A Media Guide For Free And Fair Election Reporting

This commentary is part of The Appeal’s collection of opinion and analysis.

Allowing President Donald Trump to preemptively claim victory with a national media platform will undermine the democratic process and increase the chance of subversion of the vote. 

Before all the votes have been counted in this year’s 2020 presidential election, it is likely that Trump will claim to have won on November 3. Barton Gellman, staff writer for The Atlantic, recently laid out an entirely plausible scenario in which Trump challenges the validity of the unprecedented number of mail-in ballots, and persuades state legislatures to overrule them, imposing an undemocratic result. Such a situation is possible due — in part — to the unending onslaught of uncertainty, confusion and chaos created by Trump and his allies in the media. 

The Transition Integrity Project, when conducting simulations as to whether President Trump can steal the election, found that there was one single narrative that would ensure he stays in office for another four years: making the American people believe he won, regardless of whether or not he actually did. This places the media as one of the key safeguards against this narrative taking hold.

The Trump strategy to steal the election by either interfering with the tally directly or getting states to send a fraudulent slate of electors to Congress has emerged over the past several months with three main components: suppress the vote, create and amplify a false victory narrative, and file a bevy of lawsuits through courts he has stacked to slow down the counting process and to throw out tens, if not hundreds, of thousands of legitimate ballots. Trump will likely try to manipulate electoral college laws and rules in his favor. 

The media, more than ever, has an important role in preserving our democracy during this election season. The more that members of the media expose false, misleading, or manipulative claims for what they are, the less likely it is for Americans to fall for Trump’s insidious tactics on and after Election Day. Here are some ways the media can help in this effort:

It is unlikely we will know the results of the presidential election on election night, and the media should refrain from giving credence to claims of victory when it is still statistically possible, or even likely, that another candidate won.

President Trump knows that if he breeds chaos, stokes violence, asks for enough recounts, and initiates litigation to stop counting, then he can claim he is the legitimate winner. He will strategically be spending time on traditionally blue counties and cities (which he calls “anarchist cities”), claiming fraud with mail-in ballots which sway Democratic, and asking for recounts in Democratic counties. For example, in Pennsylvania a recount is triggered if any three voters in any county request one. 

If Trump is successful, on the final deadline for tallying the vote December 14th, Democratic counties, particularly those in swing states, will not have been able to count or certify all of their votes, giving an advantage to traditionally red districts in the state. If by December 14th some states have not counted all of their ballots, then the legislature of that state gets to decide which slate of electors to send. If they can’t agree, then per federal statute the governor gets to choose to send to Congress. At the same time, electors in any given state can also vote to send themselves–so essentially one state could have a slate of Republican and Democratic electors. 

More than 28 million ballots have already been requested and another 43 million are set to be automatically mailed to voters. In many key states requests from registered Democrats far outpace those from Republicans. This means that it is very possible that the numbers of votes counted on election night could put Trump in the lead with a “red mirage.” Trump is likely to create a false narrative of victory before the mail-in ballots are counted on November 3rd or shortly after. In fact, he’s already convinced his supporters that victory is inevitable. This kind of November 3rd breaking-news victory narrative before all votes have been counted is likely to be seized upon by his allies and supporters — and even Fox News — and amplified until it sounds like the truth. If the media claims Trump as the victor in any state when a significant number of mail-in ballots have not been counted, they will be complicit in helping an illegitimate election. 

The media has an obligation to communicate to the public that we likely will not know the results of the election on election night. The media has an obligation to announce the winner of the presidential election only if 1) all in-person and mail-in ballots have been counted and neither party has attempted to stop or derail the count; or 2) the remaining mail-in ballots yet to be counted could not make a difference in the outcome.

The media should avoid amplifying fraudulent claims of voter suppression and errors with mail-in ballots to avoid giving credibility to false fears that the election is somehow “rigged.” This likely means refusing to report on these baseless claims.

President Trump’s false claims of voter fraud are being used to disenfranchise Americans with the hope that the public will not trust the results if they show Democratic presidential nominee Joe Biden leading on election day, or if counting ballots results in a shift in the results which favors Biden. In short, Trump will claim that any result other than a Trump win is fraudulent, and giving him a platform to make these claims is harmful to the democratic process.

The way it works is predictable: Trump or his allies find an unsubstantiated story about voter fraud and then it is amplified endlessly on social media as well as through news sites. The effort takes its most prominent form in the President’s own public statements, which relentlessly promote the false notion that voter fraud is rampant. Much of it this year has taken the form of a false narrative about mail-in ballots being unreliable. In September, Trump tweeted: “Sending out 80 MILLION BALLOTS to people who aren’t even asking for a Ballot is unfair and a total fraud in the making. Look at what’s going on right now!” 

