President Donald Trump has spent $20 million of his political war chest to stop it. He riffs about it at rallies. He tweets relentlessly about it.
Yet six months into a crusade to stop universal mail-in voting, Trump hasn’t yet prevented a single state from sending voters the unsolicited ballots he claims, with minimal evidence, are ripe for fraud.
His attempts in Nevada, New Jersey and Montana are tied up in court. His legal challenge in California was circumvented by the state legislature. And he hasn’t challenged the mailing of ballots in the six other states that plan to mail them, including Vermont, the last state that switched to full remote voting this year following the coronavirus outbreak, according to the Trump campaign and the Republican National Committee.
Time is running out. Ballots are already being sent across the country. Some counties in New Jersey began mailing them last week. Both Vermont and Nevada, a battleground state the president campaigned in last weekend, expect to mail ballots within days.
“Once the ballots have gone out, it’s hard to see how the courts could grant meaningful relief on the claims,” said Richard Pildes, a leading expert on election law and a professor of constitutional law at the New York University School of Law. “There would be no way to put the genie back in the bottle, no way to put the toothpaste back in the tube.”
And by mid-October, the rest of the universal mail-in voting states will have started sending out ballots, according to the National Conference of State Legislatures. Since 2006, the Supreme Court has repeatedly warned courts not to allow significant voting changes close to Election Day, in one case citing 75 days out as a deadline.
A judge could still order a state to delay ballot mailings to let a case run its course — this week, for instance, the Texas Supreme Court halted ballot applications from being sent in the Houston area while a GOP case is pending. But in New Jersey, Republicans didn’t ask for a postponement.
The president’s push against mail-in voting — which began in the spring as the pandemic raged and his poll numbers dropped — has allowed him to present himself as a fighter on a process Trump’s most ardent supporters say will let Democrats manipulate the election to favor Joe Biden.
But there are signs Trump’s strategy is causing confusion and fear among his Republicans allies. Recent polling shows Republicans have become concerned about remote voting, and Democrats are outpacing Republican requests for absentee ballots in some swing states.
“If there is a threat to our election this year, it’s not mail-in ballots,” said Tom Ridge, a former Republican governor of Pennsylvania, who now co-chairs VoteSafe, a bipartisan voting group pushing for more mail-in votes and safer in-person voting. “It’s the president sowing doubt in the results of the election.”
Ridge said Americans need to accept that voting will be different this year. There will be an unprecedented number of absentee ballots, some states will start verifying ballots before Election Day and the country will likely not know the winner of the presidential race on Nov. 3.
“The pandemic has changed everything about our lives, so why wouldn't it change the way we run elections, too?” he said.
In near-daily diatribes, tweets, interviews and speeches, Trump has spent months making evidence-deficient allegations about mail-in voting leading to massive election fraud. On Thursday, he tweeted about it nine times. His campaign has used the issue in appeals to supporters.
“I want to know the names of EVERY Patriot who stands with me against rampant and fraudulent mail-in-ballots. My team is giving me the list first thing TOMORROW morning. Will I see your name on there?” Trump wrote in an email to supporters in June.
On Facebook, Trump campaign ads asking for donations have similarly focused on the issue. “The Radical Left is trying to STEAL THE MOST IMPORTANT ELECTION OF OUR LIVES, so President Trump is calling on you to join his White House Defense Team,” one ad said.
Democrats — and even some Republicans — say Trump is making the allegations to undermine confidence in the election results in case he loses.
“You have to wonder to what extent any of the players … are trying to use delay as a tactical advantage or chaos,” said Ned Foley, director of election law at the Moritz College of Law at Ohio State University. “Some sides might benefit or think they benefit from rocking the boat because they think they’re going to lose or they think they want to create a narrative that the system is untrustworthy.”
