Republican.

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  33. Kathy says:

    @Steven L. Taylor:

    This is a first: I think we’re agreeing past each other 🙂

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  34. mike shupp says:

    Here’s a fun thought: Let’s suppose more states start splitting their Elecoral College votes. Imagine an election where, say, Warren wins over Trump in Ohio by say a 51 to 49 vote and wins the Presidency with 272 electoral votes. The Republican-dominated Ohio legislature holds an emergency session two days later and determines that rather than send 18 Democratic electors to Washington, because of the closeness of the vote, it will send 10 Democratic electors and 8 Republicans. So Warren actually winds up with 264 electoral votes and Trump gets 276 votes. Yay, the Good Guys WIN!

    I imagine Steve would point out political scientists don’t think vote splitting is a good tactic in the long run (it leads to states being ignored by candidates since competing for just one or two electoral votes is a waste of time). Point granted, but we aren’t talking about doing this as a regular thing — just to cope with a particular “emergency.”

    Steve might argue that splitting the electoral college vote after an election is undemocratic in various unsavory ways. Also agreed, but perhaps the Ohio legislature could vote to split the vote proportionally just a few days before the election, if polling suggests Trump faces a narrow defeat in the state? That would surely meet most objections. Alternately, the legislature might choose to meet objections in the courts. Perhaps the Supreme Court would be willing to make a ruling, say in July or August 2021. (Anyone want to make a bet on how they’d decide things?) That’d demonstrate that American democracy is working just fine!

    Also, if Ohio might try this, so might Arizona if its voters didn’t do the right thing. And Florida. And Pennsylvania. And Michigan. And Illinois. And …. With little variations, of course. We don’t need a situation where one court ruling can be used lickety split to settle all the legal arguments — we want ten different states arguing different things in ten different federal courts with outraged plaintiffs making ten different discordant arguments to secure ten different final verdicts on ten different dates. Isn’t democracy fun?

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  35. JKB says:

    Concession to the national vote by the opposition hardly matters. In 2016, we saw, even after Hillary’s begrudging concession, her minions set to work to suborn Electors, and the Electoral College. Even writers here have continued a constant harangue about the constitutionally irrelevant “popular vote” in hopes of subverting the Electoral College. No doubt those harangues will rise in volume in November, possibly with the intention of subverting the election if the “wrong” person wins in accordance with the Constitution.

    So the question is, what happens if Electors are suborned and act faithlessly to overturn the election? And more importantly, what if the Congress doesn’t ratify the suborned vote? What if the election is left unresolved as the state-level challenges to the faithless Elector cases are adjudicated? Do we proceed to the House choosing the President with each state delegation getting one vote? And then there is the drop-dead date of March 3rd if the House doesn’t choose. One would expect by then that the popular turmoil in the country to be quite high.

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  36. @JKB:

    Even writers here have continued a constant harangue about the constitutionally irrelevant “popular vote” in hopes of subverting the Electoral College.

    No. I constantly harangued on the unfortunately constitutionally irrelevant popular vote (no scare-quotes required) to underscore the clearly unrepresentative nature of the Electoral College.

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  37. @mike shupp:

    Steve might argue that splitting the electoral college vote after an election is undemocratic in various unsavory ways.

    Well, Steven would point out that the states have the constitutional power to determine how electors are chosen. And he would note that it would be legally problematic to change the rules after the election (which chooses the electors) had taken place.

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  38. @mike shupp:

    We don’t need a situation where one court ruling can be used lickety split to settle all the legal arguments — we want ten different states arguing different things in ten different federal courts with outraged plaintiffs making ten different discordant arguments to secure ten different final verdicts on ten different dates. Isn’t democracy fun?

    I am not sure how that would be reflective of democracy in action, per se.

    (And all of that would still end up in the SC).

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  39. de stijl says:

    @Michael Reynolds:

    Robbin’ hood. I approve.

