- The Landscape
I had told DNC lawyers that I would serve in November as a poll monitor north of Las Vegas. I’d watched elections–especially close elections–on TV for decades, and I also actually liked the candidate. I also thought the current president, someone who I not only disliked but sometimes actively detested, was undergoing some kind of intensifying mental disorder. The comedian John Mulaney described Trump’s management style in 2018 as that of a horse let loose in a hospital: “No one knows what the horse is going to do next, least of all the horse.” Through the years of his reign, a period that still exists, I felt less and less safe with him having the nuclear codes, the electronic dam controls of imperiled rivers, the duty to stop an eerie new disease that covered the earth, killed millions, and trapped us in a frenzied immobility. Friends had monitored polls before, and especially in the last few national vote-counts had expounded on the satisfaction and richness of the experience. If there was any time to do it, it was now. King George III had leapt forward into the young twenty-first century, was spinning dangerously downward, and needed to be stopped. I felt I could make some kind of difference—every person canvassed, every mis-signatured ballot “cured,” was a single rock in a wall against oblivion.
The plan was to meet several days before November 3 with L.A. Mayor Eric Garcetti’s ground teams in Henderson, Nevada. Garcetti had said that since his city and state were “sure blues,” he didn’t need to do election work there; the election would be won or lost in Arizona and Nevada, he said, something on which he proved exactly correct.) I had been invited by my long-time friend Dean, who’d been a member of the Young Socialist Alliance, and whose organizing days went back to Cesar Chavez’s farmworker strikes. In college I and the rest of our circle had sat in our Berkeley dorm rooms reading about Eugene Debs; Dean wanted to be Debs, and was out in the fields engaged in the Real Thing. Now Dean was a former federal official who’d been trained in Quantico though he’d never worked for the FBI.
The DNC headquarters in Henderson was a long, chilly space in a strip mall filled with empty storefronts. The building was festooned with Biden/Harris signs, which formed a long confetti-like trail from outside windows to the inside walls. We had online training, which exhausted me. The mayor arrived just before lunch with an inspirational, socially distanced speech, strutting and fretting his hour upon the stage. Garcetti is a machine, polished and skinny, like 1948 Sinatra skinny, and wore an immaculate blazer with a pocket square and pin that said “JOE-BYE.” Garcetti’s father had been a famous prosecutor, cutting his teeth as a very young lawyer in the Charles Manson case, ending his career after his first lieutenant, Marcia Clarke, lost the O.J. Simpson trial. Both Garcettis are handsome, Mexican-American men with chiseled features that call to mind Peter O’Toole or the young Gary Cooper. The Garcettis are solid fixtures, like members of other Democratic families in California: the Browns, the Warrens and the Tunneys. The mayor has one métier—politics, and more politics. It is in his sculpted hair, his freckles, down to his lean legs, down to his atoms. However far you were pulling for whatever political cause, he was the one you wanted to be pushing behind you. In Henderson we were driftless barques, and he was the wind.
After training, we canvassed Black and Hispanic neighborhoods for days, chatting with laid-off casino workers standing behind broken screen doors. On election day we returned to HQ for online tutorials about ballot-curing (getting voters to make their own signatures match better). We were then driven in a van out to where we would do the actual monitoring. It was an elementary school in the far reaches of Northeast Las Vegas, one of those creeping peripheries where certain public edifices, usually airports, are located: far from town, close to freeways, eagerly awaiting a spurt of commercial growth around the anchoring venue. Unlike our experience knocking on doors, we were finally able to sit down at the actual monitoring. Our instructions were to watch for people voting twice, support the poll-watchers, and to make sure no one voted after the court-extended deadline of 8 p.m. We were also told, vaguely, to make sure that there was “nothing suspicious” going on. Nothing was. We traded places with GOP watchers inside of a red-taped square or box on the floor that let us see most of what was going on. From 7 to 8 p.m. a duo of GOP watchers dominated the box. They kept standing up and craning their necks, making sure the only people left in the building were registrars, counters, and us, their Democratic counterparts. One man said he was a miner, and looked at me sourly like the truck stop rednecks looked at Dennis Hopper in Easy Rider.
