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The Democratic Strategist

Political Strategy for a Permanent Democratic Majority

May 27: Trump Preparing Challenge to an Election Loss

In watching Trump’s bizarre messaging on voting by mail, it hit me that he wasn’t really trying to influence election laws, and I wrote it up at New York:

Trump is now regularly claiming that voting by mail is inherently illegitimate, except for grudging exceptions for people who can’t make it to the polls. So, presumably, states that allow for no-excuse voting by mail in November are holding “substantially fraudulent” elections, to use his description for such procedures.  That’s 34 states who do so by law (including battleground states Arizona, Florida, Georgia, Michigan, Minnesota, Nevada, North Carolina, Pennsylvania, and Wisconsin), 11 more that so far are waiving excuse requirements this pandemic year (including New Hampshire), and another that may be forced to do so by a lawsuit (Texas).

A group of 30 political scientists who recently met to look at scary post-election scenarios explained exactly how a vote-by-mail contest might play out, as Louis Jacobson noted at Cook Political Report:

“On Election Night, the Republicans have the lead in a key battleground state, but that lead is erased due to late-counted ballots favoring the Democrats. The participants looked at a scenario where this happened in Michigan. This state already has a modestly high level of mail balloting and expects to have significantly more this fall due to the pandemic. (Notice how these scenarios all revolve around the critical battleground states?)

“President Donald Trump could tweet that the initial count was sufficient and that mail ballots — an election method he’s already inveighed against repeatedly — are illegitimate and thus shouldn’t be counted.

“In Michigan, Democrats occupy the offices of governor, secretary of state, and attorney general, but the GOP controls both legislative chambers. Michigan Republicans could back Trump’s position and decide to submit their own slate of (Republican) electors, bucking the slate that is officially certified by the Democratic officeholders.”

If that seems implausible to you, remember how House Republican leaders Paul Ryan and Kevin McCarthy proclaimed in 2018 there was something fishy in late-counted mail and provisional ballots that enabled Democrats to overtake Republicans after Election Night in California House districts. There were no formal challenges because, (a) there was not a scintilla of evidence anything improper was going on (young and minority voters who lean Democratic are more likely than others to send in mail ballots late or to cast ballots deemed provisional because of some superficial flaw, and Democrats simply took greater advantage of changes in election procedures), and (b) the GOP lost the House by far more seats than those flipped in California.

In a close presidential election where one or two states may well determine the outcome in the Electoral College, crying “fraud” could have much more serious consequences. And yes, a Republican-controlled state legislature might claim for itself the right to name electors in a “disputed” popular-vote scenario; that very nearly happened in Florida in 2000 until the U.S. Supreme Court decided to intervene and award the presidency to George W. Bush.

Slow counts aside, other disputes involving voting by mail could trigger chaos, as in another scenario discussed by Jacobson’s political scientists:

“The participants discussed an example involving Philadelphia voters who, due to coronavirus-related delays, received their absentee ballots late. In this scenario, a state court has allowed these voters to vote by using an existing federal absentee ballot that is typically used by overseas servicemembers. The court allowed them to submit these ballots by the deadline for overseas voters, one week after the election.

“In the scenario, the GOP has challenged this state court decision in federal court, citing a lack of due process and arguing that it unfairly changed the rules of an election in the middle. The Democratic Party countered that the remedy imposed by the state court was justified because it was based on equal protection. In other words, both parties pointed to credible constitutional arguments for their case.”

And if Pennsylvania happens to be the tiebreaker in the Electoral College, you could again have the spectacle of the U.S. Supreme Court deciding a presidential election — all based on the kind of fact situation that led that same Supreme Court to order the disallowance of late mail ballots cast in Wisconsin during its primary earlier this year.

In a fair and rational world, we’d decide the presidency in a national popular-vote election under uniform national procedures and with Congress making available resources for efficient voting and counting and for the prevention and detection of actual fraud, such as it is. Trump and his party, however, not only support maintenance of the Electoral College forever but support and oppose state election decisions strictly based on who might benefit. It creates the situation where any relatively close election will be contested by those who have been told it has already been “rigged.” Even if chaos does not ensue, confidence in democracy will be seriously undermined, paving the way for God knows what.

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