Laurence H. Tribe, Jennifer Taub, and Joshua A. Geltzer write:

As President Donald Trump reflects on his sinking approval ratings and grows more desperate by the day, he’s been floating a dictator’s dream: postponing the November election. Even Senate Majority Leader Mitch McConnell and other Trump loyalists, including the Federalist Society co-founder Steven Calabresi, swiftly rejected this authoritarian fantasy. So Trump has retreated to a fallback position: casting doubt on the legitimacy of any election he doesn’t win. That starts by inventing fables about how voting by mail invites massive fraud and interminable delay—except, Trump now tells us, in Florida, where Trump’s elderly supporters will surely rely on it.

Trump’s attack on voting by mail has several fronts, but one is by far the most serious: his attempt to slow down mail service, perhaps in a targeted way, while also insisting that only ballots counted on November 3 are valid. In addition to casting doubt on the entire election, another purpose of this scheme is to engineer a scenario in which Trump can pressure Republican-controlled legislatures to ignore the popular vote in their Democratic-leaning swing state (think Michigan, Pennsylvania, and Wisconsin) and instead select an Electoral College slate that supports him. Trump’s attempt to cut short the counting of valid votes is flatly contrary to constitutional law and federal statutes. Even so, states can and should do more to protect American’s mailed-in votes. States should immediately enact new legislation or take other legal steps clarifying that they intend for Congress to honor electors they choose, and that they may need a bit of time to finalize choosing them—ideally doing so by December 23 and no later than January 6, 2021, when Congress meets in special session to certify the election results. Through state-level action, Trump’s efforts can be neutralized.

We can see glimmers of Trump’s approach in what he said about Florida’s tight 2018 gubernatorial and Senate races, and he’ll say it again to delegitimize the counting of mail-in ballots that might cost him reelection. We’ve received a frightening preview in the Census Bureau’s recent announcement that it plans to cut off population-counting efforts one month early, well before needed to meet the December 31 deadline for delivering census results to Congress.. This decision was made after the Trump administration itself had asked for more time, not less. It’s the same play: When Trump doesn’t like the numbers coming in, he stops counting. [Continue reading…]