On a break I went out and sat on the running board of the van and pulled my Browning 9 mm. pistol out of my shoulder holster and laid in on my legs. The magazine was in a pocket of my suit jacket and the safety was on. The slide was not pulled back, but the single-action hammer was retracted and it look ready to fire. The hard cast iron of its chamber and barrel had a blueing dye that had been poured into the mold where it had been fashioned in Brussels and Portugal. The walnut stock, or grip, was chiseled with a simple, downward checkering. My father had passed away eight months previously, and this was one of the weapons he left me in his will. There was a beauty to it: say what you wish about the Second Amendment, but certain guns are beautiful works of art. He was a true hunter who butchered everything he shot, but always looked askance at handguns. When I was growing up, pistols were the Other to him—they belonged to military personnel and law enforcement, and had no real place in his country life of bagging whitetails and black bear in rural northern Ohio—he’d bought this sidearm as an investment. And a weapon like this, in Santa Monica where I live, certainly amounted to a fish out of water. Friends of mine who knew teased me endlessly about it, asking me if I polished it and the tiny safe it came in with my MAGA hat. My wife dubbed me a “gun person” now that I had inherited the weapons, and threatened me with banishment to the garage couch if our daughter, sixteen, was ever able to lay eyes on it.
The bigger question, of course, was why, for the first time in memory, poll monitors could be armed. Since Nevada, like many Western and Sunbelt states, was an “open carry” jurisdiction without exceptions, I was permitted to carry it so long as I had the weapon in plain sight, i.e. with my suit jacket off and the gun and holster open to view. Certainly, no one had told me to bring the gun, only that it might be a good idea. Garcetti’s security detail was armed, but they had gone off to a separate, somehow more important polling place nearer the city. The answer to my question, of course, was the threat of violence from the alt-right. There had been Charlottesville. There had been Kenosha. And before that there had been Ferguson and Minneapolis and all manner of alt-right players showing they were—unlike me—armed in a manner that has startled commentators and those who have nervously shared statehouse steps with the Proud Boys, Boogaloo, and QAnon.
I had the gun now because it made me feel safe for myself, Dean, and the rest of the monitors at this poll site. It made me feel safe in the way that the president’s people were made to feel safe when he exercised his gun-lobby muscle and equivocated about good people being on “both sides” of an incendiary protest scenario. This is what we had come to—tribes of people, each of us walled-off Hobbesian laws unto ourselves. Tribes with blue checkered pistols and iPhones watching the peripheries, waiting for mundane or lethal improprieties.
On that running board, looking out beyond the school grounds, I saw the great shaped rock formations that stood in line beside one another under evening drapery of cloud. Behind them were actual mountains, brown scruffy humps forming the foothills of the Eastern Sierra. As undergraduates on cross-country drives out of Berkeley to the east, through Nevada and Utah and Colorado, we would look out the car windows and call the orderly, processional formations the March of the Beasts. They were still here, forty-five years later. They looked finally immobile as the sun declined and relieved them of their shimmer. Their mica patches were still there, thin slits of silver that looked like eyes, watching us, waiting for something to happen.
2. The Week of Magical Thinking
In the bar at the Atria Hotel where we Dean and I watched the returns until about 2 a.m. on Wednesday morning, joined by relatively quiet pro-Trumpers wearing cowboy belt-buckles and pumping their fists. The lights of the LV Strip blazed like coals outside the enormous picture window. The CNN people were looking very, very grim. Most of Wisconsin and Michigan seemed red as rubies. We went to sleep. My (unused) pistol was safely locked in a plastic box wrapped in T-shirts and shorts, inside my duffle bag. But as we slept, county by county, inch by inch, Biden was gaining a lead in the critical urban centers and in a good section of their rural extremities. Nevada, where we’d worked so hard, was still up in the air, as was Arizona. Dean wakened me about 5 a.m. He had been looking at his phone and told me, “Things are starting to turn around.” It was clear that a razor-thin battle was on. No other word for it but battle, and no other description of the process than something razor thin, hideously, intractably sharp. It was happening county by county, which came to feel like street to street, rice paddy by bullet-spotted rice paddy, building by building and room by room. All of Wednesday and Thursday were agony, but the Biden votes grew in those states and then, with agonizing slowness, in both Georgia and Pennsylvania.
