Imagine this election night scenario: With a decisive number of mail ballots yet to be tallied, President Donald Trump enjoys a narrow lead over Joe Biden. But before all the votes can be counted — a process that could take days — Trump declares victory, citing purported irregularities with mail-in votes.
You can even picture Trump insisting that the preliminary election night tally must stand as final with a tweet that reads similarly to this one he posted in November 2018, when Florida’s US Senate and gubernatorial elections were still undecided:
The Florida Election should be called in favor of Rick Scott and Ron DeSantis in that large numbers of new ballots showed up out of nowhere, and many ballots are missing or forged. An honest vote count is no longer possible-ballots massively infected. Must go with Election Night!— Donald J. Trump (@realDonaldTrump) November 12, 2018
It might be hard to fathom that sort of authoritarian power grab happening here in the United States, but it’s a scenario that election experts are worried about.
“That is my nightmare scenario,” said Paul Gronke, professor of political science at Reed College in Portland and director of the Early Voting Information Center. “We gotta slow down. Trump’s gonna be tweeting, the media, you, all of your counterparts, have to slow down. Because he’ll claim victory, or he’ll start to claim malfeasance and fraud, lawyers will be climbing into airplanes and arriving in all these small jurisdictions, and it will be not good.”
Gronke’s concern was echoed by Ari Berman, a senior reporter at Mother Jones and author of Give Us the Ballot: The Modern Struggle for Voting Rights in America.
“Trump is still trying to tell his voters that they should vote in person, and Democrats are telling their voters that they should vote by mail,” Berman said. “And mail ballots take longer to count then in-person ballots. So you could very much have a situation where the initial returns make it seems like Republicans are way up, because the mail ballots that are largely cast by Democrats haven’t been counted yet.”
“If you had a situation where Republicans are up and Democrats take the lead based on mail ballots, even if that’s a totally normal situation, Trump is absolutely going to try to weaponize that, and claim it’s evidence of some sort of voter fraud or rigged election,” he warned.
Winners, of course, don’t usually whine about the rules while a contest is ongoing. But Trump has been trailing presumptive Democratic nominee Joe Biden in polls for months. And with the interlocking public health and economic crises stemming from the coronavirus not trending in a positive direction, using the levers of state power to delegitimize election results would be a desperation play.
“You know, you could have a case where this election won’t be decided on the evening of November 3,” Trump told Axios’s Jonathan Swan in an interview that aired on HBO last week. Asked why that’s a problem — after all, there’s no rule that elections have to be decided on election night — Trump said, “lots of things will happen during that period of time; especially when you have tight margins, lots of things going to happen.”
Then, during a media availability on Sunday, Trump claimed that Democrats are using mail ballots to try and “steal an election.”
Trump is preemptively laying the groundwork to challenge a loss to Joe Biden by accusing the Democrats of trying to "steal an election" with mail voting pic.twitter.com/l9bdYrN2r7— Aaron Rupar (@atrupar) August 10, 2020
Despite what Trump would have you believe, mail-in election fraud isn’t really a thing
Since the coronavirus pandemic began to seriously disrupt American life in March, Trump has been conspiracy-mongering about mail voting, tweeting things like it’ll result in a “CORRUPT ELECTION” and the “SCANDAL OF OUR TIMES.” In a remarkable July 30 tweet, Trump went as far as to suggest that the election should be delayed until people can safely vote in person.
With Universal Mail-In Voting (not Absentee Voting, which is good), 2020 will be the most INACCURATE & FRAUDULENT Election in history. It will be a great embarrassment to the USA. Delay the Election until people can properly, securely and safely vote???— Donald J. Trump (@realDonaldTrump) July 30, 2020
In reality, voter fraud of all forms is extremely rare, and that’s especially the case with mail voting. As the Brennan Center detailed earlier this year (emphasis theirs):
None of the five states that hold their elections primarily by mail has had any voter fraud scandals since making that change. As the New York Times editorial board notes, “states that use vote-by-mail have encountered essentially zero fraud: Oregon, the pioneer in this area, has sent out more than 100 million mail-in ballots since 2000, and has documented only about a dozen cases of proven fraud.” Rounded to the seventh decimal point, that’s 0.0000001 percent of all votes cast. An exhaustive investigative journalism analysis of all known voter fraud cases identified only 491 cases of absentee ballot fraud from 2000 to 2012. As election law professor Richard L. Hasen notes, during that period “literally billions of votes were cast.” While mail ballots are more susceptible to fraud than in-person voting, it is still more likely for an American to be struck by lightning than to commit mail voting fraud.
