As someone who has been raising alarms for months about the potentially calamitous consequences of Donald Trump’s attacks on voting by mail and the possibility that he’ll use an early Election Night lead to discredit the final results, I paid close attention to a Politico piece entitled “6 Reasons Not to Panic About the Election.” Penned by Michael Waldman and Wendy Weiser of the Brennan Center for Justice, one of the country’s main bulwarks of voting rights and fair elections, the op-ed seems designed to address the election-theft scenario laid out in most detail in Barton Gellman’s recent Atlantic essay that crystallized progressive fears about what Trump might be cooking up.
Some of the reassurances they offer make sense. Waldman and Weiser begin by reminding us that Trump doesn’t control the infrastructure of largely state-run elections, which means that his threats of vote-tampering and premature-victory claims may just represent his habitual taste for bluster and intimidation, compounded by his own ignorance of the many limitations on his power. It really is important to remember this is a president who once falsely summed up the section of the Constitution laying out executive powers, saying “I have an Article II, where I have the right to do whatever I want as president.” Trump may want to shut down voting by mail and prevent the tabulation of mail ballots after the election, but that doesn’t mean he has the power to do so.
I would respond, however, that Trump’s iron grip on his own party and the absolute faith the MAGA folk have in him (alongside their total disdain for anyone who stands in his way) give him more raw political power than the Constitution vouchsafes to him. That’s apparent in a specific area in which Waldman and Weiser offer reassurances:
Trump made clear in the debate that he wanted his supporters to go to polls to cause trouble for other voters. That’s against the law, federal and state. So is a purposeful attempt to prevent eligible Americans from voting — whether by public officials or private vigilantes. State and local officials have ample power to enforce the law. A federal criminal statute makes clear that “whoever intimidates, threatens, coerces, or attempts to intimidate” someone’s voting faces a year in prison. State and local laws are even stronger. And election administrators have processes to stop problems when they arise.
That’s all true. But sometimes there is a fine line between illegal voter intimidation and legal, if shady, “ballot security measures,” which Trump’s party is pursuing with great vigor now that a decades-long consent decree with a federal judge barring such practices nationwide has been lifted. And talking loudly about summoning armies of supporters to monitor voting in Democratic-leaning areas (as Trump and Donald Jr. have both been doing) can have an impact on turnout even if it’s a bluff.
Legal constraints may also, as Waldman and Weiser suggest, protect post-election vote-counting from overt interference:
Expect challenges, lawsuits and roaring news conferences. But election officials and courts are used to that, even if the volume is higher this year. The Constitution places a heavy thumb on the scale toward counting every vote, as do most state laws, if fairly read. And many of the most contentious counting issues — such as whether to count ballots mailed before but received after Election Day — are being resolved in preelection litigation. Attorney General William Barr may try to butt in, but there is no legitimate role for the Department of Justice during an election contest.
This does not, however, address the plans (discussed at some length by Gellman) of Trump campaign and local GOP officials to mount unprecedented vote-by-vote challenges to mail ballots. These efforts may be entirely within the law, but if conducted on a massive scale in key states, they could be highly disruptive to the vote-counting process, even if they fall short of triggering a formal shutdown.
In this and other areas, pulling a fast one requires a great deal of complicity from state and local (and, ultimately, congressional) Republicans. Legal safeguards against efforts to prevent a full and fair count of all ballots over weeks of tense partisan drama are only as effective as the public servants supposed to enforce them. And that’s true, even if and when the contest gets to the Electoral College and beyond. Waldman and Weiser argue that popular-vote determination of electors, the exclusive state executive-branch certification of winning electoral slates, and the process for counting electoral votes in Congress are matters that are cut and dried. Perhaps they are right. But that’s not what many years of raging debate in legal journals (stimulated by the near-total absence of judicial precedents) over each of these topics would suggest. And again, preventing partisan chicanery at the late stages of a contested election requires good faith by the representatives in all three branches of government of both political parties.
I’d feel much better if we were hearing a chorus of Republican elected officials and conservative opinion leaders sharply rebuking the president’s war on voting by mail and distancing themselves from any post-election effort to contest the results on the thoroughly rotten premise that a “blue shift” toward Joe Biden as mail ballots come in has to represent fraud and a “Democratic coup.”
Waldman and Weiser are most convincing in observing that, thanks to all the early alarms, a preemptive Election Night victory claim by Trump looks far less feasible than before:
Trump appears to be betting on the idea that only votes cast on Election Day should count. He assumes a “red mirage” or “blue shift,” when vote-by-mail ballots counted later pile up majorities for Democrats. Laws in those states that aren’t accustomed to widespread absentee voting make those scenarios more likely. In Pennsylvania and Wisconsin, for example, officials can’t start processing absentee ballots until after the polls close, and it’s increasingly likely that we will not know who won on election night.
But a recent poll showed that two-thirds of voters do not expect results on election night, making it harder for Trump to incite outrage over a wait. And there may not even be a long wait, as most states begin to process absentee ballots long before Election Day.
There’s also plenty of evidence that the media outlets that normally “call” elections are well aware of this year’s peculiarities in how votes are cast and when they will be reported. If Trump tries to announce himself as reelected even as every decision desk reports its models show that mail ballots will ultimately award the win to Biden, the idea that Democrats are out there stuffing ballot boxes in the days that follow won’t have much credibility.
At this point, the main reason for Trump critics to squelch their fears of a purloined election is Biden’s large and growing lead in the polls, which the president is helping him expand each day. Even if Biden doesn’t win by the kind of landslide that makes talk of a contested election ridiculous, he could win states on Election Night (e.g., Arizona, Florida, and Ohio, which should have quick mail-ballot counts) that could make the mail ballots drifting in later largely irrelevant.
In any event, Waldman and Weiser are right that no one should “panic” about the consummation of this unusual and consequential election. But until leaders in Trump’s own party become more outspoken in separating themselves from his lies and threats about voting by mail, some rational fear remains entirely healthy.
