President Donald Trump seems to be approaching Election Day like a commander-in-chief in the military sense. He’s beginning to lay out a strategy that reportedly includes the idea of declaring an early victory on election night — before all the votes are in — and Joe Biden is reportedly preparing to fight back.
Axios reported on Sunday that Trump intended to declare victory early on election night, if it appears he is ahead, despite the fact that states will still be counting mail-in ballots — and that some states, like the swing state Pennsylvania, will still be accepting mail-in ballots throughout the week.
Sunday evening, Trump denied that he’d made the claim, but then implied that he would “go in the night of — as soon as the election is over — we’re going in with our lawyers,” presumably to mount legal challenges to disrupt the vote count before all votes were in.
Speaking of Pennsylvania Gov. Tom Wolf, whose state will accept ballots postmarked by November 3 (Election Day) and received by November 6, Trump stated, “We don’t want to be in a position where he’s allowed, every day, to watch ballots come in. He then implied that counting all votes could lead to voter fraud — a myth with no evidence.
Biden responded to the report on Sunday by saying simply that Trump “is not going to steal this election.” Beyond this statement, his campaign is preparing to countering Trump’s legal challenges as they come. According to Politico, Biden has begun fundraising to cover the legal fees for those challenges.
The pandemic has led to a massive surge in mail-in votes. Trump has used this to spread a myth that mail-in voting is a form of voter fraud.
Trump and other Republicans have attempted for months to block the democratic process of counting valid mail-in votes across the country, using the unsubstantiated claim that these ballots are more prone to “voter fraud.”
However, there’s no evidence that the mail-in process makes voter fraud easy; as Vox’s Jen Kirby has explained:
Voting fraud, in general, is rare. In Oregon, which has been voting by mail for about two decades, officials referred 54 cases of possible voter fraud to law enforcement in 2016. Of those, 22 people — representing just 0.0001 percent of all ballots cast that year — were found guilty of having voted in two states.
Another analysis by the Washington Post and the nonprofit Electronic Registration Information Center found officials in Colorado, Washington, and Oregon referred 372 possible cases to law enforcement of double voting or voting on behalf of a dead person, out of about 14.6 million mail-in votes in the 2016 and 2018 general elections. That comes out to about 0.0025 percent of all ballots.
And because of this, Republican court challenges alleging voter fraud across the country have mostly failed. In one such court case, the lawyer for a class-action suit by Republicans against the state of Montana declared the need to produce such evidence “irrelevant.” The lack of fact-based evidence to support any such claim of voter fraud hasn’t stopped Trump from running with it. For months he and his supporters have reframed mail-in voting as “vote harvesting,” a phrase that implies that Democrats are fabricating votes that don’t exist.
Trump has been peddling this myth for most of 2020, as states expanded mail-in voting in response to the ongoing Covid-19 pandemic. In a May tweet, he effectively created a false conspiracy theory around the idea, claiming, “There is NO WAY (ZERO!) that Mail-In Ballots will be anything less than substantially fraudulent. Mail boxes will be robbed, ballots will be forged & even illegally printed out & fraudulently signed.”
The fact that Democratic lawmakers were spending a lot of time promoting mail in voting led Trump to build upon his false narrative by claiming the Democratic Party hoped to fraudulently manipulate the election results using mail-in ballots. And Trump paired this lie with an equally dangerous idea: That he should refuse to step down if he suspected such fraud had taken place.
In July, for example, Trump overtly implied that he would stay office if he lost an election that involved mail-in ballots, telling Fox News’s Chris Wallace he would “have to see” whether he would uphold the tradition of transferring power to the winner of the election.
TRUMP: "I think mail-in voting is going to rig the election."— Aaron Rupar (@atrupar) July 19, 2020
WALLACE: "Are you suggesting that you might not accept the results?"
TRUMP: "I have to see."
WALLACE: "Can you give a direct answer that you will accept the election?
TRUMP: "I have to see." pic.twitter.com/mPDPLY9vsr
He then repeated this in September. “We’re gonna have to see what happens,” Trump said, when a reporter asked him about transferring power to Democrats if he lost the election. “We want to get rid of the ballots, and we’ll have a very peaceful — there won’t be a transfer, frankly. There’ll be a continuation.”
The phrase “get rid of the ballots” was an apparent reference to not counting mail in ballots. And at the time, Trump was aggressively promoting a new wrinkle in the false narrative of a stolen election, by highlighting an incident in which nine mail-in military ballots were mistakenly discarded in Pennsylvania. The ballots, which included seven votes for Trump and two which were resealed and unknown, were mishandled by a local county contractor who was dismissed after the incident.
Trump claimed this was evidence of a conspiracy to fix the election for Biden. But as Vox’s Katelyn Burns noted at the time, the seven lost votes were only a small part of a larger issue: “President Donald Trump’s reelection campaign is looking less like a run for office and more like an operation to justify disputing the election result in the event Trump loses in November,” she wrote.
Trump seems to be preparing to repeat false or misleading claims about mail-in voting. Multiple anonymous sources told Axios that Trump’s election team has been planning for weeks to claim that this process of counting every vote was unnecessary and an attempt by Democrats to steal the election.
Jason Miller, a senior Trump campaign official, framed the legal counting of votes as just this on Sunday in an interview on ABC’s This Week: “If you speak with many smart Democrats, they believe that Trump will be ahead on election night, probably getting 280 electoral [votes], somewhere in that range, and then they’re gonna try to steal it back after the election.”
Here Miller is referencing a phenomenon and strategy that Vox’s Matt Yglesias has summed up:
Current polls show Biden leading in all six [swing] states. But his leads are narrower in the fast-counting states than in the slow-counting states, so if Trump does moderately better than polls currently suggest, he could win the fast-counting states on election night and wage battle in the courts to try to prevent the slow-counting ones from fully tallying their votes.
The irony there, as Yglesias noted, is that several swing states only have slow voting processes to begin with because their Republican-led state governments deliberately stymied efforts to create a faster counting process.
The bottom line is it’s false to say taking time to count ballots amounts to stealing an election. In every election, the counting of ballots extends past election night — and this year, counting may take even longer than usual: The pandemic has led to a massive surge in mail-in votes, which means that such a process could take weeks.
The election could well come down to a bunch of ironic legal challenges
Given the Trump campaign’s stated plans to issue legal challenges over vote counts — disputes that might impact the outcome of the election — Democrats are reportedly preparing to respond in kind.
Behind the scenes, according to a recent Politico report, Biden has been fundraising to mount a legal challenge over the election. And some of those funds have reportedly already been deployed to support voter protection programs in key states.
“Unless Joe Biden wins big ... those lawsuits will go on for perhaps a month,” lawyer Joe Cotchett reportedly told other lawyers on a conference call for Biden donors. “There are going to be individual lawsuits in each state, I guarantee you.” Another source told Politico that Biden’s fundraising team anticipated that the legal challenges over the election could last through Thanksgiving.
Fair or not, this is the situation. And there have already been previews of how contentious — and how consequential — these legal battles may be. In a recent decision, the Supreme Court ruled that mail-in votes in Pennsylvania, already the target of heated legal challenges on all sides this year, could go uncontested for now. But it also indicated that it might throw out specific votes in later challenges to come — a decision that sets the stage for just one of many expected court processes.
What does seem clear in the midst of all this uncertainty is that Trump’s refusal to say whether he’ll accept the election night results is anything but an arbitrary whim. Any statements he may have made about declaring an early victory would only be outgrowths of what he has long said. He may try to hang onto his title for as long as he can — even if it means a protracted, messy legal battle over the election results.