United States

Op-Ed: With delayed election tally likely, both sides gird for battle

President Donald Trump and former Vice President Joe Biden.

America is having a rough year.

Impeachment, the death of Kobe Bryant, wildfires in the West, tornadoes and floods elsewhere. And, of course, the pandemic, global recession and racial strife.

But things could always get worse, and seated behind the Resolute Desk, the president predicts that they just might.

“If they use mail-in ballots,” Trump told RealClearPolitics last week in an Oval Office interview, “this will be the most fraudulent and rigged election in the history of our country.” Here the president paused to make a distinction. There are absentee ballots, which he used to vote first in New York and later in Florida. He says those are “okay.” Then there are the other mail-in ballots, the ones that the president complains are sent out indiscriminately and without additional security.

“When you mail out millions of ballots,” he said, “and then think that you are going to get them back – honestly, you’re either very stupid, very naive, or you want the election to be a result, and you think that’s going to be the best way to get there.”

Few sitting presidents have raised alarms about the integrity of an upcoming election. It is not, however, a new gripe for this one; in fact, critics have long called it a favorite Trump conspiracy theory. But new circumstances have emerged: An electoral system strained by the coronavirus and then aggravated by partisan suspicions could trigger the capstone train wreck of 2020.

For now, a contested election remains a largely unspoken worry on Capitol Hill, but something else is more likely and would need to happen first. High-ranking Republican Sen. John Barrasso, among others, has explained that with more votes likely cast by mail because of COVID-19 restrictions, a delay in tallying the results is to be expected. Americans might have to wait a week or more after Nov. 3, depending on how the ballots get counted in various states, he said.

Experts in election law who spoke to RCP do not disagree. They just expect it could be worse. Think the 2000 Florida Recount worse.

In anticipation, legal armies are already digging in.

Veteran political operative Rachana Desai Martin leads that effort for Joe Biden and told RCP that the campaign has developed “an expansive voter protection program with the best lawyers in the country working to address every possible contingency and ensure that November’s elections go smoothly.”

The Trump campaign has its own contingency plans and its own legal teams. Officials promise to battle, if necessary, until the bitter end.

“Per the U.S. Constitution, the president’s current term ends at noon on Jan. 20, 2021. So, like we saw in Bush v. Gore,” a senior official told RCP, “any election results that are contested still have 2.5 months to get figured out.”

Figuring things out could be painless if trends hold and a wave election occurs, as some prognosticators assert. But if the results are slow coming in and the margins narrow, an already beleaguered nation could have a rough 79-day stretch ahead. And while Trump didn’t say how he would govern during that stretch, he may be prepping for it. When asked by RCP if he really thought mail-in ballots could cost him a second term, he responded, “Take a look at Paterson, New Jersey.”

An seen-better-times industrial city, Paterson is best known in popular culture as the place where boxer Rubin “Hurricane” Carter was wrongfully arrested in 1966 for a murder he didn’t commit. More than five decades later, it is ground zero for electoral fraud fears. In the recent City Council election, 16,747 vote-by-mail ballots were received. Only 13,557 were counted, with 3,190 cast out by the Board of Elections, meaning that nearly one in five was disqualified for various irregularities. Imagine and magnify that situation across multiple states, not just a single city, to get a sense of GOP nightmare scenarios.

Pre-pandemic, every voter was set to receive a mail-in ballot in four states (Colorado, Oregon, Utah and Washington). Post-pandemic, four others have opted to do the same: California for the general election; Nevada, New Jersey, and Wyoming for primary contests in June. At least another eight states have statutes governing the expansion of mail-in voting during an emergency while at least an additional 10 have laws on the books allowing state officials to make general changes to election laws, including the expansion of mail-in voting.

It’s the dizzying mosaic of federalism, a political patchwork determining that most basic function of democracy: voting. And now it is also a battleground. Both parties’ national committees are marching to war and into court. The RNC has filed suit in Pennsylvania (litigation is ongoing) and California (the suit was later dropped after the Legislature passed a mail-in ballot mandate). The bywords here are “ballot integrity” and “confidence in institutions.”

