This piece was originally published on the Election Law Blog.
Although things remain uncertain, it appears that Joe Biden could soon be declared by news organizations as the winner of the presidential race. This depends upon finishing the count in a number of key states including states where Trump is at the moment behind (Arizona, Nevada) and places where he is ahead (Georgia, Pennsylvania). On Thursday morning, Trump tweeted, “STOP THE COUNT,” which is not only inconsistent with what his team is pushing for in Arizona and Nevada; it would also lead to the race being called for Biden.
The inconsistent messaging is only part of the president’s problem. He and his supporters have been promoting baseless and dangerous conspiracy theories that Democratic elected officials are somehow “stealing” the vote when all they are doing is counting the ballots. Trump is doing exactly what many of us feared and warned about: using the fact that there is a “blue shift” in votes in some places as evidence of fraud. It is nonsense and the shift comes from the order in which ballots are processed. We saw a “red shift” as voting happened in Ohio on election night because of the order in which ballots were counted there. Nothing nefarious, but conspiracy theories proliferate, now being promoted heavily by Trump and his allies, leading to confrontations where election workers have been counting votes in Detroit and in Maricopa County.
None of Trump’s small bore lawsuits have been able to stop the count, and of course there is no basis to do so. These lawsuits are tinkering on the edges, claiming potentially minor infractions—nothing that would reverse any Electoral College win for Biden. In none of the states where counting is done so far is it even slightly likely that a recount would make a difference. Barring some evidence of systemic failure in the count in a state that is crucial for the Electoral College vote, the vote count as it ends is likely to reflect the final Electoral College results. (And this would be true too if Trump ekes out an Electoral College win and Biden looks for places to contest.)
Trump’s litigation strategy is not created to lead to a difference in results unless Pennsylvania is the decisive Electoral College state and the vote count is so close that the result would depend upon those segregated ballots arriving during the three days after Election Day. Indeed, one could imagine just as easily Trump being behind in Pennsylvania and wanting to have those ballots counted (and they should be counted, regardless of who is ahead or behind).
If Trump loses, he may grumble and the country may move on, or he can try to keep yelling fraud baselessly. If he does, it will be up to responsible voices in society, including Republican leaders, to tell him to accept defeat even if he will not formally concede. This is what happened when Matt Bevin lost the Kentucky governor’s race, yelling fraud on the way out but unable to convince Republicans in the state Legislature to take the vote count away from the voters.
But the viral, false claims of an election being stolen by Democrats would be used by Trump and his supporters to undermine a Biden presidency and to further undermine voter confidence among the Trump base in the legitimacy of the election process, something I have been warning about in Election Meltdown and elsewhere for some time. It is dangerous stuff to play with in a democracy, which depends upon losers accepting the results of an election as legitimate and agreeing to fight another day.
I have no doubt that if Biden loses, he will concede after exhausting any legal avenues for contesting the vote. I have less confidence Trump would do so if he loses. The question is how the country moves on if Trump continues to rail baselessly against the vote count.