As President Donald Trump reflects on his sinking approval ratings and grows more desperate by the day, he’s been floating a dictator’s dream: postponing the November election. Even Senate Majority Leader Mitch McConnell and other Trump loyalists, including the Federalist Society co-founder Steven Calabresi, swiftly rejected this authoritarian fantasy. So Trump has retreated to a fallback position: casting doubt on the legitimacy of any election he doesn’t win. That starts by inventing fables about how voting by mail invites massive fraud and interminable delay—except, Trump now tells us, in Florida, where Trump’s elderly supporters will surely rely on it.
Trump’s attack on voting by mail has several fronts, but one is by far the most serious: his attempt to slow down mail service, perhaps in a targeted way, while also insisting that only ballots counted on November 3 are valid. In addition to casting doubt on the entire election, another purpose of this scheme is to engineer a scenario in which Trump can pressure Republican-controlled legislatures to ignore the popular vote in their Democratic-leaning swing state (think Michigan, Pennsylvania, and Wisconsin) and instead select an Electoral College slate that supports him. Trump’s attempt to cut short the counting of valid votes is flatly contrary to constitutional law and federal statutes. Even so, states can and should do more to protect American’s mailed-in votes. States should immediately enact new legislation or take other legal steps clarifying that they intend for Congress to honor electors they choose, and that they may need a bit of time to finalize choosing them—ideally doing so by December 23 and no later than January 6, 2021, when Congress meets in special session to certify the election results. Through state-level action, Trump’s efforts can be neutralized.
We can see glimmers of Trump’s approach in what he said about Florida’s tight 2018 gubernatorial and Senate races, and he’ll say it again to delegitimize the counting of mail-in ballots that might cost him reelection. We’ve received a frightening preview in the Census Bureau’s recent announcement that it plans to cut off population-counting efforts one month early, well before needed to meet the December 31 deadline for delivering census results to Congress.. This decision was made after the Trump administration itself had asked for more time, not less. It’s the same play: When Trump doesn’t like the numbers coming in, he stops counting.
Halting vote-counting after Election Day requires Trump to stage a three-pronged attack: slowing mail delivery, then urging Republican state legislatures to deem Election Day “failed” because of the many uncounted votes, and finally denouncing as illegitimate all vote-counting that continues after Election Day—even as slowly delivered mail-in ballots keep arriving. Leading the first step is Postmaster General Louis DeJoy, who’s reportedly shutting down post offices and slowing mail delivery under the guise of cost-cutting. Employees say that piles upon piles of letters and packages remain undelivered, stranded for weeks on end. These efforts undermine public confidence in the Postal Service and threaten to slow the distribution of blank ballots to voters and the return of completed ballots to state officials—with a likely disproportionate effect on Democratic-leaning urban voters, for whom the coronavirus’s circulation in cities makes mail-in voting particularly appealing. The likely surge in mail-in ballots that the pandemic will encourage suggests that tallying the election results won’t be completed on November 3 but will take days, possibly weeks, to complete accurately.
Trump will almost certainly use this delay as an opportunity to cast doubt on the whole election. He may even try to urge Republican-controlled legislatures in states that tend to vote blue but supported him in 2016 to deem Election Day “failed” given the uncounted votes, as well as pressure those legislatures to then exploit a federal law that allows them to come up with a new way to appoint presidential electors—such as handpicking a slate committed to Trump.
Trump may additionally think his hand is strengthened by another federal law that tells Congress to respect each state’s final resolution of ballot disputes if made by December 8. This date may well be too soon for all mail-in ballots to be counted when the pandemic is sure to increase the number of such ballots cast. But that provision is a mere “safe harbor”: It doesn’t require that states resolve ballot disputes by December 8. The only statutory deadline for a state to send its tally is December 23, and the only deadline for receiving a state’s tally—the true constitutional deadline—is January 6, when Congress meets in special session to certify the election results. So there’s no excuse for a state to call its election a failure or for Congress to disregard the results so long as they’re resolved ideally by December 23 but ultimately no later than January 6—not December 8.