Trump has repeatedly cited episodes of attempted fraud on behalf of Republican Mark Harris in a North Carolina congressional race in 2018 and more recently in New Jersey as evidence there’s good reason to be worried. But as Berman explained to me, there’s an irony in Trump citing instances where attempted fraud was detected and ultimately unsuccessful.
“When you do absentee ballot fraud, or voter fraud in general, on a scale large enough to influence an election, you get caught because it’s obvious you’re cheating,” Berman said. “There’s lots of procedures in place to protect mail voting. Every mail ballot has its own ID number, for example. So there are lots of things you can do to protect the system, and if you try to game the system one way or another, that’s gonna catch the attention of election officials and authorities, and they’re going to be able to invalidate those ballots.”
Trump, however, is less interested in reports of actual fraud than he is creating the appearance of fraud. And that’s where his dismantling of the United States Postal Services comes in.
The USPS is designated with safeguarding mail-in ballots — and it’s facing some unique challenges
Louis DeJoy, a Trump megadonor, became postmaster general in June. Since he took over, he’s done some dramatic restructuring of the United States Postal Service (USPS), leading critics to wonder if he’s working to hamper the institution, which, of course, is tasked with collecting ballots from voters and getting them to polling locations in a timely manner.
After operational changes implemented under DeJoy’s leadership, mail carriers are no longer receiving overtime pay, resulting in service slowdowns. And while Trump has been bashing the USPS for years, the move to kneecap the Post Office just ahead of an election in which unprecedented numbers of voters will try to vote by mail because of a pandemic reeks of an effort to sow chaos — and perhaps provide Trump with a pretext to challenge the results of the election that, according to current polls, he’s more likely to lose than win.
During a recent Fox & Friends interview, Trump was asked to respond to Hillary Clinton’s accusation that he’s trying to sabotage the Post Office ahead of November’s election. Notably, he didn’t deny it.
“As you know, the Postal Service for 40 years has had big problems,” Trump said. “And they’re not equipped to handle a governor where they say, ‘millions of ballots, by the way, will be posted in a couple weeks. Gear up.’ You can’t do that. It doesn’t work that way.” (The Postal Service has said it has “ample capacity” to handle mail ballots.)
Asked on Fox & Friends about Hillary Clinton accusing him of sabotaging the Postal Service, Trump immediately pivots to bashing Clinton and never denies that that's what he's up to pic.twitter.com/zlEMwXxquw— Aaron Rupar (@atrupar) August 5, 2020
Gronke characterized Trump’s hampering of USPS as an effort “to fundamentally undermine the core of democracy.”
“They’re really gonna try this? I mean, this is pretty blatant,” he told Vox. “In some ways, for me, this is worse than the Trump attacks [on mail voting], which is just sort of — he’s flailing. But this could really be harmful.”
Gronke’s sentiment was echoed by Ari Berman.
“I think all of the changes at the Post Office — delaying mail, cutting overtime — can lead to mail ballots being delayed, and that also is an effort by the Trump administration to fight vote by mail,” Berman told Vox. “So I’m less concerned about the rhetoric, and I’m more concerned about the tangible thing that Trump and his allies are doing to try to make it harder to vote by mail, and to try to make it harder for votes to be counted.”
Even congressional Republicans — especially those representing rural areas in which people rely on the Postal Service for everything for medications to clothing — are uneasy with Trump’s detrimental changes to the Postal Service. Last Thursday, Rep. Greg Gianforte (R-MT) wrote a letter to DeJoy saying that “delaying mail service is unacceptable. Do not continue down this road.”
“This action, if not rescinded, will negatively impact mail delivery for Montanans and unacceptably increase the risk of late prescriptions, commercial products or bill delivery,” added another Montana Republican, Sen. Steve Daines.
Those letters came the same day as House Speaker Nancy Pelosi and Senate Minority Leader Chuck Schumer said the changes “threaten the timely delivery of mail — including medicines for seniors, paychecks for workers and absentee ballots for voters — that is essential to millions of Americans.”
The USPS is very popular — it regularly tops the list of Americans’ favorite government agencies. Trump, however, is doing whatever he thinks necessary to maximize his chances of staying in power past next January.
The backdrop to all this is the coronavirus pandemic, which continues to rage out of control in large swaths of the country and makes it risky to vote at polling places that under normal circumstances can be crowded and feature long lines. But instead of embracing methods of voting that will keep people safe, Trump views voter suppression stemming from the pandemic as useful to his cause.
Republicans have suddenly gone to war with mail-in voting
Despite what Trump’s comments might lead you to believe, Republicans have a long history of doing just fine in systems that have lots of mail voting. Deep red Utah, for instance, is one of five states that already conducts elections almost entirely by mail. Republicans in swing states like Florida and Wisconsin have also had lots of success with absentee voting.
