Observers (including yours truly) have been fretting for months about the possibility of a premature Trump victory claim and then a contested election based on the likelihood that the votes counted by Election Night will skew heavily Republican. That seemed like a possible rationale for Trump’s incessant campaign to discredit voting by mail, which convinced many of his supporters to make plans to vote in person on Election Day. In many states, these votes will be counted and reported before mail ballots — which have to be opened, verified, and then tabulated — are added to the results. There are some states, moreover (notably peak battleground state Pennsylvania), where election officials are prohibited from doing anything with mail ballots until Election Day, and other states (including Pennsylvania) where mail ballots postmarked by November 3 but received later will ultimately be counted. All these factors make it likely that the vote totals for Trump and many other Republican candidates will look better on Election Night than in the final results.
The fear that Trump would take advantage of this situation to claim an early victory and then fight like hell to discourage the full counting of mail ballots became more serious over the final weekend after Axios reported that Trump “has told confidants” he’ll declare victory if he is ahead on Election Night:
That’s even if the Electoral College outcome still hinges on large numbers of uncounted votes in key states like Pennsylvania. Behind the scenes: Trump has privately talked through this scenario in some detail in the last few weeks, describing plans to walk up to a podium on election night and declare he has won.
For this to happen, his allies expect he would need to either win or have commanding leads in Ohio, Florida, North Carolina, Texas, Iowa, Arizona and Georgia. Why it matters: Trump’s team is preparing to falsely claim that mail-in ballots counted after Nov. 3 — a legitimate count expected to favor Democrats — are evidence of election fraud.
This report was consistent with Trump’s regular demonization of mail ballots and frequent assertions that the presidential results needed to be settled by Election Night and not a moment later. But it was still horrifying to learn he was actually making plans to step on the results and to try to declare himself reelected with many millions of entirely legitimate votes still out.
Unsurprisingly, Trump tried to squelch the reaction to this Axios report, which he called “false.” But he wasn’t at all reassuring in terms of his willingness to let mail ballots be counted, as this item from
the Hill attests:
President Trump on Sunday denied that he would declare premature victory in the election but signaled that Republicans would mount legal challenges to prevent ballots from being counted after Election Day.
“I think it’s a terrible thing when ballots can be collected after an election. I think it’s a terrible thing when people or states are allowed to tabulate ballots for a long period of time after the election is over because it can only lead to one thing,” Trump told reporters in Charlotte, N.C., criticizing decisions by the Supreme Court to allow ballots to be received after Election Day in several battleground states.
“We’re going to go in the night of — as soon as the election is over — we’re going in with our lawyers,” Trump said, mentioning the state of Pennsylvania specifically.
Now it’s bad enough that Trump is very clearly suggesting a postelection challenge of the validity of mail-in ballots postmarked by November 3 and received later, since 21 states and the District of Columbia are allowing this practice, some (e.g., California and Washington) because they always do and others as an accommodation to COVID-19-driven spikes in voting by mail (compounded by unreliable mail service). Those states include not just Pennsylvania but the additional battleground states of Iowa, Nevada, North Carolina, Ohio, and Virginia.
But the president’s remarks on Sunday also reiterate his frequent contention that mail-in ballots counted after Election Day are suspect. And that seems to be the basis for the scenario reported by Axios: a hard stop on vote counting after some arbitrary point when the president declares the legitimate election over — with any mail ballots subsequently tabulated representing a presumptive “Democrat” effort to overturn the results.
For some time now, reassuring voices have told us that if the president tries to pull off something like an Election Night victory declaration or simply a massive effort to stop or interfere with mail-ballot counting, the great big adults of the news media will slap him down by refusing to “call” the election for him and making it clear the mail ballots waiting to be counted are entirely legitimate. Going right to the heart of potential darkness, the New York Times profiled the Election Night decision-desk supervisor for Fox News, who has no problem asserting that the network will call ’em as they see ’em. But as I noted at the time, official network “calls” might not completely offset the impact of the Leader of the Free World claiming victory (or at least denying imminent defeat) to loud acclaim from his supporters, including those on TV:
The more likely scenario is an Election Night with Trump leading in multiple battleground states with perhaps a third to half of the total vote still uncounted. While the White House would lift heaven and earth to secure a major-network endorsement of an Election Night victory claim — thus neutralizing all the other news organizations’ determinations with we said/they said confusion — Trump’s Fox News friends could probably generate enough triumphalist noise to offset any sober pushback from the decision desk. And that would still set the stage for a Trump campaign effort to delegitimize or stop the counting of mail ballots later.
With Trump still refusing to acknowledge the legitimacy of voting by mail on the very eve of the election, this is a scenario that is far from paranoid.
But as the Axios report suggests, even Trump wouldn’t dare claim victory unless the facts on the ground give it minimal credibility. He needs to be ahead — or at least not the declared loser — in “Ohio, Florida, North Carolina, Texas, Iowa, Arizona, and Georgia.” According to the FiveThirtyEight polling averages, Biden leads, albeit narrowly, in Florida, North Carolina, Arizona, and Georgia. These are all states expected to count mail-in ballots quickly, which means Trump is unlikely to hold a lead in them late on Election Night unless he is truly doing well. So early network “calls” for Biden of any of these states Trump must win could puncture any illusion of Trump victory.
Pennsylvania is the other key element of any Trump Election Night chicanery. As Geoffrey Skelley recently explained, the combination of a state ban on pre–Election Day processing of mail ballots, an overwhelmed state- and local-election infrastructure, and a close Biden-Trump race makes the Keystone State the most likely ground on which the president could stake a premature claim to victory:
[W]e could be looking at a situation where Trump has about a 16-point lead [on Election Night], 58 percent to 42 percent, based on approximately 60 percent of the total expected vote. But over the course of the next few days — again, assuming the same pattern we observed in the primary — Biden would win two-thirds of the remaining votes, which would precipitate a 21-point shift in the overall margin from 3 a.m. on election night to the final result …
There are, however, some late indications that big urban/suburban Pennsylvania counties Biden is expected to carry overwhelmingly are kicking out the jams to start counting mail ballots rapidly on Election Day itself:
So that’s the turbulent landscape we face on the evening of November 3. If Trump leads in the national popular vote and has not yet lost in any of the close Sunbelt states or in Pennsylvania, then he may be tempted to implement his early victory-declaration threat. Yes, the official “callers” of elections would object strenuously, but unless they’ve already called the overall election for Biden (which they won’t do until states with a total of 270 electoral votes have been called in his favor), their “too early to call” and “too close to call” declarations may simply encourage the MAGA hordes to celebrate their champion’s self-proclaimed reelection. And then everybody goes to court.