Get Informed

Subscribe to our newsletters for regular updates, analysis and context straight to your email.

Close Newsletter Signup

The Count #15: Kavanaugh Invites Trump To Steal The Election

The Count is a daily newsletter and live show from The Appeal and NowThis, focused on what happens in the scenario that the 2020 presidential race is too close to call on election night, if President Donald Trump makes good on his promise to not accept the election results, and what we can do in the 77 days between election day and the inauguration to uphold our democracy.

Today, we’ll look at:

  • How U.S. Supreme Court Justice Brett Kavanaugh is inviting President Donald Trump to steal the election.
  • How election nights have played out in history and how Democrats are preparing for the night of Nov. 3.

If you were forwarded this newsletter and would like to subscribe, sign up here.


  • 5 days until election day.
  • 40 days until the deadline for all ballots to be counted.
  • 46 days until electoral college slates send their votes to Congress.
  • 69 days until Congress counts electoral college votes.
  • 83 days until inauguration day.


Earlier this week, the Supreme Court blocked Wisconsin from counting mail-in ballots that arrive up to six days after the election.

The ruling was a win for Republicans in a key battleground state, but the bigger blow came in the 18-page concurring opinion penned by Justice Brett Kavanaugh, which has election experts worried that SCOTUS could meddle with the 2020 election results.

Justice Kavanaugh wrote that allowing votes to be counted after election day, could create “chaos and suspicions of impropriety” and “potentially flip the result of an election.” Kavanaugh also wrote that states “want to be able to definitively announce the results of the election on election night, or as soon as possible thereafter,” suggesting that there is a higher value to knowing results quickly than to ensure those results are accurate.

Yet, as Justice Elena Kagan wrote in her dissent, “there are no results to “flip” until all valid votes are counted. And nothing could be more “suspicio[us]” or “improp[er]” than refusing to tally votes once the clock strikes 12 on election night. To suggest otherwise, especially in these fractious times, is to disserve the electoral process.”

Moreover, continuing to count ballots after election day is standard procedure:

  • The deadline for states to certify results occurs weeks, even up to a month, later.
  • Robert Reich, a professor of public policy at the University of California at Berkeley, rejected Kavanaugh’s argument about states’ timelines: “States don’t seek to announce results [on] election night. The media does. States don’t even certify election results the day of the election. Many take weeks before certification.”
  • As Michael Li, senior counsel for the Brennan Center for Justice’s Democracy Program, told The Hill: “The simple fact that NBC calls it doesn’t mean the ballots are all counted. The counting is never done on election night. There are always provisional ballots, there are always military and overseas ballots.”

Justice Kavanaugh’s opinion also suffered from at least one consequential factual error. He wrote: “States such as Vermont … have decided not to make changes to their ordinary election rules, including to the election-day deadline for receipt of absentee ballots.” But….

  • Vermont’s secretary of state’s office called the second sentence “incorrect.” Vermont, the Secretary said, did make a change this year, which involved mailing out ballots to every voter a month before the election.
  • Yesterday, the secretary of state formally requested the Supreme Court “correct the erroneous claim” because “facts matter.”
  • Kavanaugh has since tweaked this sentence from “ordinary election rules” to “ordinary election-deadline rules.”

Yet another aspect of Kavanaugh’s opinion that troubled experts was his effective support of the Supreme Court’s ability to overrule state courts about state election rules–which was too much for even the Bush v. Gore majority:

“It is also stunning in its implications, because many states have protections in their state constitutions for the right to vote, but under Justice Kavanaugh’s theory … all of the state constitutional protections that were adopted by the people are invalid since they did not come from the state legislature. The implications of that argument are sweeping, and could be extremely harmful to the right to vote in various states and across the country.” — The Count guest Leah Litman


Trump has repeatedly said he expects the results of the presidential election to be announced almost immediately on election night.

  • Just 15 minutes after the Supreme Court’s ruling this week, Trump tweeted, “Big problems and discrepancies with Mail In Ballots all over the USA. Must have final total on November 3rd.
  • On Oct. 16, Trump told a rally crowd in Georgia that, “I want to find out, legitimately, who won or lost on November 3. I’m not looking to find out on November 19. Or on December 1.” (For the record, The Count would like a pony, but we don’t always get what we want, Donald.)
  • Trump ally Steve Bannon has even said Trump will declare himself the winner by 10 or 11 p.m. ET—which would be before polls have even closed in California.

Even in an ordinary year, the race being called that early in the night would be remarkable.

In 2016, the Associated Press called the election at 02:29 a.m. on Wednesday Nov. 9. In 2004, AP waited to call the election until 11.07 a.m. on Wednesday. And just over a century ago, in 1916, amid calls by Republicans of cries of fraud, it took days for the presidential election to be called for the incumbent.

This is, of course, no ordinary year.

More than 50% of all the votes cast in 2016 have already been cast. Two-thirds of these are mail-in ballots which simply take longer to process.

Of the states that had primaries after mid-March, results took on average four days to be confirmed. Battleground states were among the slowest with Pennsylvania and Michigan taking nearly a week.

This means the election won’t be called on election night unless it’s a complete blow out for one candidate. Senator Chris Murphy says Democrats are preparing for Trump’s “dirty tricks.”

“That night, as the president has indicated, he wants to shut the count down early. We’ll be ready for legal action the president may take as soon as the evening of election night to try and stop all of the ballots from being counted … I think one of the dirty tricks he’s going to employ is going to be an attempt either through political strongarming or through lawsuits to try and stop the ballots from being counted.” — The Count guest U.S. Senator Chris Murphy for Connecticut.

As Murphy said, “We may not know the winner on election night, and that’s okay. Democracy sometimes takes a little while.”


  • The Supreme Court ruled last night that it would not expedite Republicans’ request to review Pennsylvania’s mail-in ballot deadline extension until after election day.
  • Some Republican-leaning Pennsylvania counties say they don’t plan to start counting mail-in ballots until after the polls close, or even the next day.
  • Pennsylvania, Georgia, Michigan, Wisconsin and Oregon, are at high risk of activity by armed groups over the election.
  • SCOTUS ruled that North Carolina’s nine-day mail-in ballot deadline extension can go ahead, rejecting arguments from Republicans and the Trump campaign.
  • Texas voters must wear masks when voting, a federal judge ruled yesterday. An appeal has already been launched.
  • Republicans are already using Kavanaugh’s opinion to spread fear and misinformation about mail-in voting and election results.
  • Growing efforts to change the focus from election night to “election season.”

The Appeal in Your Inbox

Subscribe to our newsletters for regular updates, analysis and context straight to your email.