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| Photo credit: Gage Skidmore, Flickr. License. |
The results of Tuesday's election may be far from certain, and it's likely that the full counting will take a while given the massive amounts of mail-in and early votes this year, but it is clear that Donald Trump, his campaign, and his supporters believe that he is going to lose. Trump supporters have been blocking bridges and roads, trying to run Biden's campaign bus off the road, and challenging 120,000 properly and legally cast ballots in Texas, a state Trump won in 2016 by over 800,000 votes. These are not the moves of a campaign confident of victory.
In another such move, Donald Trump has been looking for ways to block the counting of votes on a massive scale from election night onward. Trump's team plans to argue basically that any votes not counted on election day is invalid and should be thrown out. The argument is of course outlandish and thoroughly without merit, given that fact that every state in every election counts ballots for days, if not weeks, after election day. The election night "calls" from media stations are merely projections their statisticians make based on actual votes counted, where the votes are coming from and what the exit polls say. They often have high predictive value, but they are not, in actuality, official election results.
And yet, that is the course the TV president wants to pursue. In North Carolina today, Trump made his intentions clear that his army of lawyers plan on launching bogus challenges early and often.
President Trump before getting on stage in NC laid out his election legal strategy: flood the zone with lawsuits in places like PA and NV on election night.
— Yamiche Alcindor (@Yamiche) November 2, 2020
He said, “We're gonna go in, the night of, as soon as that election's over, we're going in with our lawyers.”
The challenges are not likely to succeed, especially given the clear signal from the Supreme Court in the few cases it has reviewed pre-election. While archconservatives on the Court want the Supreme Court to declare Trump the winner, the majority has created a consistent, and what I believe is reliable, rule: ballot deadlines are up to the states. The Roberts Court has made clear, to the dismay of liberals, that the justices will not force a state to extend the deadline on receiving absentee ballots, but just as critically, they have so far refused to stop a state from doing so through its normal channels. And in any event, Trump appears to be gearing up to challenge the counting of ballots after election day, even if the ballots are received on election day, which, again, even a highly partisan, conservative Supreme Court will not entertain.
So what's this about? Is Trump's team just waging war just to cast doubts and delegitimize the election?
Possibly.
But that's not the entirety of it. There's a part that is not being said out loud: Trump and Republicans' real plan is to use these frivolous suits to slow down the counting of ballots until reporting and certification deadlines.
Every state has a canvassing deadline, a date certain by which local election officials must report their vote totals to the state's top election officer, usually the Secretary of State, and a certification deadline, by which the top election official has to certify the results. For some states, these deadlines are within a week from the election, for others, a bit longer. Pennsylvania, for example, has a canvassing deadline of November 11, while Texas can take as late as December 3.
From what I can glean, Donald Trump's legal team's real plan is to run out the clock on the canvassing and certification deadlines. Even if they lose their preposterous challenges to the counting of votes, as they are likely to, they hope to slow down the counting and then argue that, oops, it's too late to count them now!
Should this concern us? Yes. But this strategy too is unlikely to pay off. We don't count votes - even paper ballots - with an abacus anymore; there are machines for that. In addition, the people counting the ballots will not be the same people arguing in court, so the counting can continue, at best with late-arriving ballots segregated. Plus, a whole lot of these states, including Pennsylvania, have Democratic Attorneys General who will fight and win the cases in Court. And lastly, the Biden campaign too has amassed a formidable legal army who will be able to fan out across the country just as quickly as Trump's team.
Most importantly, we have seen again and again that whenever the Republicans openly threaten people's right to vote, more and more people from disenfranchised communities turn out and make sure their votes are counted.
Let this time be no different.