Donald Trump’s legal strategy over the past year, in the face of dozens of indictments and potentially four trials in the midst of an election season, was to delay the judicial proceedings in every case as much as possible. The strategy seems to have paid off to a great extent. Only one of the four trials was held, and while it resulted in a conviction on 34 felony counts, the sentencing hearing, scheduled originally for July 11 and then September 18, was put off again by the presiding judge until after the election.
The same strategy of delay appears to be the Trump plan for the election itself. This involves placing as many procedural and administrative layers as possible into the system of determining and certifying election results on election day and afterward. These maneuvers in general seek to, 1) block voters who are likely to vote for Democrats from voting on election day by challenging the legality of their vote; 2) raise questions about the election after election day, feeding conspiracy theories of fraud and non-citizens voting; and 3) cause enough delay in the process of counting votes and certifying the election results so that electoral college votes cannot be cast from key states when they are required on December 14, or that Congress cannot certify a winner on January 6, 2025.
It seems to be the case that the goal of the Trump campaign, outside of an outright Trump victory on election day, is to ensure that there is no way Kamala Harris can be declared the winner in the presidential election. That means casting doubt on the integrity and fairness of elections and their administration, mostly in big cities in swing states. If the Trump campaign cannot produce an electoral college majority on election day, then it will probably try to obstruct as much counting and certifying as possible to keep any candidate from winning in the electoral college. This would send the election for president to the House of Representatives, which allows one vote per state for president in the event there is no candidate receiving a majority in the electoral college. This would ensure a Trump victory, as there are now (and probably will be in January 2025, when a new Congress begins its work) twenty-six states where Republicans make up a majority of state Congressional delegations.
There are multiple pressure points in the electoral system that can be exploited to meet the aims of the Trump campaign. One of these is the system for voting by mail. Over the years, and especially in 2020, a growing number of people have used this option. It is now seen as a normal and common way to vote, and states have employed a variety of rules and procedures for many years to address this. One way Donald Trump has targeted mail-in voting for several years is by saying that it is insecure or corrupt, that it is a way for Democrats to produce fraudulent ballots. This has meant that fewer GOP voters are likely be voting by mail than Democrats. The disparity between registered Democrats and Republicans who voted by mail was significant in both 2020 and 2022, and the same thing is expected to happen again in 2024.
This can be significant in the vote count (and it was in 2020), because on election night it might look like Trump is winning in a particularly close state, but then as more mail-in votes are counted over the next few days, the Democrats could gain on Trump and perhaps move ahead in the count to win the race. This happened in Pennsylvania in 2020, as the votes for Biden slowly overtook those for Trump, but the result wasn’t confirmed until four days after election day. This circumstance fueled accusations that Trump and the GOP made, saying that the Democrats were stealing the election by manufacturing votes illegally. Had the result been known on election night, the charges of a stolen election would have been much more difficult to make. The same dynamic is now set to happen again this year, adding more chaos, conflict, and uncertainty to the process of counting votes.
One element of this strategy has been to deliberately ensure a slow count of mail-in votes in order to help fuel the charges of fraud against Democrats, and in general create greater chaos and conflict. In 2020, the legislatures of Pennsylvania and Wisconsin would not allow mail-in ballots to be processed and counted prior to the closing of the polls on election day. Considering that the world was in the midst of the pandemic, and that a lot of voting would occur by mail, many jurisdictions throughout the country sought to find ways to accommodate mail-in voting and count votes more efficiently. These two states, however, did not. This year again, the Republican controlled legislatures in both states have again refused to change their process to allow for an earlier count of mailed votes. The time it took to get all the votes counted contributed significantly to a charged political atmosphere in 2020, and the same thing is expected to happen again, which Trump appears to see as being helpful to him.
A second point of pressure that the GOP intends to pursue is to ensure that as many mail-in ballots as possible will not be counted. Ballots sent by mail have certain requirements to be considered eligible – signatures, addresses, dates, and even witness signatures may be required. To the extent that small errors may be made in meeting these requirements, the GOP is seeking to have such ballots declared invalid and ineligible to be considered. For example in Pennsylvania in 2022 it is estimated that over 10,000 mail-in ballots were not counted because of voters writing in the wrong date, even though the ballots were received on time. These were not problems with verifying voter identity and their eligibility to vote, but instead were minor mistakes. Considering that Democrats are using mail-in voting more than Republicans, a strategy of invalidating such ballots offers an additional way to secure victory in swing states.
