It is the late evening of Nov. 3, 2020—Election Day. The race is tight. It’s come down to the three states that President Donald Trump barely won in 2016: Michigan, Pennsylvania, and Wisconsin. Most in-person votes have been counted, and Trump holds a small lead in each state. But there are millions of mail-in ballots that election officials have not yet processed. Hundreds of thousands of voters dropped their ballots in the mail days ago, but they haven’t been received. Meanwhile, thousands of ballots that were mailed in time have been rejected due to alleged technical defects. The outcome of the election turns on all these outstanding votes. But Trump, on the basis of the results so far, declares victory and dismisses the remaining mail-in ballots as fraudulent and illegitimate. The Republican-controlled legislatures of all three states agree, assigning their electoral votes to the president. Trump has secured a second term in the White House.
This scenario is not paranoid or outlandish. It is now chillingly plausible. Trump has spent several months laying the groundwork to steal the 2020 election this way. He has tweeted that mail-in voting will make this “the most INACCURATE & FRAUDULENT Election in history.” Trump probably senses the vote count will not be completed on Election Day and seems to be seeding doubt before a single vote is cast. The Republican Party has largely backed the presidents’ schemes, and the courts have resisted intervening to protect voting rights. Three months out from Election Day, the nation appears to be barreling toward a crisis of Trump’s own design.
The United States has never held a presidential election during a nationwide pandemic. Polls present an obvious risk for COVID-19 infection: They require many people, including seniors, to congregate indoors, where the likelihood of transmission is highest. If lawmakers valued democracy over partisan gain, the country could undoubtedly meet this novel challenge. States can avoid this problem by letting everybody vote by mail, and by allowing multiple weeks of early voting at the polls. By spreading out the in-person vote over a few weeks, states can prevent too many people from gathering together at once.
Democrats have almost universally endorsed these measures, particularly universal vote by mail, which presents zero risk of COVID-19 infection. Republican politicians increasingly oppose vote by mail, though it remains popular with many GOP voters. This partisan divide is a fairly new phenomenon: Many red states have adopted no-excuse absentee voting, which allows anybody to mail in their ballot. Every swing state has this policy, as well. Trump can disparage vote by mail all he wants. But thanks to the Electoral College, every American whose vote actually matters already has the option to vote absentee.
But will their votes count? Here is where both Trump and Republican lawmakers still have leverage. Vote by mail rests on the presumption that the U.S. Postal Service can deliver ballots to election officials promptly. Yet Trump is now sabotaging the USPS just when Americans need it most. On Thursday, the Washington Post published an explosive exposé about a catastrophe currently unfolding at the agency. The newly appointed postmaster general, Louis DeJoy, is a top Trump donor and fundraiser with absolutely no prior experience at the Postal Service. He has imposed strict measures ostensibly meant to cut costs. While carriers previously made multiple trips to ensure the day’s mail is delivered, they are now required to leave mail behind instead of working overtime. Carriers must also shut down mail sorting machines earlier than before, forcing them to sort more mail by hand, an error-prone process. DeJoy’s policies have, predictably, begun to delay mail by several days.
These delays will make all the difference in November. USPS, like most states, is not remotely prepared for the flood of mail-in ballots just around the corner. Around the country, there has been a tidal wave of absentee ballot requests, a historic surge that has already begun to overwhelm election officials. Yet Republican legislators in many states refuse to provide the necessary funds, resources, and personnel to handle all these ballots. During Wisconsin’s April election, we saw what happens when a state underestimates the demand for mail-in ballots: Election officials just can’t process them in time. At least 9,000 voters never received their requested absentee ballots, and an unknown number—probably many more—got their ballots too late to mail them back in time.
Add Postal Service delays to the mix and you have a recipe for an election meltdown. As the Washington Post’s Greg Sargent has pointed out, every swing state except North Carolina counts only those mail-in ballots received by Election Day. If a ballot is postmarked by Election Day but delivered late, these states will not count them. Democratic election lawyer Marc Elias has filed lawsuits challenging this practice. But the U.S. Supreme Court’s five conservative justices made it clear that they do not think states are obligated to count late ballots postmarked by Election Day—even if the ballots were delayed by forces beyond a voter’s control. Elias has turned to state Supreme Courts for relief, but he has not yet had much luck. Indeed, by a 4–3 vote last Friday, the Michigan Supreme Court declined to hear a challenge to the nullification of late ballots with a timely postmark. Its decision effectively ensures that the policy will stay in force through November.
Even those voters who do return their absentee ballots by Election Day are not out of the woods. Most states verify these ballots through a process called “signature mismatch”: Election officials compare the signature on the ballot to the signature on file to see if they match. These officials typically have little or no training in handwriting analysis—but even if they did, the procedure would be useless: Forensic document examiners have testified that even an expert requires at least 10 signature samples to account for normal variations. Election officials have two. This method is discriminatory, too: Voters who are disabled, young, elderly, or non-native English speakers are disproportionately disenfranchised by signature mismatch laws.
Swing states have a hodgepodge of laws that, in theory, let voters “cure” a ballot that was voided because of a signature mismatch. Few voters navigate these rules successfully, and they are often implemented differently from county to county. In Pennsylvania and Michigan, for instance, officials are not required to notify voters that their ballots have been tossed out. In Wisconsin, voters do receive notice—but they must provide a new signature by the close of polls on Election Day. (Other states give voters two weeks after the election to cure their ballots.) By the time Wisconsin voters learn their ballot has been rejected due to signature mismatch, it will likely be too late for them to cure it.
All these complications work to Trump’s advantage, which is presumably why Republican legislators refuse to address them. Thanks in no small part to Trump’s endless demonization of mail-in ballots, there is a sharp partisan split on the issue: Far more Democrats than Republicans plan to vote by mail in November. So a majority of rejected absentee ballots will probably contain votes for Democrats, including Joe Biden. Moreover, these ballots are frequently counted after the in-person vote; in Michigan, officials cannot even open them until Election Day. (Republican legislators have rebuffed Michigan Secretary of State Jocelyn Benson’s pleas to change this pointless law.) If the in-person vote is disproportionately Republican, then Election Day returns could show Trump ahead in the key swing states. At that point, he can declare victory and proclaim the uncounted ballots are fraudulent. He has previewed this tactic for months now and openly cast doubt on the legitimacy of mailed ballots.
Trump, of course, cannot single-handedly halt the vote count in every swing state. But he might not need to. Although every state now holds popular elections for the president, the Constitution grants state legislatures the power to appoint electors. The legislatures of Michigan, Pennsylvania, and Wisconsin are all controlled by Republicans. These bodies could quickly pass resolutions declaring Trump the victor, then appoint electors who will cast their votes for him. This gambit has never been tested in court, but it is possible to imagine the Supreme Court’s conservatives permitting it as a valid exercise of state legislatures’ constitutional authority.
There are steps Democrats can take right now to combat these schemes, beginning with a non-negotiable demand for sufficient USPS funding. Trump and his allies, however, have already laid the landmines, and the judiciary appears unwilling to defuse them. The odds were already stacked against Biden, who must win the popular vote by several points in order to secure the Electoral College. But now he may have to win in a landslide to wrestle the presidency from Trump.
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