President Trump has mused openly that he will challenge election results in court, and even that he’s likely to prevail over the will of the public if the Senate hurriedly confirms his last-minute Supreme Court nominee, Amy Coney Barrett.
Trump’s open flirtation with overturning the election and serving a second term at the behest of five right-wing Supreme Court justices has understandably invited his opponents to think through nightmare scenarios, where he somehow manages to pull this off. But even the most grim conjectures tend to miss a key ingredient Trump and his allies would need to carry out a scheme like this: a pretext, with a facially plausible legal basis, for throwing out not just handfuls of ballots but entire categories of them.
In a recent, alarming feature for The Atlantic, veteran investigative reporter Barton Gellman gamed out a scenario in which Trump and his GOP allies in battleground-state legislatures simply bypass the vote count altogether, and appoint pro-Trump electors as the Constitution empowers them to. But even Gellman imagined that these Trump loyalists would have to act on the basis of lies, and only in the context of a very close race. “With a justification based on claims of rampant fraud,” he wrote, “Trump would ask state legislators to set aside the popular vote and exercise their power to choose a slate of electors directly.”
It would be a huge leap, legally and politically, to discard all of the ballots in a state on the basis of a false claim, particularly when there’s no mystery as to which presidential candidate won the most votes. But less than two weeks before Election Day, a remote, but better-grounded threat has come to the attention of campaign watchers, including some at high levels of the Democratic Party. It’s a scenario in which Barrett and the four most conservative sitting justices align on decisions that make it impossible for states to finalize results in the first instance, placing any plans to throw the election to Trump-loyal GOP legislatures on firmer ground.
Most voting-rights supporters cheered this week’s 4-4 Supreme Court decision to shelve a GOP challenge to Pennsylvania’s extended absentee-ballot deadline. That decision leaves in place a state supreme court ruling that should allow Pennsylvania to count ballots that arrive by November 6, so long as they aren’t postmarked after Election Day. In reaching that determination, the state court overrode state law to vindicate the state-constitutional voting rights of Pennsylvanians, which have been threatened by pandemic conditions and intentional efforts to slow mail delivery.
But the fact that four sitting Supreme Court justices wanted to reach into Pennsylvania’s affairs and possibly overturn that state-court ruling troubled legal experts. They noted that the composition of the Court will soon change, and Barrett will likely side with the four most conservative justices on legal challenges Trump and the GOP might bring after the election—including to those late-arriving absentee ballots in Pennsylvania.
There should be an easy remedy to this problem: Vote early, make your ballot impossible to challenge. That’s wise advice voters everywhere should follow. But in Pennsylvania, some ballots will still inevitably arrive after Election Day, and the remote-but-terrifying risk is less that they’ll be discarded, than that the Supreme Court will declare them deficient after they’ve commingled with the larger pool of unchallenged votes. With no way to distinguish “valid” ballots from ones the Court has invalidated, the state Republicans who spoke to Gellman would have the real, actionable pretext they need to declare the election tainted, and seek to appoint electors who would loyally cast votes for Donald Trump. The missing piece will fall into place.
It is worth noting at this juncture that any scheme like this would meet legal resistance, and extraordinary political backlash. People would flood the streets. Democratic lawyers and voting-rights lawyers would argue that throwing out entire categories of votes would violate the rights of voters who relied on the rules as they were written at the time of the election. Election-law expert Rick Hasen likewise cautioned me that “once ballots have been commingled, it is extremely unlikely a court will do anything about it, particularly because parties know beforehand about this problem. So if you are the Trump campaign and you don’t want ballots arriving after election day without a legible postmark to be counted somewhere, you’ve generally got to go to court and ask for those ballots to be separated before they are counted so that the matter can be remedied if a court later agrees.”
“There are a lot of things that are worrying me about the upcoming election,” Hasen added, “but the particular scenario you raise with me isn’t at the top of my list.”