    I was driving one day listening to NWA’s Fuck Tha Police as loud as my speakers could stand and a patrol car rolled up in the next lane.

    Instantally, I thought to turn the volume down, to be a compliant occupied citizen.

    Fuck that!

    I gave the dude a friendly wave; he is a wage slave just like me, he either gets it or not.

    Chuck D is like to a God. That man is a man.

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  40. wr says:

    @Michael Reynolds: “The majority of cons are busy creating the circumstances of their next imprisonment. I mean, hello? Armed robbers? Burglars?* Con men? Dealers? Child molesters? Rapists? Murderers? ”

    Just about half the inmates in Federal prisons are there on drug charges, and somehow I doubt the majority of them run cartels…

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  41. wr says:

    @Michael Reynolds: “the fact that military officers take their oaths more seriously than do Republican senators”

    That’s a mighty high bar…

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  42. Michael Reynolds says:

    @wr:
    Yes, mostly drug charges, but those conceal some uncomfortable facts. Charges get pled down – you get busted for dealer weight, you cop a lesser plea. You’re still a dealer. And federal prison isn’t really the issue, federal charges are far less common than state. There are genuinely innocent people who get swept up, but the vast majority are guilty of far more than they were convicted of. One tends not to get caught the first time or the second.

    AsI said, I’m all for restoring rights after guys have done their time, that’s only right. But let’s not kid ourselves that this will be some wave of Democratic voters. There are a hell of a lot of white supremacists inside, as well as unsalvageable sociopaths, a large number of woman-haters and people with serious mental illnesses that will not have been improved by prison. Set aside race and you have there a bunch of Trump voters.

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  43. Gustopher says:

    @JKB:

    Concession to the national vote by the opposition hardly matters. In 2016, we saw, even after Hillary’s begrudging concession, her minions set to work to suborn Electors, and the Electoral College.

    Who are Hillary Clinton’s minions? How does she control them? Is it a direct control, or an indirect control?

    I think you will find that she, and the people on her payroll, were consistent in saying that the election results are the election results, and while it’s not the best outcome it is the legal outcome.

    Some other people were going on about flipping electors — these were largely people who supported Clinton, but they weren’t her minions. And she had tried to tamp that down.

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  44. Andy says:

    I don’t see either of these scenarios as very likely. More likely is something like the 2000 election, where the electoral college is decided by a single state and that state is too close to call.

    Alternatively, what about a close election turned by faithless electors?

    One way or another, such disputes would get adjudicated, one or another will win the electoral college, and the winner will take office.

    I think the talk about Trump refusing to leave office is hyperbole. There is no mechanism for a President to allow himself to stay in office once the electoral college has decided. The government will start taking orders from a new Presiden after the inauguration – the idea that the entirety of the federal government would continue to take Trump’s orders after that is a fantasy.

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  45. Gustopher says:

    @JKB: I get a little bit of a “George Soros funds the left with 30 pieces of silver invested for 2,000 years with compounding interest” vibe from the word “minions”… which I am 99% sure you don’t mean.

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  46. Matt says:

    @Michael Reynolds:

    Charges get pled down – you get busted for dealer weight, you cop a lesser plea.

    Yeah the charges get pled down because the initial charges are usually ridiculously inflated/excessive. Right now a friend of a friend is facing felony charges on what should be a misdemeanor ticket (marijuana) because the prosecutor wants the guy to “plead down” to misdemeanor charges. I have no idea how the prosecutor is even getting away with that crap as the law clearly states the weight is a misdemeanor amount. My guess is the prosecutor is assuming that the guy is poor (he is) and won’t have the money to hire a lawyer that’ll care enough to get the charges tossed. Public defenders do a thankless job with low pay and they are over worked so they simply don’t have the time/resources to do anything about it.