“Americans will not have confidence in our elections if we adopt Democrat election schemes,” RNC spokeswoman Liz Harrington told RCP. “Republicans are fighting to ensure voters have faith in the voting process by stopping Democrat attempts to legalize ballot harvesting and count ballots that arrive weeks after Election Day, which would inundate our system with fraud.”

The DNC has launched its own rebuttals, the stated hallmarks of which are “fairness” and “safety.”

“States should be working on ways to expand access to voting whether it be vote by mail or by ensuring safe in-person voting, and we will continue to work to ensure every single eligible voter can exercise their constitutional right to make their voice heard. Our goal is to ensure that all eligible voters can cast a ballot safely and every legal vote is counted,” DNC spokesman Chris Meagher told RCP.

Election experts say that, whether either party knows it, they are tiptoeing around Armageddon. Matthew Weil, the director of the elections project at the Bipartisan Policy Center, said that 2020, with all its uncertainties, could be tumbling toward a Florida-style 2000 recount – this time on steroids and across multiple states.

“That was just a single state that we were fighting in, and I do think there’s going be a lot more ground to fight over, which is going make it even a next-level challenge because I think we’re going to be close in a lot of states,” Weil told RCP. “Any one of them could be the tipping point.”

No one knows exactly what will happen during a delay. Litigation is likely as both sides snipe over counting rules. The previously witnessed “big blue shift” is almost inevitable. So says Edward Foley, the Ohio State University professor who first identified the phenomenon whereby a Republican leads in votes cast at polling places on Election Day, only to be surpassed when mail-in and absentee ballots are counted. Several GOP-held congressional districts in California witnessed such an occurrence during the 2018 midterms.

If there is a delay, Foley says things will work out in one of two ways, either as in 1916 or in 2000.

The first was a close election between Democratic incumbent Woodrow Wilson and Republican challenger Charles Evan Hughes. The fact is that Hughes led late on Election Night, and the possibly apocryphal story is that he went to bed confident in victory. A reporter called late, while California ballots were still being counted. He was told that “the president is asleep.” The reporter replied, according to legend, “When he wakes, tell him he isn’t the president.” What’s verifiably true is this: Wilson won the Golden State by 3,800 votes and another term as president. Despite the unavoidable delay, the system worked to determine a victor.

The second was the contested election between Al Gore and George W. Bush. The history there is voluminous and punctuated by debates about “hanging chads” – those bits of ballots that were not completely punched through. Enough paper was perforated incorrectly that the nation had to endure a recount. It lasted more than a month, and nobody knew who would be the president until the Supreme Court weighed in and effectively declared Bush the winner.

Gore accepted this gracefully, saying that the court had ruled, and gave up the fight. When Bush took the Oath of Office the following month, his motorcade to the White House was met with protesters’ signs that jeered, “Hail to the Thief.”

Bradley Blakeman knows a little about the chicanery that went into that legal victory. As a young lawyer working on the Bush campaign, he remembers how powers on high directed him to book a flight for Florida on Election Night. He did so. He also led the unauthorized and now infamous “Brooks Brothers Riot” that forced Miami-Dade County election officials to shut down their recount. His lesson for the new guard? Campaigns don’t stop.

“It’s a three-legged stool: You have a legal challenge, you have a PR responsibility to inform the public (in the way you want to inform them), and you have the actual apparatus of verification,” he told RCP in laying out the curriculum of what’s needed to fight for a presidential victory after all the votes are cast.

And, as controversial as all of that was, he regrets what he describes as the stupidity of the nation not having a uniform federal voting code. “People are gonna try and use this pandemic as an excuse to try to get an edge,” Blakeman said. “Same way they tried to use the recount in Florida to get an edge.”

All that anybody can agree on at this point is that everything is different. It is different because of the pandemic and because there will be more mail-in ballots and because Trump, with his Twitter account, is president. He might contest the results. He might not. He didn’t say, either way, in the Oval Office.

The only thing slightly safe to say at this point is that perhaps Americans shouldn’t bother staying up late on Election Night. They’ll need their energy to stay focused on the days – and possibly weeks – ahead.

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