Jurisprudence

Trump Can’t Just “Declare Victory”

Trump, in profile, speaking at a mic during an outdoor rally at Dubuque Regional Airport in Dubuque, Iowa, on Sunday
What a would-be strongman looks like. Brendan Smialowski/Getty Images

Just count the damn votes.

We are nearing the end of a ridiculous pandemic-laden election season, where we may hit record turnout despite the most blatant attempt to suppress the vote in a generation. More than 90 million people have already voted, and we may reach a record turnout of over 150 million on Election Day. I am sure we would have exceeded that number by millions more votes if President Donald Trump and Republicans had not fought efforts around the country to make voting during the pandemic a little less onerous.

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And with Joe Biden ahead in the polls, the Trump end playbook has become increasingly clear: attack the counting of ballots after election night—even if they’ve arrived by Election Day—and prematurely declare victory if Trump is ahead—or possibly even close—in the early count. Indeed, Axios reported on Sunday that “President Trump has told confidants he’ll declare victory on Tuesday night if it looks like he’s ‘ahead,’ according to three sources familiar with his private comments.” This is largely in line with Republican lawsuits this election season, including a request over the weekend by Texas Republicans for a federal judge to throw out more than 100,000 ballots, which is likely to fail. Any such effort to continue this ploy after election night would be a disgusting attempted coup to try to stop the counting and manipulate public opinion, but the good news is it is also very unlikely to work.

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Let’s start with the counting of ballots. While there has been some dispute about whether state courts such as Pennsylvania’s and Minnesota’s had authority to extend the deadline for receipt of mail ballots that arrive after Election Day (a practice allowed in a fair number of states), there has never been any basis to claim that a ballot arriving on time cannot be counted if officials cannot finish their count on election night.

Indeed, such a claim is preposterous because no state fully counts their ballots on election night. Returns are unofficial and always contain errors. Many states allow military ballots to arrive for days after Election Day. Counting generally continues for days and weeks after Election Day, and results are not certified until weeks after. When it comes to the president, the presidential electors do not cast their official ballots until Dec. 14, and Congress does not count their votes until Jan. 6. This calendar leaves plenty of time to get the counting done.

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That’s what makes the Trump campaign efforts to cast doubts on even the counting of ballots after Election Day, even of military ballots, so unprecedented. As Slate’s Will Saletan noted, Trump adviser Jason Miller, speaking on ABC News’ This Week, signaled a legal battle against ballots not yet counted by Tuesday. “If you speak with many smart Democrats, they believe that President Trump will be ahead on election night,” Miller said. “And then they’re going to try to steal it back after the election.”

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Counting legitimate ballots is not stealing or flipping the election, and no amount of spin can make it otherwise. But this is part of a broader strategy of Trump, also signaled to Axios, to prematurely declare victory based upon partial vote totals. The New York Times reported that “Trump advisers said their best hope was if the president wins Ohio and Florida is too close to call early in the night, depriving Mr. Biden a swift victory and giving Mr. Trump the room to undermine the validity of uncounted mail-in ballots in the days after.”

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The reason this potential opening to prematurely declare victory exists is that more Democrats are voting by mail than Republicans, and in some key states like Pennsylvania, the gerrymandered Republican-controlled legislature has blocked the early processing of mail ballots before Election Day. This means that in some states the early vote count should favor Trump even if he loses by a lot of votes when all the votes are counted. According to calculations by FiveThirtyEight, we could be in a situation where Trump is ahead by as much as 16 points on election night in Pennsylvania, only to see a loss of 5 points or more when all the ballots are counted within about a week of the election: a 21-point swing.

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Trump’s blatant telegraphing of this strategy through leaks to Axios is a blessing in disguise. The public is now going to be hearing from the media about Trump’s plans over the next few days and learn more about why election night vote totals are not likely to reflect the final results if the election is close.

The strategy is not going to work. The networks and news organizations are prepared for this, and Americans have learned to discount anything the president says. Most are inoculated against his lies about voting. And assuming there are no major foul-ups in how the rest of Election Day voting goes, it is hard to imagine any legal strategy that will lead courts to order a halt to the counting of ballots that have arrived before Election Day (even if there could still be litigation over late-arriving ballots). So far, all of the Trump and Republican suits aimed at stopping the easing of voting rules during the pandemic on grounds of a risk of fraud have failed miserably, and any postelection attempt on these grounds should fail too.

The mantra for the next few days is: Count all the ballots arriving legally under state law. Ignore premature victory statements. Take a deep breath.

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