Election officials in Pennsylvania and Wisconsin have distributed more than 4 million mail-in ballots to voters in the lead-up to the 2020 election. State legislators in Pennsylvania and Wisconsin, however, have deliberately refused to give those administrators any extra time to open, process, and tabulate all of those ballots. And now Republicans in those states are insisting that a quick result ought to be announced on election night to guard against “fraud.”
There is a wild and intentional contradiction at work here: Republicans in these swing states maintain that they can’t count late-arriving mail ballots because a winner needs to be declared on Tuesday night.
But they have also used their ill-won, gerrymandered majorities in these states to block every nonpartisan attempt to produce a faster tally and provide election officials with the same head start that 40 other states allow for the long hours of removing those millions of ballots from security sleeves, verifying the signatures, and preparing them for tabulation.
If there’s chaos this week, these Republican state legislators — not Donald Trump — made it possible by forcing the slow count that the president and Republican lawyers could then use as a pretext to declare victory and pretend that fraud or suspicious activity was afoot.
Earlier this week, voting rights advocates were, quite appropriately, alarmed by a 5-3 Supreme Court decision that will prevent Wisconsin from counting mail-in ballots that arrive after Election Day, even if the voter mailed it on time and the envelope has been postmarked on or before November 3.
Justice Brett Kavanaugh, in one of three concurrences, held that states like Wisconsin “want to avoid the chaos and suspicions of impropriety that can ensure if thousands of absentee ballots flow in after election day and potentially flip the results of an election.” In addition, he maintained that those states “also want to be able to definitively announce the results of the election on election night.”
This is an unsustainable position. If those were the actual concerns of Wisconsin Republicans, there’s a simple solution: Start processing those mail-in votes early. But lawmakers have refused to do that and give election officials ample time to process ballots and deliver a speedy result. (Michigan, where the legislature is under similar GOP-gerrymandered minority rule, relented in October and gave officials a small 10-hour head start — hardly enough, but better than nothing.)
Pennsylvania and Wisconsin have something else in common, beyond legislators that won’t accede to common-sense, nonpartisan voting standards during a pandemic. Both states have been so severely gerrymandered by Republicans that the GOP has controlled huge, unearned majorities for the past decade, even in years when Democratic candidates won hundreds of thousands more statewide votes.
It’s those gerrymanders — legislative district lines drawn by Republicans after the 2010 census that have locked in GOP minority rule in these crucial swing states — that will aid and abet any constitutional crises that follow the 2020 election. These crises are avoidable. Rigged legislatures don’t want to avoid them. The chaos is the point. It’s part of their plan.
We’ve seen the plan emerge for months: Undermine the integrity of mail-in voting with unfounded claims of fraud. Encourage your voters to show up on election day, rather than vote by mail. Slow down the mail and fight in courts for hard-and-fast deadlines, while also battling efforts to add convenient drop boxes that make it easier to vote. Fight in the courts to knock out as many mail-in ballots as possible. Then declare victory on election night off a “red mirage,” before millions of swing state mail-in votes — potentially overwhelmingly from Democrats after the president’s months-long Twitter rants against voting by mail — are counted. Push everything into the courts that have been stacked and packed by Trump and Mitch McConnell.
It’s a cynical scheme that should horrify all Americans who believe in representative democracy. But the entire plan relies on creating doubt around mail-in ballots and vote counting that extend into the subsequent days or weeks. It’s centered on declaring victory off election night totals that might favor Republicans, before every mail-in vote is counted. It requires curious opinions like Kavanaugh’s, that it is possible for results to “flip” even before every vote has been counted, and that ideologues in robes will then pretend that the “blue surge” of mail-in votes is fraud.
The rot in our democracy, however, extends far further than the president and a Supreme Court with an ill-gained conservative majority appointed by two presidents who lost the national popular vote. It’s the intentional inaction of GOP legislatures — won despite a majority of voters preferring Democratic candidates, holding power essentially severed from any control by citizens at the ballot box — that sets this chaos plan in motion. It is nothing less than a plan to retain power even if it means torching the basic tenets of the nation. It is not an accident. And if the nightmare scenarios come to pass next week, and our system begins to careen off the rails, it will be because these state legislators enabled all of it.
Yes, Kavanaugh’s disturbing decision casts the same irresponsible and inaccurate doubts on mail-in voting as the president does on his Twitter feed. Yes, more than 18 states, after all, allow absentee ballots postmarked by Election Day to be counted without a whiff of chaos, fraud, or impropriety. Yes, it’s Wolf Blitzer and Rachel Maddow who project winners on election nights as incomplete returns are filed, not the official state certifications, which are announced often weeks later. Kavanaugh also didn’t explain how results could “flip” before all the votes were counted. There is no reason to cast aspersions on late-arriving mail-in ballots, especially given the political slowdown of the U.S. Postal Service that has created a situation where just over half of all first-class mail is arriving on time in a blue stronghold like Philadelphia.
But this runs deeper than Trump and the court. GOP minority rule begins with the gerrymander. Republican lawmakers in Wisconsin and Pennsylvania aren’t only actively making this possible. They are the very reason why it can be done.
David Daley is the author of the national best-seller Ratf**ked: Why Your Vote Doesn’t Count and Unrigged: How Americans Are Battling Back to Save Democracy.