    This is a huge problem across the country as prosecutors pile loads of charges including vastly inflated charges in the hopes the defendant doesn’t have the money to do anything other than plead guilty to lesser more affordable charges…

    Your experience with the criminal system is out of date when it comes to this portion. Things aren’t like they were decades ago…

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  47. de stijl says:

    @Michael Reynolds:

    I don’t (and hopefully few do) want to allow released felons to vote because it would benefit one political party over another.

    I want it because it is the right thing to do. I want rehabilitation.

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  48. de stijl says:

    @Michael Reynolds:

    The one time I was jailed was for trespassing – technically, I was squatting, as the building had been clearly abandoned for years.

    It was city of St. Paul jail. It was warm.
    They gave me food; really bad food, but I appreciated the effort. A warm place to sleep was a good thing, plus they dropped the charge. I am not nor have I ever been a convicted felon as of today.

    You are correct, some were scary and crazy. Most were just dudes with bad judgement and bad tempers and bad luck and bad parenting. People who smoke a shit ton of crack smell like a refinery in New Jersey.

    The guards were as shady and sketchy as the prisoners. I was not in my element.

    Six months later I was at a fancy college.

    Btw, there is a lot of similarity between a dorm room and a jail cell in dimension and aesthetics. Granted, the door isn’t locked. The mess hall is roughly equivalent except there are girls. Marginally better food.

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  49. Boyd says:

    Tangential to the point of your post (which is par for the course for me), I had to chuckle at this sententce:

    Beyond that, the situation is actually more pro-Democrat than it was in 2016, as there will be many felons eligible to vote this go-round that weren’t then.

    I don’t think you intended to characterize Democrats as felons, but I found it amusing to interpret it that way.

    Back to radio silence on the sidelines.

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  50. An Interested Party says:

    …we will have crossed a Rubicon of extreme seriousness that would mean the system was fundamentally damaged.

    As if the system isn’t already fundamentally damaged…

    I don’t think you intended to characterize Democrats as felons…

    Well, black people represent a proportion of the felon population far greater than their proportion of the general population, and the overwhelming majority of black people vote for Democrats…are we to believe that most of these felons are rapists, murderers, and psychopaths (particularly in states like Florida), as suggested above…

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  51. dazedandconfused says:

    @Andy:

    To embellish that thought, in the imagined scenario of Trump refusing to leave the White House the LE community and the military are the entities which the courts would charge with physically removing him. Trump would contest, the Supreme Court would rule on it quickly…just as they did in Bush v Gore. Couple of weeks tops.

    I can imagine quite a bit, but our LE community and/or military leaders with our traditions deciding to ignore that ruling? That I can’t imagine.

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  52. Jim Brown 32 says:

    @Michael Reynolds: Not to mention that most Cons are men….and Democrats have a man problem. Truth be told…the Partys majority Male demographic, men of color, are only there in the concentrations they are because the Republican party is openly hostile to them. Not because of any real affinity for Democrats and what they stand for.

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  53. OzarkHillbilly says:

    @Boyd: HA! That made me laugh.

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  54. James Joyner says:

    @JKB:

    Even writers here have continued a constant harangue about the constitutionally irrelevant “popular vote” in hopes of subverting the Electoral College. No doubt those harangues will rise in volume in November, possibly with the intention of subverting the election if the “wrong” person wins in accordance with the Constitution.

    I was out-of-pocket much of yesterday and Steven has already addressed this above. But the Electoral College has gone my way once (2000) and against me another time (2016). In both instances, I argued that 1) the results were legitimate Constitutionally and 2) the Constitution ought be changed.

    In both cases, too, I often caveat that the winner got fewer votes. Why? Because it often matters contextually. One can’t argue that the US is a Republican country on the basis of having elected Republican Presidents those years, given that more voters preferred the Democrat. That’s markedly more the case in 2016 because the margin was so much greater.

    It’s also extremely important in the context of this particular discussion. It’s entirely conceivable—even likely—that, if Trump is re-elected, it will be by cobbling together small-margin victories in enough states to push him over the 270 Elector bar with his Democratic opponent getting vastly more—perhaps millions more—total votes. Absent evidence of outright corruption in the process, it’s my view that the Democrat—for whom I’ll almost certainly vote—should concede in that circumstance.