Wednesday and Thursday we stayed in the hotel, watching nail-biting results, with Wisconsin and Michigan bending blue, Trump screeching at each swerve in the road. I could not pull myself away from the hotel television; it was like an Alfred Jarry play interposing itself into what was once a settled, public, and sometimes enjoyable enterprise. “The fraud on the American public,” he proclaimed, is “an embarrassment to our country.” The people surrounding him, including family members, appeared to be the only ones embarrassed, not by what he was saying but by the fact of his saying it. On Thursday night, he went back to the White House pressroom to claim, again with nothing resembling proof, that he was being “cheated” by a “corrupted system.” Harking back to his dismissals of “seven-hundred pound” hackers working from their oversized beds on laptops, he spun out a groundless conspiracy theory concerning corrupt voting officials, a burst pipe, and “large pieces of cardboard.” No more insane speech had ever been made by an American president, not even Nixon in his hall-wandering Watergate sob sessions with Kissinger and his chief of staff Alexander Haig.
The only question was whether and how the Republican Party, which Trump had tormented, ravaged, and then marvelously seduced, would begin the necessary disassociation with him that would allow the commencement of transition. You could see in his face the true fulcrum of his undoing: his mishandling of the pandemic, the then-quarter million lives that lay around his feet like withered leaves. In the final weeks as his (admirably competent) ground game was winding down, he was declaring to rallies full of red-hatted jackals that the virus was vanishing, that he “might” fire Dr. Fauci after the election, and that “this administration, this great administration, is not going anywhere.”
What this writer realized, not fully until the last, somewhat successful rallies was that while Trump was exiting, Trumpism was not. You saw in his face the certainty that his base was dug in, following his hollow bellowing and promises of walls, a gutted ACA, and revenge upon BLM protestors with whatever repressive apparatus would follow his orders. What Trump could not face was that after a bumbling start, Biden was endearing himself to skeptics with his ordinary decency and respect for bipartisan compromise. Not only was he the necessary anti-Trump (a reason to be elected in and of itself), but he brought with him decades of legislative stewardship and the respect of world leaders he had earned while serving as vice-president. He recognized that the pandemic had revealed the human cost paid by states without safety nets and an underclass without access to medical care until the ventilator beckoned.
Back in Los Angeles by the seventh, I sensed that something arguably final might happen, or start to happen, very early Saturday morning Pacific Time. The rest of the world had, of course, already wakened and had been in front of their televisions, bristling with the same premonition. I drifted in and out of sleep on the long day bed I had pulled in front of the wide-screen. Though CNN wouldn’t yet call Arizona, Nevada, or Georgia, it soon became clear that Trump would be unable to maintain Pennsylvania. Even if all remaining Keystone votes came in for the president, it would not be enough for him to outrun the (small) blue waves rippling consistently in from both Philadelphia, Pittsburgh, and their respective suburbs. It was finally over.
It was finally over. Trump, who had decried science for so long, was having his future handed to him by science’s big brother, arithmetic. I closed my eyes and saw the Trump family gathered around the table like Captain Smith and his staff in the film Titanic. The ship’s designer is played by Victor Garber. Spreading out the blueprints and pointing to the keel, he explains, in his calmly terrified Irish brogue, how an iron vessel is doomed once it tips forward until its compartments are waterlogged. An undercaptain blurts out “But the ship cannot sink!” “O it can,” replies Garber; “and it will, with mathematical certainty.”
3. Legal Challenges, Futility Thereof
Bush v. Gore, though largely limited to its facts, stands for the proposition that federal judicial intervention in a state election process is only justified where there is clear and convincing evidence (a high standard) that that process violates one of the candidates’ rights under the Equal Protection Clause. Bush’s rights were held to be violated for a very narrow reason. It was not, as some argue, that counting simply had to have an endgame under Florida’s election laws. It was that there was a de facto disparity in the counting rules and practices within the state.
