Trump signals he’s counting on the Supreme Court to help him steal the election

The presidential election is far from over, even though the president would like everyone to think otherwise.

Early Wednesday morning, President Donald Trump attempted to prematurely claim victory in the election in a tweet that was flagged by Twitter for spreading misleading information.

“We are up BIG, but they are trying to STEAL the Election,” Trump tweeted. “We will never let them do it. Votes cannot be cast after the Polls are closed!”

But nobody is casting votes after the polls have closed. On the contrary, as noted by Daniel Dale of CNN, states like Pennsylvania are simply following lawful processes for tallying mail ballots postmarked by Election Day.

Trump’s tweet came right around the same time that Joe Biden delivered a brief speech in Delaware in which he referred to his apparent victory in Arizona, a swing in the Georgia tabulations in his favor, and his confidence in the Pennsylvania results, which prompted him to say, “I am here to tell you tonight we believe we are on track to win this election.”

“We can know the results as early as tomorrow morning ... [but] it’s not my place or Donald Trump’s place to declare who won this election. That’s the decision of the American people,” Biden added.

Trump, however, wasted no time indicating that he does think it’s his place to proclaim himself the victor, even as a number of states continue to tally lawfully cast ballots. And he went even further during a Trump rally-style event in the White House that began after 2 am Wednesday, describing lawful efforts to count ballots as “a major fraud on our nation.”

“So we’ll going to the US Supreme Court,” Trump said. “We want all voting to stop.”

But all voting has stopped. What Trump was really saying is that he plans to ask the Supreme Court to prevent states from following laws allowing for votes that are postmarked before Election Day from tallying them, because doing so in places like Georgia and Pennsylvania could result in a Biden victory.

CNN’s coverage of Trump’s White House event highlighted that the rationale for his challenge is unclear.

Trump and his campaign have spent months signaling that if things didn’t work out for him at the ballot box, legal challenges to mail ballots would be his last-ditch attempt to stay in power — even though the experiences of states ranging from Utah to Florida illustrate that mail voting is not particularly vulnerable to fraud.

Comments made on Sunday by Trump campaign official Jason Miller and the president illustrated how Trumpworld wasn’t really trying to hide what they hoped to do. On ABC’s This Week, Miller dismissed the idea that all ballots should be tallied, painting it as a Democratic effort to “steal” the election — and indicated that Trump’s strategy is to prematurely declare victory.

“If you speak with many smart Democrats, they believe that Trump will be ahead on election night, probably getting 280 electoral [votes], somewhere in that range, and then they’re gonna try to steal it back after the election,” Miller said.

Miller’s comments alluded to the so-called “red mirage,” or Republicans appearing to take an early lead on election night as in-person votes are tallied ahead of mail ones, which were more in demand this year than ever before because of the coronavirus pandemic. As my colleague Jen Kirby explained, “It could look like Trump and other Republican candidates are on the verge of winning in some states on election night, only for Biden and Democrats to surge ahead after more mail-in ballots are counted.” That’s basically what could be happening in Georgia, where as-yet-uncounted votes in the Atlanta area have Biden in position to overcome Trump’s early lead in the tally.

Later Sunday, Trump was even more specific, telling reporters that “we’re going to go in the night of, as soon as that election is over [in Pennsylvania], we’re going in with our lawyers ... if people wanted to get their ballots in, they should have gotten their ballots in long before that.”

In reality, Pennsylvania prohibits mail ballots from being tallied until when polls close on election night (Democrats tried to change this in the runup to this year’s election but were blocked by Republicans). There’s nothing fraudulent about this; on the contrary, tallying ballots after polls close is what state law calls for.

It should be noted that just because the Trump campaign files a legal challenge to mail ballots does not mean that such a challenge will be successful. To cite one recent example, last month, US District Judge J. Nicholas Ranjan, a Trump appointee, ruled against a Trump campaign challenge to Pennsylvania’s mail voting rules. But as my colleague Ian Millhiser detailed last month, two US Supreme Court justices nominated by Trump — Neil Gorsuch and Brett Kavanaugh — signaled in their concurring opinions in Democratic National Committee v. Wisconsin State Legislature that they may be sympathetic to Trump administration challenges of state election laws that the president doesn’t like.

The specifics of any possible legal challenge Trump is planning to make to the election results remains to be seen. But the tone of his Tuesday morning tweet was quickly echoed by Republican National Committee spokesperson Elizabeth Harrington, who insinuated that Biden is trying to steal the election. (Ironically, at the same time they’re calling for the end of vote tallying in Pennsylvania, the Trump campaign is demanding all the votes be counted in Arizona, where Trump is projected to lose.)

But that’s not at all what Biden is trying to do. All he wants is for all the votes to be counted. Trump and his enablers, however, seem more interested in winning than they are in having a free and fair election.