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  55. James Joyner says:

    @Andy:

    I think the talk about Trump refusing to leave office is hyperbole. There is no mechanism for a President to allow himself to stay in office once the electoral college has decided.

    I agree with the latter half of this. Trump would be hauled out of office shortly after the inauguration under that circumstance. But what if Congressional Republicans, who count the Electoral votes, refuse to certify that the Democrat won?

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  56. James Joyner says:

    @Boyd:

    I don’t think you intended to characterize Democrats as felons, but I found it amusing to interpret it that way.

    I don’t characterize Democrats as felons but operate under the presumption, shared by most Democrats, that allowing felons to vote would overwhelmingly benefit Democrats. It’s mostly demographic; felons are disproportionately black and Latino. Florida Republicans likewise agree, in that they’re bending over backward to make it impossible for felons to vote, notwithstanding the clear mandate of the voters in the ballot initiative.

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  57. Stormy Dragon says:

    @mattbernius:

    There was an interesting article I read that suggested that the FL Republican’s fines ploy may actually end up backfiring on them:

    Prosecutors and judges in Democratic parts of the sate (e.g. Broward County) are rehearing old cases to eliminate unpaid fines, making ex-felons in those areas eligible to vote again, whereas ex-felons in Republican controlled areas are remaining inelligible, which gives Democratically controlled areas more influence over statewide elections than they might have otherwise.

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  58. Michael Reynolds says:

    @Jim Brown 32:
    Democrats have a very simplistic view of demographics. It’s true that so long as the GOP remains a white supremacist party we’ll have the black vote and thus the few freed black prisoners who vote will likely vote Democrat. But then they go on to apply the same assumptions to the Hispanic vote. It’s simply wrong. These are two very different constituencies with very different cultures and origin stories. Hispanics chose to come here; black people not so much. Whites have certainly crapped on Mexicans and others from Central America, but it’s nothing next to the experience of African-Americans.

    The relative decline in the white population is not due to growth in the black community, both have similar birth rates now. The growth is all Hispanic and Asian. Lots of Hispanics identify with the white majority. As for Asians as a minority, they could not be more different than AA’s. We should not be counting on demographics to lead to total Democratic domination.

    The whole majority-minority thing has terrified Republicans while being a crutch for Democrats, and both parties are wildly oversimplifying.

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  59. Nickel Front says:

    @OzarkHillbilly:

    there won’t be any organized violence, DEMs by and large don’t swing that way.

    LOL

    What about Trump’s inauguration? Antifa? Violence is the Dem way.

    And on a side note, I’m still trying to figure out who’s the Governor of Georgia.

    This is all just as stupid, if not more so, as people saying Obama might not leave office. It’s just one more anti-trump wet dream.

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  60. gVOR08 says:

    @Michael Reynolds:

    AsI said, I’m all for restoring rights after guys have done their time, that’s only right. But let’s not kid ourselves that this will be some wave of Democratic voters. There are a hell of a lot of white supremacists inside, as well as unsalvageable sociopaths, a large number of woman-haters and people with serious mental illnesses that will not have been improved by prison. Set aside race and you have there a bunch of Trump voters.

    I’ve never seen any data on how ex cons might vote, but I suspect the overwhelming majority won’t vote.

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  61. @Nickel Front:

    What about Trump’s inauguration? Antifa? Violence is the Dem way.

    Yes, I had forgotten about the riots at the inauguration. The Mall ran red with the blood of patriots.

    And it is known that Antifa is really funded by the DNC (and boy, they are just everywhere, aren’t they?).

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  62. @gVOR08:

    I suspect the overwhelming majority won’t vote.

    You can bank on that based on known behavior of persons in the same socio-economic categories.