A third way in which the Trump campaign is preparing to tilt swing states in its direction has to do with the certification of voting results. This effort happened only by chance in 2020. Trump’s famous call to the Georgia Secretary of State, asking him to find 11,780 votes for Trump is the most well-known example, but Trump also tried and failed to do this at the local level in Michigan, even after inviting two such officials to the White House to try and convince them to refuse to certify the election in Wayne County, which overwhelmingly went for Biden. In 2024 this election strategy is not being left to chance, and it is likely to be the most significant element of Trump’s post-election day efforts. There is a widespread strategy that is being actively pursued, even if it is not centrally directed by the GOP. This involves two parts: 1) ensuring that key local elected or appointed officials are in an office in which they have to certify election results before they can become official, and 2) getting these officials to refuse to certify the results.
Many Trump supporters and election deniers have gotten themselves into positions in which they can now do this, serving in what has previously been a clerical or administrative role, and turning it into a position in which these individuals can “anoint themselves as the arbiters of the races within their jurisdictions.” Georgia now has a state election board controlled by Trump supporters, and it has new authority to challenge the vote totals and conduct its own inquiries. Beyond Georgia, the Trump campaign has the “support of an ever-larger number of public officeholders: as of last year, in a third of the country, an election denier is responsible for administering the 2024 elections at the state level.”
The point of all this doesn’t have to be in the service of producing an electoral majority for Trump, but rather to cause confusion and delay – and along with it a good deal of conflict – in the process of determining and certifying the final vote count. Moreover, this may be an effective tactic even in counties that tilt heavily toward Trump, where his supporters will have to certify the results. It might be the case that holding up the count in one part of a state makes it impossible to officially certify that state as a whole. As one Democratic election lawyer put it, “I think we are going to see mass refusals to certify the election…[Republicans] are counting on not just that they can disrupt the election in big counties, they are counting on the fact that if they don’t certify in several small counties, you cannot certify these statewide results.” If that can be done in some combination of swing states, then those states’ electors might not be chosen and would not cast electoral votes, thereby ensuring that neither Trump nor Harris wins a majority, throwing the vote to the House of Representatives. In 2020, Trump tried to establish a slate of fake electors in several states (some of the people who participated in these efforts have been charged with crimes), but the confusion-chaos-delay strategy for the 2024 election would avoid this problem altogether. Rather than recruiting a slate of fake electors, this strategy would go around the electoral college by making it so that electoral votes cannot be cast in time.
The GOP playbook for November looks ominous, and many of the things that Trump himself has said about voting suggest further reason for trepidation. One quote that has garnered great attention was when he said in July 2024, “Get out and vote, just this time…Four more years, it will be fixed, it will be fine. You won’t have to vote anymore.” He has also said things that have gotten much less attention, noting that with regard to the election in 2024, “We don’t need the votes. I have so many votes,” and “You don’t have to vote. Don’t worry about voting…We’ve got plenty of votes.” These quotes, also from July 2024, raise the question of whether Trump thinks he needs no additional votes because he has enough supporters serving as election officials in various swing states to ensure his own victory, or at least no decision in a sufficient number of states.
Lastly, January 6 represents another pressure point in the election. While storming the Capitol is probably not likely this time around, since security forces are expected to be deployed in large numbers, the goal involving January 6, 2025 would be to take advantage of the unresolved situation involving the electoral college count if other campaign efforts since November 5 have borne fruit. If the GOP plan has worked, and the Republicans have achieved their goal of running out the clock without a clear winner, then there would be no candidate with an electoral college majority. At that point the House of Representatives would have to vote for president (and the Constitution says it must happen immediately after a tally of the electoral college votes). Since the House votes by state delegation, with each state getting one vote, the result would put Trump in the White House, even if there is a Democratic majority controlling the House of Representatives next year when a new Congress is sworn in on January 3.
The Trump campaign in 2024 has learned important lessons from 2020. Whether the tactics involve vote by mail, the certification of results, or forcing a vote to be taken for president in the House of Representatives, there are several pathways it is pursuing to put Trump back in the White House.
The anti-Trump coalition is the biggest coalition in American politics, but it is unclear how many of these potential voters will actually show up at the polls. If these anti-Trump voters want to avoid the level of chaos, confusion, delay, and conflict that the Trump campaign is ready to unleash, they will have to vote in large enough numbers to ensure that a Harris victory is big enough to be conclusive, and to make it less likely that fueling conflict and producing procedural delays can deliver the presidency to Trump.