The body of the Supreme Court opinion illustrated this by stating that only some batches of ballots were counted by actual election officials. Others were counted by people effectively subcontracted to count them—teams of lawyers, retired judges, county officials, state non-election officials, and even groups of schoolteachers, librarians and whatnot. It wasn’t clear where each batch from a polling site would end up, and there was no way, or no effective way, of telling how competently the non-election “officials” were operating. It was like a maze. One group of counters would require that the chad had to be absent, completely punched through, while another group would count the notorious “hanging” chads, deeming that even though the chad was not punched through, the fact it was hanging showed intent to vote for that candidate.
That kind of disparity among counting personnel has largely been eradicated in the twenty years since “B v. G.” It was a tremendous embarrassment for the state of Florida, and no other state wanted to be called out for something similar. These changes have made ballot-counting challenges almost (thank God) obsolete. See Cass Sunstein.But there are very few avenues left to judicially challenge ballot-counting, which remains nearly the only way to contest election results.
The remainder of the legal challenges were simply too absurd to even describe, and have immediately turned to dust. If I or one of my law partners were to attempt the loony briefings the Guiliani team proffered, we would be massively sanctioned and possibly thrown in the lock-up. Guiliani had the thinnest thread of a remaining profile that enabled him to avoid such “doomsday” sanctions.
The brick wall that these last suits faced is best explained as follows. The federal courts are very loath to interfere with state government processes, or state officials’ roles in a process that eventuates in a federal result like a Presidential election. This reluctance to interfere is called the Abstention Doctrine, and says that once the state process is underway (lots of decisions on when it is “underway”), the federal courts may intervene but invariably choose not to. It began in a Sixties decision, Younger v. Harris, involving the draft resistance leader David Harris (then Joan Baez’s spouse) and, as defendant, Evelle Younger, the California attorney general who ended up being the fifth name partner in the law firm where I was largely trained. (Younger was a dolt; he had nothing whatsoever, not even a desk, in his office; only numerous American flags on poles and endless pictures of himself with Reagan, whom he regarded as the Risen Christ).
Harris, who was eventually convicted in federal court of the felony of refusing to report to the draft board, threw in challenges to the state’s draft board review process, as draft boards were a hybrid state-federal animal. The Supreme Court upheld what came to be known as Younger Abstention, which was followed by Colorado River Abstention and three or four other species of the same doctrine. Again, the rule is pretty simple: though the federal courts may have jurisdiction over something very much involving a state’s laws and administrative proceedings, prudence and the danger of inconsistent rulings dictates that the federal court should choose not to take the case.
Chief Justice John Roberts, hopped up by the icebox wine of federalism, is a huge fan of abstention. He probably has a T-shirt that he wears at the Supreme Court’s basketball court [Kennedy and Breyer and O’Connor & RBG played there] that says “More Abstention.” He is tired of federal court challenges to state processes and he controls the docket ever since the Judicial Economy Act of 1920.
Ten days after the election we were still waiting for the final, final result, statutorily triggered in Georgia and Pennsylvania and underway elsewhere as the administration launched theories of phantasmal conspiracies, abandoned ballots, and the time-honored GOP bugaboo of ballot stuffing. A Republican friend sent me the Robert Caro anecdote from The Means of Ascent illustrates the old chestnut of Democratic cheating. When ballot-stuffing crews were underway in LBJ’s first congressional race, a young aide could not get the name off of a worn headstone in a Pedernales graveyard. The very tall Lyndon grabbed him by the collar and said “Son, you go back and get the name. That man has as much right to vote as anybody in this cemetery.”
And so it goes. The Biden pleas for unity seem futile. Trump became the one in the bunker. Al Franken described all politics as the ball taking funny bounces (his native state had been ruled by an ex-wrestler). The ball is only dribbling a little now, but it bounced harder and longer than I have ever seen. And it bounced back to us. Now if we can just keep it in our hands.
Richard Wirick is the author of four books: One Hundred Siberian Postcards (2006), an adoption memoir, followed by the story collection Kicking In (2010) and the novel The Devil’s Water (2013). An essay collection, Hat of Candles, was published in 2020. He writes for a wide variety of US and UK periodicals, and practices law in Los Angeles, where he lives with his family.