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  63. Kurtz says:

    @Steven L. Taylor:

    Hahaha. Yup. The way Antifa is portrayed by the Right, i would have thought they were close to taking over every major city on the West Coast.

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  64. Michael Reynolds says:

    @Steven L. Taylor: @Kurtz:
    Conservatives are easily frightened. They’re older, you see, and age is in part the process of learning new fears. It’s why they need so many guns – very fearful people, conservatives.

    @Nickel Front:
    Boo! I saw a college kid! Grab your AR!

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  65. Jax says:

    @Nickel Front: Yesss….it is known.

    Cue the eyeroll and Game of Thrones theme song.

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  66. Ken_L says:

    Maybe I’m missing something in these horror scenarios where Trump refuses to concede defeat, but “conceding defeat” is not a requirement in the political process. Indeed Stacey Abrams has yet to concede she lost the 2018 gubernatorial election, but Brian Kemp is governor. Trump can hole up with his supporters at Mar-a-Lago as long as he wants, tweeting that he’s still the president and the election was rigged, but what practical impact would it have?

    If the Electoral College elects the Democratic nominee and that person is sworn in by the Chief Justice, then they’ll be the president. It’s inconceivable that the public service and the military would not act accordingly. Trump has not taken any steps to secure the committed support of the organizations he would need to stage a successful coup; rather the reverse. Most of them will be happy to see the back of him.

    No, the dangers lie in those who want Trump re-elected and are willing to take extraordinary, illegal steps to ensure it happens. In all the potential election-rigging other commenters have mentioned.

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  67. Nickel Front says:

    @Steven L. Taylor: casually dismissing all the violence from the left is not a good look.

    You do know that conservative speakers are often banned from colleges because of threats of violence from the left, don’t you?

    Bernie Bros are out there promising violence and gulags.

    More leftist violence is way more likely than Trump refusing to step down in the unlikely case he loses.

    You brush off leftist violence while seriously pondering The Literal Orange Dictator not leaving office were he to lose.

    Again, this is just as stupid as people fretting over Obama not stepping down if Trump were to win.

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  68. Nickel Front says:

    @Ken_L:

    No, the dangers lie in those who want Trump re-elected and are willing to take extraordinary, illegal steps to ensure it happens. In all the potential election-rigging other commenters have mentioned.

    Now do the dangers posed by all those who want Trump defeated and are willing to take extraordinary, illegal steps to ensure it happens.

    This is more likely.

    After all, Trump is literally a dictator moments away from putting gays, Muslims, and women in labor camps. He is an existential threat to our entire democracy! He’s betrayed his country for Putin!

    And you think YOUR SIDE is just going to sit there politely, follow all the rules, and say “Golly gee shucks” when Trump wins?

    The future of the country depends on this election! That’s certainly a call to win by any means necessary.

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  69. mattbernius says:

    @gVOR08:

    I’ve never seen any data on how ex cons might vote, but I suspect the overwhelming majority won’t vote.

    Couple points regarding this and other comments about the previously incarcerated.

    Restoring voting rights (or never taking them) from the previously incarcerated shouldn’t be framed as a Republican/Democrat issue (i.e. which party wins or loses). It’s more importantly a reintegration issue. All evidence suggests that the best way to reduce recidivism (not to mention lower initial crime) is to help people feel connected to their community. And voting is a key component of that process.

    As far as how may previously incarcerated will vote, it’s worth noting that first of all, there are a LOT of ways to end up with a felony conviction (in part because states have expanded actions that fall into felonies). And @Matt is completely correct that overcharging tends to be used as a hammer to get convictions. So there are a lot more people out there with felony convictions than people realize.

    Additionally, while there are some people who definitely have made a decision to make a career out of crime, some of the politically active people I’ve met (admittedly this is my line of work) are people previously incarcerated under felony convictions. We don’t have a good sense of how many people with those background will vote, but I can assure you that it’s more than most people would think.

