Trump’s comments about the transition were only the latest instance where he’s actively sought to sow doubt into the legitimacy of the election. But beyond Trump’s rhetoric, his campaign and Republicans at the state and local level are moving to make it more difficult for voters to cast a ballot, more difficult for states to count votes and more likely that tallies will be challenged in the courts — with a particular focus on mail-in voting, which is being dramatically scaled up this year because of the coronavirus pandemic.
Those efforts, along with Trump’s repeated baseless claims that the election will be rigged, threaten to eat away at the public’s confidence in the outcome, regardless of whether Trump or former Vice President Joe Biden is declared the winner. They come amid a contentious fight over filling the Supreme Court seat left vacant by the death of Ruth Bader Ginsburg, in a situation where Trump could be picking the person who decides his electoral fate.
“I spent 38 years as a Republican lawyer going into precincts looking for evidence of fraud. There are, to be sure, isolated cases, but nothing like the widespread fraud that would somehow invalidate an election or cause anyone to doubt the peaceful transfer of power,” Ben Ginsberg, who helped litigate the 2000 election on George W. Bush’s behalf, told CNN’s John King on Thursday. “So what’s different about this is a president of the United States going right at one of the pillars of the democracy without the evidence that you have got to have to make that case.”
Trump has been falsely saying for months now that the influx of mail-in ballots as a result of the Covid-19 pandemic are ripe for fraud. He suggested last week that the results of the election may never be accurately determined. And he suggested that the Supreme Court would determine the outcome of the election — after his nominee is potentially seated.
The President went a step even further Wednesday when asked if he would accept a peaceful transition of power, saying, “Well, we’re going to have to see what happens.”
Republicans on Capitol Hill dismissed the notion that a peaceful transition won’t occur, but several embraced the idea that the courts would have to decide the election — an implicit suggestion that a dispute will arise questioning the results. Senate Judiciary Chairman Lindsey Graham, who is facing his own reelection fight while shepherding Trump’s Supreme Court nominee, said he would accept the election results from “the court’s decision.”
“We will accept the court’s decision, Republican and Democrat, I promise you as a Republican if the Supreme Court rules in favor of Joe Biden, I will accept that result,” Graham said in a “Fox and Friends” interview. “No matter who challenges the results to have election, eventually the Supreme Court is likely to hear that challenge and when they rule, that is — that is the end of it.”
Republicans have pointed to Hillary Clinton’s comments August comments that Biden should not concede under any circumstances if the election is close. But Biden has said he will accept the results once all the votes are counted. “Sure, the full results. Count every vote,” he told CNN’s Anderson Cooper at an outdoor town hall.
Republicans say the legal positions they are taking to stop efforts to expand mail-in voting are intended to safeguard existing election laws from being changed so close to Election Day. Democrats argue that access to voting needs to be expanded due to the pandemic, and they say they’re pushing back against efforts to suppress the vote.
Questioning and investigating the vote
But in several states, Republicans are taking steps that could make it more likely the election results are disputed, both through lawsuits and efforts that could slow down the absentee vote count or question its legitimacy. One state party official in Pennsylvania suggested the state legislature could determine who won the election, rather than the state’s popular vote, if the voting results took too long to be tabulated.
There are lawsuits across the country dealing with voting access issues, covering everything from mail-in ballots to dropboxes to how voters can fix absentee ballots that are missing information. Those cases are a prelude to potential legal challenges after election day.
The Republican state party called the settlement a “blatant abuse” following the resignations, and the Trump campaign lauded the resignations, saying the Democratic lawsuit that sparked the settlement was part of efforts “to rig this election.”
North Carolina Lt. Gov. Daniel Forest, a Republican, sent a letter to Attorney General William Barr on Thursday asking DOJ to investigate the agreement between the board and the attorney general.
And in Pennsylvania, the Justice Department announced Tuesday it is investigating issues with a small number of mail-in ballots. US Attorney David Freed said the inquiry found that nine “military ballots were discarded” and, in an unusual disclosure, said that “all nine ballots were cast for presidential candidate Donald Trump.”
But several hours later, the press release was taken down and then re-posted to correct that, in fact, only seven of the nine ballots had been cast for Trump. The other two were unknown.
A delayed, disputed count
Several states are currently mired in legislative fights over allowing elections officials to begin counting absentee ballots before Election Day. In Michigan, the Republican-controlled legislature still hasn’t allowed local officials to process absentee ballots before Election Day. The State Senate passed a bill that gives officials one extra day, but the legislation is stalled in the State House.
The problem of counting mail-in ballots is both a procedural and political one.
It’s a political problem because polls show far more Democrats than Republicans are planning to vote-by-mail. One of Democrats’ nightmare scenarios is that the Election Night results show Trump ahead, and when his lead evaporates as mail-in votes are counted he claims it’s a rigged election.
Trump has been laying the groundwork to make this argument already. “Because of the new and unprecedented massive amount of unsolicited ballots which will be sent to ‘voters’, or wherever, this year, the Nov 3rd Election result may NEVER BE ACCURATELY DETERMINED, which is what some want,” Trump tweeted earlier this month.
Trump has urged his supporters on Twitter to be poll watchers, which experts warn could lead to intimidation or even conflict on Election Day. Conservative groups and local Republicans are boosting the effort by seeking to sign up their members, too. In Pennsylvania, Facebook ads paid for by local Republican chapters send supporters to a Trump campaign website where they can sign up to be a poll watcher.
The potential for a delayed and contested vote count goes beyond just the public perception of a legitimate election — it has prompted some to consider state legislatures appointing electors to the electoral college, instead of a state going with the winner of the popular vote, in the event of a disputed vote.
The Pennsylvania state GOP said in a statement to CNN that The Atlantic article used the interview “to spin an out of context, pre-emptive farce that projects conspiracy.”
But a spokesman for Pennsylvania House Majority Leader Kerry Benninghoff said that the issue was being discussed due to the prospect of a delayed result.
“These questions are entirely hypothetical. The only reason we are engaging in this discussion at all is because the Pennsylvania Supreme Court last week issued a decision that injected chaos into Pennsylvania elections by ensuring we will not have election results on election night and casting serious questions about the integrity of the election process we will undertake in just a few weeks,” spokesman Jason Gottesman said in a statement.
Limiting dropboxes and ballot postage
In other states, Republicans pursued lawsuits and other efforts that, if successful, would make it more difficult for people to vote.
Democrats, too, have filed suits across the country. Their lawsuits include efforts that make it easier to “cure” absentee ballots that are missing information, such as in North Carolina, and to extend mail-in voting deadlines to count ballots that are postmarked on Election Day, even if elections officials receive them afterward.
Those efforts could also become the source of legal disputes after Election Day, with Republicans accusing Democrats of trying to flout election laws, particularly if a key state’s margin between Trump and Biden is razor thin and the campaigns are scrutinizing every ballot like the “hanging chads” of the 2000 Florida recount.
In that dispute, the Supreme Court ruled in Bush’s favor to stop the recount and Gore conceded the election. Trump predicted this year’s presidential contest will also wind up in the Supreme Court — though he gave no indication he would make the same concession as Gore if he lost.
“This scam that the Democrats are pulling — it’s a scam — this scam will be before the United States Supreme Court,” Trump said. “And I think having a 4-4 situation is not a good situation, if you get that.”
CNN’s Kristen Holmes, Pamela Brown, Sarah Westwood, Dianne Gallagher, Kelly Mena, and Pamela Kirkland contributed to this report.