In truth, voter fraud is almost nonexistent, with research finding fraud in only .0025% of cases. Notably, the cases of fraud that reach the newspapers do so because they are cases where a fraud was attempted and averted, demonstrating that our electoral safeguards are working well.

Republican leaders have also successfully suppressed the vote by creating strict voter ID laws, purging voters off the rolls, passing “exact match” voting laws, encouraging voter intimidation, closing polling places, engaging in digital voter suppression targeted at Black voters, and creating long wait times at predominately Black precincts. Much as they have in other contexts, conservative lawmakers have weaponized bureaucracy to overcome dissent.

Trump’s narrative of “anything other than me winning in a landslide means the election was rigged” is itself a form of voter suppression, by spreading misinformation and brewing distrust and uncertainty in the voting process en masse. Never in our history have we seen a sitting president and contender for the White House so vehemently communicate to the American people that our democratic process is rigged unless they win and imply that their votes don’t matter. After Election Day in 2016, a race which Trump ultimately won, the president still spread disinformation about voting to counter the news that he lost the popular vote. He claimed that three million undocumented people illegally voted, a statement completely unsubstantiated and, disturbingly, blamed on a vulnerable group. We can only imagine what he will do or say in this race that he may lose or will remain contested for days or weeks.

The poll workers and people working for local boards of elections need the media to support their efforts to ensure every vote is counted. Counting will not be fast or simple, but without the media’s support in exposing those actively working to suppress the count and silence the people, their work could be in vain. They need the media’s help to convey to voters that not only is our voting system is secure, but that the folks working at boards of elections and the polls are doing honest work. We need institutions to call this intentional spreading of lies what it is: voter suppression. 

Republicans — and Trump — have stacked the courts in their favor. The media is obligated to give an accurate report on litigation, both on the merits of the claims and the history of the bench. 

In December, President Trump had appointed 218 Article III federal judges out of the 794 serving on the bench — 28% of the total. This is an extraordinary influence over our country’s federal judiciary.  

On October 19, 2020, in a decision without an opinion, four of the current eight Supreme Court Justices agreed to hear a lawsuit brought by the Pennsylvania GOP to overturn the PA Supreme Court’s decision based on their own state law and constitution. As experts have said, the decision was the biggest signal of our highest court ruling along clear partisan lines. This comes as Pennsylvania is already gearing up to be a highly contested state for counting ballots, expecting it to take days if not weeks to count every vote. 

This is an uncomfortable truth: if either side attempts to delay or derail the count through lawsuits, we might not be able to rely on the law to ensure a free and fair election. Ensuring a fair count isn’t partisan, its pro-democracy.

President Trump’s lawsuits should be characterized as what they really are: an attempt to gaslight the voters of the state and turn over the outcome of the Presidential election by a federal bench filled with Trump appointees.

A majority of voters believe that Trump is trying to steal the election, and it is important that the media takes efforts to ensure that they are not complicit.

Trump stealing the election is not just speculative. It is what a majority of voters believe is happening. New polling from Data for Progress and The Justice Collaborative Institute finds that a majority of likely voters, including around one-third of Republicans, believe Trump will try to interfere with the results of the election, either with attempts to stop the counting of ballots if he has the lead on election night, or by outright voter fraud. Additionally, 45% of voters believe Trump and his campaign would succeed at disrupting the counting of ballots if they were to try. Additional findings illustrate this further:

• 53% of voters, including 33% of Republicans, believe that President Donald Trump and his campaign will try to commit voter fraud and steal the election.
• 57% of voters, including 35% of Republicans, believe that President Donald Trump and his campaign will try to stop the counting of ballots if they are ahead based on the ballots counted on election night.
• 45% of voters believe that if President Trump and his campaign try to disrupt the counting of ballots, they will be successful.

As the above poll shows, most voters in America believe that Trump will not simply rant about a rigged election, but will actually try to rig the election himself. More concerning still: nearly half of Americans believe he will be successful if he tries. Recent Pew Research and PRRI polling suggests the same. 

The media should use its influence and editorial discretion to call out efforts to intimidate voters or stymie efforts to vote, discredit the narrative of chaos spread by President Trump and his allies, and decry any effort to subvert the popular vote by resorting to lawsuits in front of benches stacked by the current administration’s appointees. 

The media should also refrain from announcing a victory for President Trump on election night unless all the votes have been counted. If he claims victory without cause, or based on his unsubstantiated belief that thousands of ballots should be disregarded due to “fraud,” the media should publicly characterize his comments as unfounded and unsubstantiated, and that he is in fact attempting to steal the election.