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  70. Kit says:

    If the incarcerated didn’t lose their voting rights, they might take more of an interest, similar to how some take up an interest in the law. Combine that with a civics education and the carrot of a reduced sentence for those who pass a test and vote, and many might leave prison as far better citizens. The problem, in my mind, is less the prisoners and more their fellow Americans’ preference for punishment over rehabilitation.

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  71. Neil Hudelson says:

    @mattbernius:

    “All evidence suggests that the best way to reduce recidivism (not to mention lower initial crime) is to help people feel connected to their community. And voting is a key component of that process.”

    I’m actually writing a grant this week to launch a registration program for the formerly incarcerated (and, thanks to Indiana’s surprisingly good law, registering those currently in jail or prison but who will be out by election day).

    The granting organization is concerned with ensuring all people have an active place in society, or something to that effect. Your sentence is the thrust of my application. Do you by chance have any of said research handy? I’m doing some digging as we speak, but you could save me a couple of hours.

    —-

    “Additionally, while there are some people who definitely have made a decision to make a career out of crime, some of the politically active people I’ve met (admittedly this is my line of work) are people previously incarcerated under felony convictions. We don’t have a good sense of how many people with those background will vote, but I can assure you that it’s more than most people would think.”

    One of the organizations I work with employs recently-released individuals in a recycling program. Last election cycle, we spoke with their 300+ employees about their ability to vote. Almost to a man, every person there thought that they were barred from voting. Come election day, 75% of Recycleforce’s employees had registered and voted. They even organized car pools and phone trees to make sure everyone got to the polls.

    Misinformation and laws that keep formerly-incarcerated people from voting is a far bigger barrier than any lack of civic pride. Indeed, the former-felons I’ve met tend to be much more politically aware–they know just how much the system can impact a life. Certainly more politically aware than a middle class white dude who starts to think about an election around the 2nd week of November, and whose decision matrix stops at “what will happen to my taxes?”

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  72. Neil Hudelson says:

    @Michael Reynolds:

    That’s quite the caricature you’ve sketched, one that could only have been created by a talented author. I think perhaps you are relying far too much on your own brief experiences with the incarceration system from half a century ago, rather than much real-world, current experiences. In the 70’s, I imagine our much smaller incarcerated population probably did have a greater concentration of low lifes. But, we’ve broadly expanded who we put in jail now.

    It’s odd to have followed up that comment a few hours later with one warning Democrats have too simplistic views on demographics.

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  73. Michael Reynolds says:

    @Neil Hudelson:
    Understanding who most prisoners are, and understanding voter demographics are unrelated.

    I doubt the essential facts of the prison population have changed all that much. Nazis? Check. Murderers? Check. Rapists, child molesters, armed robbers? We have more of some and fewer of others. But I just got off a Skype (work related) with an ex bank robber who did federal time fairly recently and I don’t think his opinion would be far different from mine.

    People in prison are bad people, not 100%, but a good 95%. My bank robber friend was a bad person, now reformed. I was a bad person, now reformed. I’m sure we’re not the only ones, I think a lot of guys reform, and I want them to have the right to vote once they’ve done their time. I just don’t think we should get too fuzzy and warm about cons.

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  74. Matt says:

    @Michael Reynolds: The prison/jail population has changed massively since the 1970s. In the 1970s the imprisonment rate was roughly 110 per 100,000 population. Now it’s a bit over 700ish per 100,000 population. Which is actually down from 767 per 100,000 population in 2007. The increase in prison/jail population was/is fueled by drug convictions. Just a few states legalizing marijuana has caused a noticeable drop in the prison/jail populations. If you were in jail in the 1970s then you missed the mass incarceration boat that came chugging along in the 80s.

    https://www.vox.com/2015/7/13/8913297/mass-incarceration-maps-charts

    There are still violent bad people in jails/prisons (mostly state prisons). There’s also a WHOLE lot of non violent people who have been tossed in there after your experience. Some of those non violent offenders come out as violent offenders =/

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