One of President Trump's most loyal propagandists is predicting that Trump will claim victory on election night as soon as he is ahead among Election Day voters. But that scenario is based on a misconception of how all ballots are counted and the early returns are compiled, according to election and legal experts.
"At 10 o'clock or 11 o'clock… on November 3, Donald J. Trump is going to walk into the Oval Office, and he may hit a tweet before he goes in there… and he's going to sit there, having won Ohio, and being up in Pennsylvania and Florida, and he's going to say, 'Hey, game's over,'" said Stephen K. Bannon, Trump's 2016 campaign CEO and former White House adviser, during a defiant speech on October 10 forum hosted by the Young Republican Federation of Virginia.
"The elites are traumatized. They do not want to go stand in line and vote. That, ladies and gentlemen, is a game-changer," Bannon said. "It [the decisive factor] is what electorate shows up to vote on a vote that can be certified. That's a vote that counts. And right now, what they [Trump critics] don't want to talk about, is Donald J. Trump leads on people who are actually going to show up and vote on November 3, by 21 percent."
Bannon's prediction that Trump would defy norms by asserting that he won before indisputable victory margins were reported was not just another sign that Trump would not heed the rules governing 2020's election. Bannon's fiery speech was a glimpse into a propagandist's mindset that drew on smears and distortions to fan partisan ill will. But his prediction of how Trump could claim an early victory was based on a flawed premise, because no early returns on election night were only going to contain the in-person votes cast on Election Day.
"The first reports are the county totals," said Chris Sautter, an attorney who has specialized in post-election challenges and recounts for decades. "You don't get the breakdowns [of votes cast in different categories such as early voting, mail-in votes, Election Day votes, and overseas votes] until after election night. It depends on the state."
Other election administration experts confirmed that the election night returns would be a mix of all of the earliest votes cast—from early in-person voting sites, from absentee ballots that had been returned and processed, and from in-person voting on Election Day. (As of October 15, more than 16 million absentee ballots had been returned or cast in early voting, the U.S. Elections Project said.)
"There's literally not a single credible journalist or analyst who would look at early returns in a close race with many ballots left to count and declare victory," said David Becker, the executive director of the Center for Election Innovation and Research. "If counting of all ballots magically ended at midnight on election night, we would have had a President Gore, and Donald Trump wouldn't have won the presidency."
"Most importantly, to do so would be to disenfranchise the millions of men and women in the military whose votes often don't arrive until after Election Day," Becker continued. "That said, many early in-person ballots and early-received mail ballots will be processed on election night, especially in states that allow early pre-processing of those ballots, such as Arizona, Florida, Georgia, North Carolina, and Ohio. So, many votes may be reported out that night."
Sautter and Becker, a former U.S. Department of Justice (DOJ) Voting Section attorney, operate in a world where facts, laws and election procedure dictate who wins elections—including post-election jury-like proceedings to ascertain voter intent on contested ballots. But the world of legal opinion is not the same as the sphere of public opinion, which is where Trump and Bannon shape narratives based on feelings, grievances and disinformation.
"Trump's strategy is to create chaos, uncertainty," Sautter said. "What Bannon is saying is if Trump is ahead on election night, I'm sure he will declare victory. Trump [also] may take some kind of legal action to try to stop the counting. I can't imagine that would be successful. It would be like Florida in 2018. They [Republicans] filed a suit there and it got thrown out."
"Distinguishing between these two things [electoral facts and fantasies] is really important," said Justin Levitt, who oversaw the DOJ's voting rights enforcement in the Obama administration. "I think there will be lots of the latter. I think there will be suits filed. I think there will be people screaming. I think there will be lots of tweets. What I have been saying of late is reminding people that a lawsuit without provable facts is just a tweet with a filing fee."
But back in rural Virginia, Bannon spun out a narrative to a rapt audience that was filled with innuendo, grievances, premonitions and assumptions that the vote would be stolen.
"I don't like loose talk about civil war, but I got to tell you," Bannon continued, "when you hear what the Democrats are saying, what their rhetoric is. Remember, Hillary Clinton, their last presidential candidate, what did she say? Under no circumstances—no circumstances—is Joe Biden to concede… They're going to keep counting until they get 270 Electoral [College] votes for Joe Biden, right? They are going to be voting by the pound and voting by the pallet."
Actually, Clinton urged Biden not to concede on election night when votes were being counted, which is not the same as never conceding.
Bannon's deliberate exaggerations and accusations about manufacturing votes went deeper than GOP cliches about Democratic cheating. Bannon has long promoted a white-centric nationalism, notably as the former head of Breitbart News. Now, flying in the face of both democracy and fact, he is asserting that in-person voting on Election Day is more American, and is more accurate, than voting beforehand via a mailed-out absentee ballot.
"They can't beat Trump in the traditional way Americans have voted for 200 years," Bannon said. "You go into a booth, close the curtain. Only two folks know, you and God, know who you vote for. Write it down, bang, done. You vote by mail—look, I vote by mail. Sometimes, I'm [an] absentee [voter]. I understand it is a risk. Multiple people are going to put their hand on your ballot. And it may not end up being certifiable. That's the risk I took."