The Trump campaign didn’t comment on the record for this report but, an official proclaimed victory in California and New Jersey, where legislatures were forced to act after courts ruled that governors overstepped their authority by ordering mail-in ballots be sent to all voters. Other Trump-backing Republicans argue it’s unfair to say Trump hasn’t been successful in halting new universal mail-in voting systems since several cases are pending. And they cite victories in three key states for Trump — New Mexico, Minnesota and Pennsylvania — where the GOP successfully opposed lawsuits designed to force those states to send universal ballots or ballot applications to all voters.
“The RNC is involved in several cases in which we are challenging attempts to mail unsolicited, live mail-in ballots to every voter on the voter roll in contradiction of both state and federal law,” RNC spokesperson Mandi Merritt said. “As recent experience in the Nevada, New Jersey, New York, and Montana primaries have demonstrated, these poorly conceived and poorly implemented programs create chaos by straining the resources of election officials, and they result in a glut of loose, live ballots floating around the state where they could be found and returned by anyone.”
While Trump argues unsolicited ballots can result in fraud, there is little evidence of that. Instead, other problems are more likely: Voting rolls that determine who receives a ballot could be inaccurate, ballots could be sent to the wrong address or lost in the mail, or voters may have their ballot tossed out for not following directions, for not having a proper signature or for having a name that doesn’t exactly match information on file with election officials.
Hans von Spakovsky, who manages the conservative Heritage Foundation's Election Law Reform Initiative, said courts should stop states from moving to universal voting this year and states should spend time training poll workers for in-person elections.
“They shouldn’t be changing the rules this close to the election,” said von Spakovsky, a former member of the Federal Election Commission. “If I was a federal judge, there would be a hearing the next day. You just can’t make major changes before an election.”
A record number of Americans are expected to cast their ballot by mail this year — many in Republican-dominated states and swing states where GOP turnout is crucial for Trump.
Trump’s campaign and the RNC pledged to spend $20 million to challenge voting rule changes resulting from the pandemic. They have had successes in some lawsuits that address everything from ballot drop boxes, voting deadlines and witnesses for absentee ballots. But so far, none of the lawsuits have impeded the 10 states planning to send out ballots to all voters.
The campaign and RNC do have ongoing lawsuits in three states — Nevada, New Jersey and Montana. Republicans sued Nevada after the Democratic-controlled legislature passed a plan to mail ballots to all registered voters. Democratic governors in New Jersey and Montana made the decision to send out unsolicited ballots, and the New Jersey legislature quickly voted to do the same to head off the Republican lawsuit.
New Jersey has already started mailing out its ballots, and in their lawsuit there, Republicans never actually asked a judge to halt that process. U.S. District Court Judge Michael Shipp even had to push the GOP’s attorneys to hurry up, saying the case was “butting up against the election.” In Montana, Gov. Steve Bullock, a Democrat running for U.S. Senate, is giving counties the authority to mail ballots — and most have decided to do so.
Trump also fought Democratic Gov. Gavin Newsom’s order in California. But after the Republican legal challenges, the state’s legislature passed a bill ordering ballots be mailed to all voters. While the unsolicited ballots are still going out, the Trump campaign and RNC declared victory after legislators prevented them from being mailed to voters who have not participated in recent elections.
Up in Vermont, state-based Republicans challenged the decision of Vermont Secretary of State Jim Condos, a Democrat, to send ballots to all voters. But the Trump campaign did not join that suit, according to the RNC.
The Trump campaign also did not sue to stop ballots in the five states — Colorado, Hawaii, Oregon, Utah and Washington — that were already conducting all-remote elections before the pandemic, according to the RNC.
Richard Hasen, an election law expert at the University of California, Irvine School of Law, said Republicans have an uphill battle in these suits: First, they need to prove to a judge that they have a legal interest in cases; then, they have to prove their fraud allegations.
“The courts have been skeptical of those kinds of claims and more deferential to the states if they’re going to allow mail-in ballots or not,” he said. “Claims of widespread voters fraud are unproven.”
Matthew Friedman, Jeremy White and Zach Montellaro contributed to this report.
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