But Trump, for whatever reason, has long been convinced that mail voting is bad for him. In April, for instance, he tweeted (falsely) that mail voting has “tremendous potential for voter fraud” and “for whatever reason, doesn’t work out well for Republicans.” (Studies on vote-by-mail have shown no such partisan advantage.)
Republicans should fight very hard when it comes to state wide mail-in voting. Democrats are clamoring for it. Tremendous potential for voter fraud, and for whatever reason, doesn’t work out well for Republicans. @foxandfriends— Donald J. Trump (@realDonaldTrump) April 8, 2020
While Trump is wrong about whether mail-in voting favors Democrats in general, he appears to be correct in believing that mail voting could be bad for him this election cycle. According to Emerson College polling conducted late last month, a whopping 76 percent of voters who plan to vote by mail plan to vote for Joe Biden. By contrast, 65 percent of those planning to vote in person say they’ll vote for Trump.
A normal politician’s response to those numbers might be to work harder to appeal to voters who plan to vote by mail. Trump, however, is no normal politician.
“I think he’s concerned not about mail voting, but that more Democrats are going to vote by mail than Republicans,” Berman said. “I think that’s [the Trump campaign’s] big concern, because they had no problems with people voting by mail in 2012, or 2008, or any of the previous elections in which Republicans voted by mail and encouraged their own people to do so.”
Trump’s message to states trying to make it as safe as possible for people to vote during a pandemic: “See you in court!”
The Trump campaign has also been filing lawsuits against states like Nevada, where officials are expanding mail voting systems ahead of November’s election.
After Nevada Gov. Steve Sisolak (D) recently signed legislation to automatically provide all Nevada voters with a ballot in the mail, Trump responded with a tweet absurdly describing the legislation as “an illegal late night coup,” adding, “See you in court!”
In an illegal late night coup, Nevada’s clubhouse Governor made it impossible for Republicans to win the state. Post Office could never handle the Traffic of Mail-In Votes without preparation. Using Covid to steal the state. See you in Court! https://t.co/cNSPINgCY7— Donald J. Trump (@realDonaldTrump) August 3, 2020
Indeed, Trump’s lawyers quickly filed a lawsuit seeking to block the new law. As my colleague Ian Millhiser explained, the suit’s argument is a mess — but that doesn’t mean it won’t gain traction in federal courts dominated by Republicans.
Their legal complaint in Donald J. Trump for President v. Cegavske is not a model of careful legal argumentation. It claims, for example, that AB4 changed Nevada law to allow mailed-in ballots without postmarks to be counted so long as they arrive within three days of Election Day. In fact, Nevada law already allowed such ballots to be counted. An entire section of the complaint focuses on the fact that AB4 was enacted “on a weekend vote” — the state House approved the bill on a Friday, but the Senate passed it on a Sunday — without explaining how the day of the bill’s passage was relevant to its legality.
The Nevada lawsuit illustrates the Trump campaign’s broader strategy. CNN quoted an unnamed senior Trump campaign official who said “the game plan is to fight [new mail-in voting laws] at every turn,” and reported that the Republican National Committee plans to devote as much as $20 million to contest “voting laws and policies that they view as unconstitutional and potentially damaging to the President’s prospects of winning.”
“We’re not going to have election night in the traditional sense”
Amber McReynolds, the CEO of advocacy group Vote at Home, told Vox that one thing states can do to preempt the nightmare scenario of Trump prematurely declaring victory is pass laws allowing for the processing of mail ballots before election day.
“There are still some states that have outdated policies and laws around that issue. Michigan, Wisconsin, Pennsylvania, Maryland, New York, all don’t allow processing until Election Day, which is why they’re delayed,” McReynolds said. “So we’ve been working on various states to expand the timeline ahead of election day, so that frankly election officials aren’t so stressed with resources trying to get that work done.”
But McReynolds added that Trump’s degradation of the USPS will likely present problems no matter what state legislatures do between now and November.
“I’m very concerned, frankly, and it’s not just because of mail ballots,” she said. “The election process itself relies heavily on the USPS. So there’s required ballot issue notices, required poll worker notices, poll place notices, voter registration requirements — there’s all kind of election notices that are required under federal and state law, and that’s really what’s going to be impacted if the Post Office gets destroyed.”
Berman said that part of the challenge is a mental one. In the age of the coronavirus, people need to drop the assumption that we can always know winners and losers on election night.
“We’re not going to have election night in the traditional sense, and I think all the major institutions in the country should start preparing for that right now and informing people right now that it might take a little bit longer because of an unprecedented pandemic to count the ballots, and there’s nothing wrong with that, there’s nothing illegal about it, there’s nothing rigged about it,” he said. “That’s just how it’s gonna be. And it’s more important to get it right than get it quick.”
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