Rather than unpacking Bannon's distortions and contradictions—for example, absentee ballots originated in the 19th century's Civil War, and Trump votes by mail—it is important to grasp the big picture he painted. Bannon relegated votes cast by millions of people, dominated by Biden supporters, into a second-class status. And he disparaged people voting with an absentee ballot as weak and un-American, because they had fallen for media reports about the pandemic.
"You chose not to go to a poll," Bannon said. "The reason you chose is your mass media apparatus, which has dominated this country, was irresponsible and caused mass hysteria on your voters. That's your problem. You're not going to make your problem the nation's problem. And we will not back down one inch. And I'll tell you who is going to join us in that, a guy named Donald J. Trump."
The driving force behind Bannon's narrative, apart from a desire to keep Trump and the GOP in power, was polls and other voter data showing that more Trump supporters were planning to vote on Election Day and more Biden supporters were intending to vote with absentee ballots. In recent weeks, many Democrats have shifted their plans to voting early at in-person sites.
Bannon, nonetheless, built upon the lie that the pandemic was not a threat. He exaggerated problems in the little-known process of vetting returned absentee ballots. In that administrative process, a voter's identity is first verified by officials who review how their ballot-return envelope has been filled out and signed. Only then are ballots taken out and counted.
Bannon claimed that in New York City's June 2020 presidential primary, 30 percent of absentee ballots in Brooklyn and 20 percent of absentee ballots in Manhattan were disqualified because voters did not properly fill out envelopes or returned them too late. (Those high rejection rates did not occur across both boroughs, but only in specific localized settings. In 2018, the national rejection rate for absentee ballots was 1.4 percent, federal data reported. In Florida in 2019, it was 1.2 percent. In Wisconsin's primary this past April, it was 1.8 percent. Sloppy signatures, lines left empty and mistakes with filling out the envelope were the leading causes.)
"Right now… they've requested 1.5 million absentee ballots in Pennsylvania," Bannon said. "Ten to 20 percent will not be certifiable. What that means is it [is] going to be a dogfight in those rooms [in county offices where returned ballots are processed]. Remember, every ballot that can be certified should be certified. And that ballot should count. That's a vote. But you've got a lot of things that you [absentee voters] have got to check off to get to certification, because you chose—you chose—not to go to a poll."
As of October 15, Democrats requested 1.7 million ballots, Republicans requested 652,000 ballots, and other voters requested 290,000 ballots, the U.S. Elections Project reported.
Democrats and voting rights groups have filed scores of lawsuits to ensure that voters who incorrectly fill out a ballot-return envelope, or whose ballot is postmarked in time but does not arrive at election offices until after Election Day, will still have their votes counted. The Trump campaign and its allies similarly have intervened in those suits and filed their own suits to limit voting and vote counting options. Both parties are trying to shape the rules to their benefit, but some GOP suits are being filed for propaganda purposes and to undermine the results.
"Some of the lawsuits are being filed to generate public conversation that is misinformation or misleading about the illegitimacy of the process, about the existence of widespread voter fraud. These [claims] are not true," said Wendy Weiser, who directs the Democracy Program at the Brennan Center for Justice at New York University. "It's the same challenge that exists outside the litigation context. This has been part of the president's M.O. in the lead-up to this election."
There was no Democratic counterpoint to Trump's assertions that the expansion of voting by mail in response to the pandemic was inherently fraud-ridden, which Bannon implied.
"They just keep counting until they win," he said. "It's got to be fought. And where it's got to be fought is folks like you, as election officials, in that room, no back[ing] down. Every ballot has got to be certified. If it's by the rules, it's good. If it has any, a scintilla of not good, it's not certifiable. Sorry, not sorry, right?"
While Bannon predicted that Trump would declare victory based on partial results, and his campaign would fight to disqualify as many absentee ballots as possible, Bannon repeatedly said that it was the Democrats and their allies who were going to cheat to steal the 2020 election.
"We're not going to allow this election to be stolen, either through some shenanigans in the courts or some shenanigans in mail-in ballots that nobody can actually process," he said. "That will not happen. And the way to make sure that does not happen is, number one, set the predicate on November 3 [by Trump declaring early that he won]. Once we set that predicate that Trump's the winner on Election Day, that is mighty hard to unwind."
"He's [Trump] is not going to go quietly into that good night, trust me," Bannon continued. "He's going to put up a big victory on… [November 3] and he's going to want his troops to back him up on it. So, look, we have a long haul. I don't think this thing will be determined… until right before Inauguration Day… The Democrats have no intention of conceding."
Bannon's narrative hinges on his belief—which may be shared by Trump—that officials will segregate Election Day votes from the other ballots that have been cast and counted by election night. But that's not how officials count and release early returns. Moreover, those early returns will include a record number of voters who cast their absentee ballots early and who voted at early voting sites.
American elections do not have separate and unequal ballots.
"We've always counted ballots for days after Election Day, and we will do so once again," said Becker. "This is normal, and anyone who seeks to change the rules and put an artificial deadline on the process only reveals their ignorance."
Steven Rosenfeld is the editor and chief correspondent of Voting Booth, a project of the Independent Media Institute. He has reported for National Public Radio, Marketplace, and Christian Science Monitor Radio, as well as a wide range of progressive publications including Salon, AlterNet, The American Prospect, and many others.
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