Imagine if a state legislature appropriated millions of dollars to turn out white voters while spending very few dollars in areas with a predominantly black population. America would righteously rise in protest.
We’ve been down that road before in both public education and in voting. In both cases, our courts, followed later by state legislatures and Congress, acted to prevent government from playing favorites in education or elections.
Now, imagine that Charles Koch announced he was giving $350 million to “assist” government in turning out the vote in jurisdictions that he himself selected and that the monies given were required to be used by these city governments in the manner that Charles Koch decided. You can see the danger.
The management of elections cannot be a private affair. State legislatures and Congress are constrained in their behavior by Supreme Court precedent and the Equal Protection Clause of the U.S. Constitution. The federal Right to Vote Act and the Help America Vote Act were designed to ensure states allocate resources fairly and equally. Allowing private money to flow into government hands to sidestep these requirements undermines the integrity of our elections.
The Koch brothers have not done this, of course. I am from Kansas, where Koch Industries is located, and have had the opportunity to work with Charles Koch. I know he respects the independence of our electoral process. No, this direct interference in government’s management of elections is being funded by the third-richest man in America, Facebook founder Mark Zuckerberg. And the effort is being directed by former Barack Obama supporters who recently formed a charity named The Center for Tech and Civic Life.
Zuckerberg claims he is trying to make sure every American voter is able to vote in a safe environment and to turn out every vote. Yet, the funds are not going to every voter. The funds overwhelmingly are directed to turning out one kind of voter — Hillary Clinton voters living in battleground states whom CTCL expects will vote overwhelmingly for Joe Biden.
Of the top 20 “grants” provided by CTCL to cities and counties, 19 have gone to jurisdictions that Hillary Clinton overwhelmingly won in 2016. The sole county on the list that President Trump carried in 2016 received a paltry $289,000 — less than 0.5% of the $63 million Zuckerberg and his other high-tech allies provided to those 20 cities and counties through CTCL.
Moreover, these funds are being used, as directed by CTCL, in ways that many people argue violate state election laws. In Philadelphia, for instance, the funds are creating mobile ballot pick-up units and drop boxes that many county election officials state are contrary to the state laws prohibiting ballot harvesting. The funds are creating a dramatic disparate impact on the government use of election monies.
As an example, the Wisconsin state legislature provided roughly $7 per voter to Green Bay to manage its 2020 elections. Rural counties in Wisconsin received approximately $4 per voter. Now, with Zuckerberg monies, Green Bay has $47 per voter to manage the election and turn out the vote, while most rural areas still have the same $4 per voter.
You guessed it — Green Bay supported Hillary Clinton. As did Detroit, Atlanta, Philadelphia, Pittsburgh, Flint, Dallas, Houston, and other cities that are together receiving tens of millions of dollars of Zuckerberg money.
Flint, Michigan, is a fascinating example. Trump narrowly won Genesee County, including 21 of the 27 municipalities in the county. But he lost overwhelmingly in Flint — and the CTCL grant went to Flint, not to Genesee County.
CTCL responds to this criticism by stating that thousands of jurisdictions are applying for their grants. And we are supposed to be surprised? Hold out free money and there will be plenty of folks clamoring for it. The problem is that it is CTCL making the decisions about where the money goes. And CTCL is not subject to the same rules as government — they don’t have to hold public hearings and are not subject to accountability at the ballot box. Yet, they are the ones calling the shots in government’s management of the elections. The problem is present even if CTCL’s intentions were as pure as they make them out to be. The actual management of elections, the counting of ballots and determinations about who may vote and when, is a government function, not a private one.
To see it otherwise is to invite battling billionaires into our ballot counting rooms. We can’t let it happen.
That is why the Amistad Project of The Thomas More Society, for which I serve as director, is taking these local governments to court. These monies, if allowed at all, should be provided to the state legislature to appropriate in a manner consistent with the public state election plan required by HAVA, which treats every voter equally and fairly.
If safety and access are heightened concerns due to COVID, those concerns are present for all voters and not just those whom Zuckerberg and CTCL select.
If Zuckerberg wants to play political partisan, he can give his monies to the Democratic National Committee, consistent with federal campaign finance law, and not force us to subsidize his partisanship with a tax deduction.
Instead, he chose to give the funds to an organization with strong and evident partisan ties, with leaders who have a history of denigrating the president, in order to buy local governments to turn out select voters.
Zuckerberg can claim innocence about the partisan nature of CTCL, but I hesitate to believe that he would act with such naivety when spending $350 million.
It is not, however, difficult to believe that Zuckerberg, with his ability to dominate media and discourse with the Facebook platform, is willing to bet that America is ill-informed and will be too slow to respond to his manipulation of government to play favorites in the election. Obviously, the national discussion would be quite different if Charles Koch followed Zuckerberg’s lead in “charitable” giving. While I recognize Zuckerberg is not the cause of this media disconnect, it remains wrong for him to exploit the shallowness of the media for partisan objectives.
And he is wrong to bet that we would not meet this challenge to the integrity of our election system. Hopefully, criticism of his actions will not be censored by those who control our dominant social media outlets.