Here’s why: Article II, Section 1 of the Constitution gives Congress the power to set the date for the states to “give their votes.” Congress chose the “first Monday after the second Wednesday in December,” which this year is December 14. However, Congress also provided a backup date, the “fourth Wednesday in December,” which this year is December 23. This is the day when the president of the Senate requests any state from which no certified vote has been received to send one “by the most expeditious method possible.” The law requires any such state to transmit its vote count by registered mail to the Senate president (or if the president is not present, the archivist). Insisting on December 8, rather than December 23, cuts short by nearly one-third the time available to make sure that every legitimate vote is counted—and it plays into the absurd claim Trump seems prepared to make: Because there might not be time to count all mail-in ballots this year, none should be counted.
In its infamous Bush v. Gore decision, the Supreme Court’s five-justice majority treated the early-December “safe harbor” date as a firm deadline for Florida to stop its recount—but only because of the majority’s view of Florida law. The Court pointed to language from Florida’s Supreme Court suggesting that the Florida legislature, by trying to meet the safe-harbor date, intended to sink all ballots that failed to be recounted by then. And the Florida legislature, to be fair, hadn’t made it as clear as it might that it had no such perverse intention.
States can and should act now to avoid Bush v. Gore treatment. Before November 3, they should pass new laws or enact new policies through their executive branch that make a commitment to democracy, regardless of political party (or seek definitive rulings from their highest court before that date). Such efforts wipe off the table Trump’s potential election-tampering tactics.
First, states should pass statutes making clear that vote-counting must be done not by December 8, but by January 6—and ideally by December 23, which still provides crucial additional time. This will ensure that a state legislature can’t claim voters “failed to make a choice” simply because vote-counting necessarily continued past Election Day, and that Congress can’t disregard results from states simply because they arrive after December 8, or after December 14, the statutory (but not constitutional) date set for the Electoral College to meet and to send vote counts to the Senate and archivist.
Second, states should adopt a postmark rule, whereby every ballot postmarked on or before November 3 is included in the tally. If the question isn’t whether ballots are received by November 3 but instead whether they’re sent by that date, a deliberately tardy Postal Service no longer poses the same threat. Of course, not all states may be able to accomplish this through legislation, but state courts may provide another promising path. One example is the set of voters in Minnesota who sued their secretary of state to challenge the state law that said absentee ballots would be counted only if received by 8 p.m. on Election Day. A Minnesota court approved a settlement with the voters that requires all absentee ballots to be postmarked on or before November 3 and arrive no more than seven days after Election Day to be counted. This decision indicates that any rule to count only ballots received by Election Day during this pandemic is an unlawful burden on voting rights, in violation of the equal-protection provisions of state constitutions and the U.S. Constitution.
Third, states should start the mail-in and early-voting processes well before November 3, and as soon as the candidates up and down the ballot are known. This will help states count the unprecedented wave of mail-in ballots they’re about to receive.
Fourth, states should invest in vote-by-mail infrastructure, such as what Colorado has in place, including dedicated drop boxes for ballots that bypass the postal system entirely. What’s more, states should urge loudly that federal money to help with this task be included in the next coronavirus-relief package.
And fifth, states should, in every way possible—including by litigation—erase any doubt that they mean to count every legitimate ballot, even if counting needs to continue not just until December 8 but until December 23 and, if necessary, until January 6. The difference could be between losing American democracy and saving it.
Trump thinks he has a trio of tricks up his sleeve for November: Slow the mail, rely on Republican state legislatures to deem Election Day a failure with so many votes still uncounted, and decry as illegitimate all vote-counting that persists past Election Day, and certainly past December 8. State legislatures and courts should act now to show just how futile this strategy would be for Trump. In so doing, they would be shoring up the electorate’s confidence in our voting system’s integrity, and would be reinforcing the foundations of a great democracy by reaffirming a simple principle: If we believe in one person, one vote, then every American’s lawfully cast vote should be counted.