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May posterity never forget the first time in history—November 4, 2020—when an American president admitted to a conspiracy to invalidate millions of lawfully cast ballots in order to retain the presidency.
Noting that the election had not yet been called in his favor despite his lead in several key states, Donald Trump made a televised statement from the White House:
Millions and millions of people voted for us tonight, and a very sad group of people is trying to disenfranchise that group of people and we won’t stand for it…This is a fraud on the American public…Frankly, we did win this election…This is a major fraud on this nation…We’ll be going to the U.S. Supreme Court. We want all voting to stop. We don’t want them to find any ballots at 4 o’clock in the morning and add them to the list…We will win this and as far as I’m concerned we already have won it.
This statement has now been viewed nearly 22 million times and it matches another one Trump made on Twitter over three months earlier, on July 31: “With Universal Mail-In Voting (not Absentee Voting, which is good), 2020 will be the most INACCURATE & FRAUDULENT Election in history.”
Trump has been testing this narrative at his campaign events. “The Democrats are also trying to rig the election by sending tens of millions of ballots using the China virus as the excuse for allowing people not to go to the polls,” he declared in Arizona in June. “This will be, in my opinion, the most corrupt election in the history of our country, and we cannot let this happen.”
Over the course of the past year, Trump has alleged that the election will be rigged nearly one hundred times.
Trump has left no doubt as to his motives in making these claims. As he confided in a TV interview on Fox & Friends during the early stages of the COVID pandemic, “if you ever agreed to it” – voting by mail – “you’d never have a Republican elected in this country again.”
So what did Trump do? First, he vowed to block funding for the U.S. Post Office: “Now they need that money in order to have the post office work, so it can take all of these millions and millions of ballots …. But if they don’t get those two items, that means you can’t have universal mail-in voting, because they’re not equipped to have it.”
Next, Trump tasked one of his largest campaign donors, Louis DeJoy, with undermining the election from within the post office itself, by delaying the delivery of mail-in ballots. As noted by the New York Daily News, DeJoy began by reducing mail deliveries, limiting overtime, changing hiring policies and dismantling mail sorting machines. As noted by U.S. District Judge Emmet Sullivan, DeJoy finished by violating a court order to search mail-processing facilities for undelivered ballots by 3 p.m. on election day.
Because the President doesn’t have the power to determine if mail-in voting will be permitted (that is a matter that the Constitution leaves to each state to decide), Trump had to come up with plan to swing the Pandemic Election his way. The gravity of the Covid-19 crisis caused a reasonable fear of serious illness or death for those who would have to endure long lines and brave crowded auditoriums in order to cast their votes in person. Given such compelling public health concerns, 35 states and Washington DC changed their voting rules to facilitate mail-in voting.
Justifiably relying on these rules and procedures, over 100 million Americans cast their ballots this year either early, or by mail. That’s well over 70% of the total number of ballots cast in 2016 and 200% the total number of mail-in ballots cast that same year.
Total voter participation is currently estimated to reach a one hundred year high of over 65% — good news for a democracy, one might assume.
But not for Trump and his Republican supporters. In some key swing states – notably Pennsylvania, where the legislature is Republican and the Governor and Attorney General are Democrats – the law prevents mail-in ballots and early votes from being counted before election day, as has happened in other states, such as Florida. As a result, in Pennsylvania, election officials knew they would be overwhelmed by the volume of mail-in votes. This is one reason the Supreme Court provisionally allowed the state three extra days to counts all the ballots.
To summarize the full context: Trump recklessly allowed COVID-19 to spread, downplayed its seriousness, and encouraged his supporters to vote in person and by mail. Discouraging the use of masks and the practice of social distancing, Trump turned rudimentary conservative notions of personal freedom into suicidal notions of personal and public endangerment. In March he announced that he would attempt to suppress mail-in votes, understanding full well that such votes would favor his Democratic opponent. In states where Trump’s supporters were unable to prevent mail-in voting because of the pandemic, the Republicans tried to limit the length of time officials would be given to count mail-in ballots. Then, with the polls closed, Trump himself tried to undermine the outcome of an election as determined by a full count of all lawfully cast ballots.
In short, Trump and his Republican supporters are attempting a kind of coup d’état, orchestrated, counter-intuitively, by a sitting president. Trump’s dramatic televised statement on November 4–a coup de théâtre–was intended to trigger the final and most uncertain part of the plan: getting the Supreme Court to intervene.
Here’s what Trump told reporters at a White House event back on September 23, five days after Justice Ruth Bader Ginsburg died: “With the unsolicited millions of ballots that they’re sending, it’s a scam; it’s a hoax…it’s a scam, this scam will be before the United States Supreme Court…I think having a 4-4 situation is not a good situation, if you get that.” One week later, Trump said this about the Court: “I’m counting on them to look at the ballots, definitely.”
Justice Kavanaugh has since given Trump the reasoning he desires. In his concurring opinion in Democratic National Committee v. Wisconsin State Legislature, Kavanaugh wrote that States “want to be able to definitively announce the results of the election on election night, or as soon as possible thereafter.”
“Moreover,” Kavanaugh continued, “in a presidential election, counting all the votes quickly can help the state promptly resolve any disputes, address any need for recounts, and begin the process of canvassing and certifying the election results in an expeditious manner.” Kavanaugh added that states have an interest in avoiding “the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election.” Justice Kagan rightly replied “there are no results to ‘flip’ until all valid votes are counted.” But what remains to be said is that the chaos and suspicions of impropriety are of Trump’s own making – and likely intended to produce the exact outcome that Kavanaugh would reach.
It’s not yet clear if Trump’s audacious gambit will succeed. It depends on three things: whether state election officials dutifully count all mail-in ballots that were cast in accordance with the rules in effect at the time; whether state legislators or judges intervene on Trump’s behalf; and whether the Supreme Court intervenes on Trump’s behalf.
And who knows? Perhaps the surprise heroes in this plot will be Chief Justice Roberts and the new Justice, Amy Coney Barrett. After all, nothing would cement her legitimacy more than voting to grant cert. and then ruling against Trump on this matter, not only on the grounds that there is no evidence of fraud but on the grounds (and this might be dicta, mind you) that Trump appears to have conspired—over many months—to rig the election.
Time will soon tell whether Trump will be held accountable for voter suppression, abuse of power, and conspiracy to rig the election or, instead, rewarded with a second term in the White House. There is also a third option, however, which is that Trump will lose the electoral vote, nobody will intervene on his behalf, and his conspiracy to rig the election will be dismissed as mere theatre, bad sportsmanship, and posturing—typical Trump.
That option must be resisted every bit as much as election rigging itself. Trump’s false claims are continuing to embolden militia groups and conspiracy theorists. The United States is becoming even more fractured, and the dangers of violence are growing by the minute. When a sitting president abuses his power to corrupt the Post Office and suppress the vote, broadcasts false and misleading speech, and attempts to rig an election, it is not enough for him to simply lose power.
Trump must be held accountable under the law.
Timothy Kuhner is Associate Professor of Law at The University of Auckland and the author of Tyranny of Greed (Stanford University Press 2020).