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The Count #5: Would SCOTUS Let Trump 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:

  • NEW POLLING: Final election results may come later than voters expect — which could allow President Donald Trump to make his biggest lie yet and falsely claim victory.
  • How the Supreme Court, aided by SCOTUS nominee Amy Coney Barrett, could help Trump steal the election.

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THE DAILY COUNTDOWN.

  • 19 days until election day.
  • 54 days until the deadline for all ballots to be counted.
  • 60 days until electoral college slates send their votes to Congress.
  • 83 days until Congress counts electoral college votes.
  • 97 days until inauguration day.

NEW POLL: FINAL ELECTION RESULTS MAY COME LATER THAN VOTERS EXPECT.

Presidential elections used to come down to a handful of minutes on a single night where the results are called, the loser concedes, and the winner claims victory. This year, we likely won’t know the election outcome for days, perhaps weeks. And voters are not prepared.

New polling from Data for Progress and The Justice Collaborative Institute found voters are confident that results will still arrive on election night.

  • 47% of likely voters believe they will know the winner of the presidential election on election day.

If voters expect a result on election night, it increases Trump’s ability to cast doubt on the results. Donald Trump has made clear he will contest the results of the election if results are not called for him on election night — he will declare fraud, decry the expected “blue shift”, and set into motion his plan to steal the election. So, while it might seem like good news that over half of Americans are not confident that they will know the election results on November 3rd, it’s actually very bad news. No one should be certain that we will know the winner on November 3rd, and this lack of broad public understanding, plays right into Trump’s plot.

That’s because a focus on election night is a critical part of Trump’s strategy. Despite a group of bipartisan secretaries of state saying this week that election results will take longer this year, Steve Bannon, Trump’s former chief strategist, keeps talking about this as the “game day victory.” On Wednesday he said, “Here’s what’s going to happen: I think 10, 11 o’clock on election night, President Trump’s going to be pretty far ahead, and he’s going to declare that, hey, he’s the winner. ’Cause that’s the real vote, the vote that counts.”

It’s crucial to educate and prepare voters about the likely election result timeline.

Telling likely voters the following three pieces of information decreased by 9% the number who were confident about getting results by election night:

  1. Mail-in ballots take longer to count;
  2. Pennsylvania’s Secretary of State has said not all votes will be counted by election night; and
  3. States that have relied on mail-in ballots in the past often don’t have immediately clear results.

— “[This] just shows the importance of the task that we have, the media has, that our elected officials — at least the sane ones — have to make sure voters are aware of the drawbacks of trying to make a conclusion about an election on election night.” — The Count guest Jason Ganz

  • KEY TAKEAWAY: Trump continues to talk about results being known on election night, even though election officials see that as unlikely. It’s crucial that voters understand this. Trump plans to use expectations of an immediate outcome to undermine confidence in the election results and falsely declare himself the victor. By educating voters about the ballot counting process, more voters will be prepared to wait for final election results.

WOULD THE SUPREME COURT LET TRUMP STEAL THE ELECTION?

There is little stopping Republicans from confirming Judge Amy Coney Barrett to the U.S. Supreme Court, which would form a 6-3 conservative bench. In 2000, the Supreme Court’s controversial Bush v. Gore ruling blocked a hand recount of presidential ballots in Florida, spurring Gore’s concession. This year, the RNC and Trump’s campaign have doubled their legal budget. Fights over which ballots can and cannot be counted will be the most intense political—and legal—fight yet. Some of those legal battles may end up in front of SCOTUS.
  • TRUMP RELYING ON THE COURT — During the first presidential debate, Trump said he was “counting” on the Supreme Court to “look at the ballots.” He has also said that he thinks the election “will end up in the Supreme Court” and that having eight justices is “not good.”
  • HE’S NOT THE ONLY ONE — South Carolina Senator Lindsey Graham, who as Senate Judiciary Chair is leading the charge for Barrett’s confirmation told Fox News, “I promise you as a Republican, if the Supreme Court decides that Joe Biden wins, I will accept the result,” Mr. Graham added. “The court will decide.”
  • WHY SCOTUS MATTERS — In the last few weeks, SCOTUS upheld South Carolina’s witness requirements, allowed Maine’s ranked-choice voting to go ahead, okayed Montana sending mail-in ballots to all registered voters, and could still rule on several more cases, including a ballot deadline case from Pennsylvania. After election day, federal lawsuits or appeals from state supreme courts could end up in front of SCOTUS.

— “In terms of this question as to whether or not she would recuse herself … Sure, yes, that should happen, but of course she’s not going to do that. Why would she? This is the whole point of the conservative legal movement … Her recusing in this case would be tantamount to surrender and it’s just not going to happen.” –The Count guest Jay Willis


WHAT WE ARE TRACKING

  • More than 128,000 Harris county voters cast ballots on the first day of early voting this week, nearly double the county’s previous record from 2016. The county has also added at least 90,000 previously unregistered voters to their rolls who weren’t new to the county. This may benefit Democrats because unregistered voters are “far less white” in a county that is already less than one-third white.
  • Ballots in California’s fake drop boxes will be counted. The GOP-created boxes are illegal and an investigation is ongoing, but the ballots dropped in them will be treated and counted as ordinary ballots.
  • Georgia’s long early voting lines may remain after a judge ruled that it is not the court’s job to allocate voting equipment to shorten voters’ wait times.
  • Counting of Florida’s mail-in ballots has begun. Florida’s election officials can begin counting mail-in ballots 22 days before election day, which is crucial to manage the huge number of mail-in ballots this year. As a result, the state–despite repeated election snafus–just might “be the shining star on election night,” according to the president of the state association of supervisors of elections.
  • Today is the last day to register to vote in Arizona after an appeals court ruling ended an extension that was set to run until Oct. 23.

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