The subtext to this is that Trump is losing. The race hasn’t tightened the way it did four years ago, in part because far fewer people hadn’t made up their minds about his time in office. If the election were held today and the polls were off to the exact same extent that they were on Nov. 8, 2016, former vice president Joe Biden would win more than 300 electoral votes.
In the states which won Trump the election in 2016 — Michigan, Pennsylvania and Wisconsin — Biden has increasingly been earning more than 50 percent of the vote in FiveThirtyEight’s polling averages. If that holds, Trump needs more than to persuade swing voters: He needs to pull support away from Biden.
Not that Trump has been trying to woo undecided voters. His strategy from the earliest days of his presidency was to maximize the number of his supporters who come out to vote, layering on efforts to tamp down on turnout among his opponents. His strategy has never been to build coalition of support that constitutes a majority of the country. It has been to fortify his support and hope that, as in 2016, it’s enough.
This year, though, he’s got another plan, one that overlaps with the focus on his base. He has overseen the confirmation of hundreds of new conservative judges, including three members of Supreme Court. And with time running out on winning support from voters, he has turned his attention to winning through the courts.
The plan, as we’ve documented repeatedly, is to claim that mail-in ballots are necessarily suspect as vectors for fraudulent voting. Then, when Election Day ends, to call for counting of those ballots to cease. Because more Democrats are likely to vote by mail than Republicans (according both to polls and returned ballots), the aim is to invalidate enough of those votes to carry close states.
When this first emerged as a plan this summer, it seemed probable that it was mostly a stopgap. Just in case, the Trump campaign could deploy an effort to hold wobbly states. Now, though, it seems to have become a primary focus of Trump’s attention. His odds of winning this year are substantially worse in FiveThirtyEight’s forecast of outcomes than they were four years ago. While such estimates should be considered in the proper context, the most likely outcome, if all votes are counted, is that Biden wins.
So Trump doesn’t want the votes counted. He makes allegations on Twitter like this:
As a claim that the election is rigged, this makes no sense at all. A postal worker threw mail (not just ballots!) in the garbage, and that’s a sign of a broad conspiracy against the president? With all due respect, it’s idiotic. There’s no evidence at all that mail-in voting is subject to anything more than errors and sporadic isolated efforts at voting illegally.
Trump keeps hyping these weird unrelated incidents — which end up not being anything close to fraud — just because he wants to create the space for his allies to challenge the results. His efforts (and decades of similar conservative arguments) have successfully convinced his supporters that mail ballots are subject to fraud, so they don’t blink when Republican legislators tweak the rules to limit the ability of voters to cast ballots early. The Republican Party broadly has publicly embraced the idea that it’s better to make it harder to vote than easier, using no rationale more robust than its own baseless claims about purported fraud.
The strategy likely depends on the acquiescence of the courts. In a number of states, state and federal judges have overruled efforts to limit vote-counting with several cases landing in front of the Supreme Court. Trump and his allies are very aware that their efforts to constrain voting may come down to the nation’s highest court; it was explicitly one of the reasons that Republicans rushed to confirm Amy Coney Barrett to the court.
Trump, using the clumsy bludgeon of his Twitter account, has repeatedly tried to pressure the court to adhere to his will. At 3 a.m. on Friday, he tweeted a complaint about how Biden would win only if “4 Justices (plus1)” made it possible. Within the constraints of his convoluted logic, this is true: If Biden wins more votes in enough states, it’s because the courts didn’t prevent that from happening.
At another point on Friday, Trump criticized a decision from the court while explicitly suggesting that vote-counting not extend past Nov. 3.
This, again, makes no sense. California polls close at 11 p.m. Eastern time. Are we giving them an hour to count all their votes? (Trump would no doubt like this idea.) It takes days or weeks to count every ballot, even when we know the outcome in a state. It always has. To suggest that allowing vote-counting past Nov. 3 is somehow suspect is both willfully ignorant of reality and obvious in its intent. It is as sloppy an approach to evaluating the will of the voters as claiming that a lazy letter carrier is evidence of a national anti-Trump conspiracy.
The underlying question, though, is: Will it work? Might the courts weigh in to block the counting of absentee ballots?
We’ve already seen some hints that, in some contexts, they will. Earlier this week, a majority of the Supreme Court threw out a federal judge’s order that Wisconsin count votes received after Election Day if postmarked on or before Nov. 3. Yet, as in Trump’s complaining tweet, it upheld a similar extension in North Carolina.
The difference, as The Post’s Robert Barnes explains, largely lies in where the extensions originated. Chief Justice John G. Roberts Jr. is willing to acquiesce to state-level decisions about how to handle vote-counting but balks at federal orders, as in Wisconsin. But Barrett’s addition to the bench might alter the calculus — as Trump clearly hopes it will.
This was a point also raised by University of California at Irvine’s Rick Hasen in a phone call with The Post. He echoed Barnes’s assessment of the decisions to date but wasn’t sure where post-election cases might go.
“I think it really depends on what the issue is and what the margin is,” he said, “and, you know, how much they care about their reputation in addition to the legal questions.” Roberts and Justice Brett M. Kavanaugh, he said, were probably more concerned about reputation than other conservative justices.
Hasen also suggested that North Carolina and Pennsylvania might be epicenters of post-election legal fights.
“They both have a constellation of Democratic-dominated state Supreme Courts and Republican legislatures,” he said. “You can imagine, in a post-election contest, a Democratic Supreme Court, say, easing the rules for the deadlines for doing some kind of recount and the state legislature not liking it and going to the Supreme Court and arguing we should be supreme.”
It’s important to remember that, so far, the legal disputes have centered on relatively fringe aspects of the vote: absentee ballots that arrive after Nov. 3 or theoretical recounts. We haven’t seen strong indications that the courts will heed calls to truncate the counting of ballots that obviously arrived on time. When Trump made just such a demand in Florida in 2018 (hoping to protect narrow Republican leads in Senate and gubernatorial races in the state), the ballots were counted anyway.
But it’s also important to recognize that Trump seems increasingly to believe that swaying the courts may be his best option for maintaining power. If the presidential election comes down to judges evaluating their reputations, Trump has — at least metaphorically — already won.