Donald Trump Wants Judges to Throw the Election to Him. Buckle Up.

Trump is supercharging a vote-suppression strategy pioneered by Roger Stone decades ago. His legal stunts won’t work if Joe Biden resoundingly defeats him. But if the election is close, expect litigation until the bitter end.
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Long before Roger Stone was convicted, sentenced, and spared from prison for his many lies to Congress on behalf of Donald Trump, he built a name helping Republicans suppress the votes of their opponents by claiming, without evidence, that they were cheaters. In 1981, Stone led an effort in New Jersey to have armed vigilantes monitor polling locations in Black and Latino communities, all in the name of so-called ballot security and voter-fraud prevention. What was prevented instead was actual voting: The operation was so egregious, the Republican National Committee ended up getting sued in federal court and slapped with a consent decree that, for nearly 40 years, prohibited similar dirty tricks to intimidate voters.

The old is new again. No longer bound by judicial orders after a judge lifted the consent decree in 2018, Republicans are now free to resume poll-watching and much more, this time led by a ringmaster with a megaphone far louder than Stone’s: a president who’s loudly claiming, with no evidence, that the election will be rigged against him, and that the only way to unrig it is if he's declared the winner—or refuses to lose—no matter the cost to the nation. One advocate with Fair Fight, the voting-rights group formed by former Georgia gubernatorial candidate Stacy Abrams, has called this the “burn-it-down strategy.”

In Trump’s mind, burning it all down means many things. It means delegitimizing mail-in voting, which many states have expanded out of necessity during the COVID-19 pandemic. It means making baseless claims of widespread fraud, which undermines confidence in the process and may lead to people staying home. And it means signaling to goon squads that support Trump to watch the polls “very carefully” on November 3, as Trump suggested during his first debate with Joe Biden. Independent of the election results, the president has also raised doubts about the peaceful transfer of power and telegraphed that he’d declare himself the winner prematurely, which election officials are warning against but Trump allies are encouraging.

You know things are likely to get real bad on Election Day when Twitter and Facebook have to take affirmative steps to clamp down on misinformation about election results by politicians and regular users. Or when a single employee at Fox News, Trump’s favorite cheerleading squad, holds the keys to the decision desk that calls the winner once all the votes have been cast and tallied. Will this straight shooter—a paid consultant and registered Democrat who voted for Hillary in 2016—resist pressure, from the president or Sean Hannity, to not call a national race that may not be final until days or weeks after election night due to much higher than usual volume of voting by mail?

Trump’s pushing of this chaos theory to undermine the electoral process, if not the final tally itself, has only intensified as he has seen his poll numbers tank. And since he is the head of the federal government, the chaos theory now carries an official stamp. His Justice Department is in on it. The Department of Homeland Security is in on it. Even the U.S. Postal Service, which has historically stayed out of election-year politics, has been co-opted to confuse voters about voting by mail in states crucial to the November contest. In Colorado, a federal judge stopped the USPS sending postcards to every household in the state that contained information on voting by mail that contradicted state guidelines. A number of other states, both Democrat- and Republican-led, had to issue correctives to re-educate voters who may have been misled by the mailers.

Undergirding all this messaging by Trump and his acolytes is a small army of lawyers, state party officials, and elected leaders who are doing their darnedest to make it harder for people to vote. Because many states and localities have sensibly expanded vote-by-mail options during the pandemic, the backlash to those measures from party operatives has been in the courts. The opposite is also true: In places where state and local officials haven’t made it easier for people to vote while looking out for their health and safety, the response has been litigation to expand access to the franchise. According to the Stanford-MIT Healthy Elections Project, there have been some 300 cases in some 40-plus states challenging procedures, or lack thereof, adopted to deal with the reality of COVID-19, and the rulings and appeals are proceeding at a furious pace.