In other words, courts would have to be unabashed in their partisanship to help Trump pull this off. Lower courts, and ultimately the Supreme Court, would have to run roughshod over norms and the law to spoil ballots after they’ve already been stirred into the pot, and doing that would cashier whatever remains of their legitimacy in the public’s eye. But this is a problem we’ve seen with GOP-dominated courts in less high-profile cases over and over again: if they’re shameless enough, there’s nothing to stop them.
This concern about challenged ballots commingling with unchallenged ballots isn’t limited to Pennsylvania, and even raises the specter of Republicans engineering situations that allow them to circumvent vote counting: by kettling absentee voters into submitting ballots in ways and at times that leaves them vulnerable to legal challenges, waiting until those ballots have been commingled with the rest, and then declaring it impossible to determine the “legitimate” winner.
Last week, the general counsel to the Florida department of state issued guidance to election officials asserting that secure ballot drop boxes must be staffed by humans at all times. Scores of thousands of ballots have already passed through drop boxes that do not meet this criterion.
Slate legal writer Mark Joseph Stern noted that though this guidance lacks support in state law, it may nevertheless form the basis of a GOP legal challenge. “Presuming supervisors ignore McVay’s guidance, Florida’s largest counties will collect a huge number of absentee ballots in a manner deemed unlawful by the Department of State,” he writes. “If Joe Biden narrowly wins the state in November, Florida’s Republican-controlled government could argue that these ballots should be thrown out because they were cast through an illegal process. That claim could give rise to litigation that might allow the federal judiciary to call election results into question and invalidate ballots.”
As in Pennsylvania, though, the biggest risk may not be that Trump and the GOP will successfully challenge some ballots. It’s that those invalid ballots will have been irretrievably commingled with unchallenged ones. Republicans wouldn’t succeed in helping Trump throw out Democratic votes; they’d succeed in making a full count impossible.
No doubt at this juncture, Republicans would crow that they and Trump had warned states and cities against vastly expanding absentee voting. But their I-told-you-sos would be offered in bad faith. There would be nothing wrong with the challenged ballots other than the fact that Republicans believe invalidating them would help Trump hold on to power, one way or another. They would be justifying the theft of an election on the grounds that officials and judges didn’t foresee the death of Ruth Bader Ginsburg, and the confirmation of Amy Coney Barrett, when they set out to help citizens vote safely, away from crowds, as a deadly airborne virus plagues the nation.
Indeed the purpose of gaming out possible schemes like this, however unlikely they are to succeed, is to pre-empt them, so they don’t catch the public and the media unaware, and so they aren’t mistaken for anything other than naked and illegitimate efforts to steal an election.
Florida and Pennsylvania aren’t the only states that Trump may target for having commingled challenged and unchallenged ballots—but together they would be pivotal.
In theory, the state officials themselves could pre-empt this kind of chicanery—by segregating out ballots in states like Pennsylvania that are likely to be challenged, or by declaring that voters in states like Florida will not be punished for following the rules. And even after adverse Supreme Court rulings, the political and legal battles over which candidate is entitled to contested state electoral votes would continue, particularly in states with Democratic administrations, and Republican legislatures—including the key states of Pennsylvania, Michigan, Wisconsin, and North Carolina.
Spokespeople for the Pennsylvania and Florida secretaries of state did not respond to emailed questions before publication.
But ultimately the power to discredit Trump’s underlying premise—that partisan courts and free-agent electors, loyal to the president, should dictate the winner of the election—rests with engaged citizens. Trump and his supporters haven’t committed to any particular species of legal challenge, but they have stood squarely behind the idea that his allies on the court should say which votes count and which don’t, and that they should do so in a way that guarantees him a second term. It’s ultimately voters, spurred to action by their leaders, who have the power to reject this premise, by handing Trump a defeat outside the “margin of litigation,” and by preparing to march peacefully, day after day, if and when tries to disenfranchise them anyhow. The best way to help people do that is to alert them in advance to what Trump’s legal schemes might look like in practice, frame them before he can, so that he loses two key advantages: the power to misleadingly shape public perception, and the element of surprise.