This week alone, in the span of 48 hours, three federal appeals courts with jurisdiction over key regions for the presidential contest issued rulings that, more or less, sided with Republicans. And as it happens, all three rulings were rendered by panels where Republican-appointed judges made it clear where they stood on these issues. In one Texas case, which was decided in favor of Governor Greg Abbott’s decision to offer only one ballot drop-off location for every county in the state, all three judges on the ruling were appointed by Trump himself. They didn’t hide the ball as to how they viewed the dispute. Abbott’s restriction was not a restriction at all, the judges wrote unanimously, and thus “abridges no one’s right to vote.” One judge on the panel, James Ho, freestyled a separate concurrence noting that the governor shouldn’t be in the business of modifying election rules at all. “So the Governor’s actions in this case should trouble you regardless of whether you agree or disagree with any of his actions as a policy matter,” he wrote.

In Wisconsin, a battleground where Trump is trailing Biden in the polls, the litigation has been no less fierce. Last week, the U.S. Court of Appeals for the Seventh Circuit, the same court where Trump’s Supreme Court nominee Amy Coney Barrett sits, reinstated a strict November 3 deadline for receipt of all mail-in ballots, despite efforts by a federal judge and the Wisconsin Elections Commission to extend that timeline by six days, so long as all ballots are postmarked on Election Day. In sobering terms, one dissenting judge, an appointee of George H. W. Bush at that, threw up her arms in dismay. “Today, in the midst of a pandemic and significantly slowed mail delivery, this court leaves voters to their own devices,” wrote U.S. Circuit Judge Ilana Rovner. “Good luck and G-d bless, Wisconsin. You are going to need it.”

The Supreme Court, for its part, has largely enabled this judicial abandonment of voters by erecting rules of election administration that, at least in theory, are meant to protect them from confusion at the polls. In the face of the coronavirus pandemic, the justices have extended this hands-off approach, largely deferring to whatever states decide to do, or not do, to facilitate voting. COVID-19, in the high court’s view, is just too “fraught with medical and scientific uncertainties,” and thus state officials’ discretion to change or not change the rules “must be especially broad,” wrote Justice Brett Kavanaugh in an opinion last week that largely sided with South Carolina’s call to leave unchanged a witness requirement for absentee ballots. “It follows that a State legislature’s decision either to keep or to make changes to election rules to address COVID–19 ordinarily should not be subject to second-guessing by an unelected federal judiciary, which lacks the background, competence, and expertise to assess public health and is not accountable to the people,” he added. (The Supreme Court is sitting on a high-stakes case from another battleground, Pennsylvania, that could be decided any minute.)

If there’s one cause for comfort in all these pandemic-related voting disputes, it is that judges have consistently ignored, if not wholly rejected, Trump’s evidence-free claims that voter fraud is rampant in states that have embraced vote by mail. In New Jersey, where I live, the Trump campaign and the Republican National Committee mounted a legal challenge to Governor Phil Murphy’s expansion of vote-by-mail to every registered voter, calling it “a recipe for disaster.” But the judge assigned the case didn’t bite. And in a twist, his decision rebuffing the lawsuit relied on the principle that siding with the campaign would only undermine confidence in the vote. “It is foreseeable,” the judge wrote, “that an injunction on the eve of the by-mail election could prompt confusion or distrust that voters opt to avoid the mail system altogether and cast provisional ballots in person.”

In a legal survey of this unending stream of election litigation, Joshua Douglas, an election-law expert at the University of Kentucky, wrote in a forthcoming paper that this double-edged sword of deference to states ultimately harms voting rights. Courts, in his view, should make state officials justify why they’re making changes that may disenfranchise voters, as when Abbott unilaterally decided to limit drop-box locations. “There are real consequences of a jurisprudence that fails to put states to the test to justify election rules that burden voters,” he wrote in the paper. “Fewer people may be able to participate in our democracy. Or they will have to jump through unnecessary hoops to effectuate that most precious right.”

The shenanigans, manmade or accidental, won’t stop. Just as this article was being published, Virginia authorities reported that “a network outage” on Tuesday, which also happened to be the deadline to register to vote in the state, caused the online voter-registration portal to go down. Funnily enough, that’s precisely what happened in another key state, Florida, which could lead reasonable but disaffected voters to throw up their hands and lament that the game is rigged against them. And in Texas, Republicans want to go even further to limit safe voting options in Democratic stronghold Harris County. The end game, much like Trump’s, is to get voters to give up trying and sit this one out. And if the vote is too close to call, even better for the prospect of calling it into question. In what remains of this election, judges would be wise to not add fuel to this dumpster fire.