WASHINGTON – President Donald Trump's sustained criticism of mail-in ballots is dividing his party ahead of the Republican National Convention this week amid new signs it may be discouraging his own voters as much as it is the Democrats.
A USA TODAY review of mail ballot requests in several battlegrounds shows Democrats appear to be gaining an advantage in states such as Pennsylvania, North Carolina and Florida as Trump hammers away with unfounded allegations of fraud.
The growing chasm between the president's rhetoric on vote-by-mail and what on-the-ground Republicans see as a central component of their turnout strategy could make for a tricky dynamic at this week's GOP convention, where the party wants to build excitement to increase turnout, not depress it.
"The narrative that he’s created has backfired," asserted Michael Steele, a former Republican National Committee chairman. "Any Republican who's running a campaign knows how much we rely on absentee ballots – vote by mail – for turnout."
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In Pennsylvania – considered a must-win state for Trump's reelection – nearly 900,000 Democrats have requested a mail ballot for the Nov. 3 election so far, more than twice the number of Republicans who have done so. In North Carolina, also in play, some 177,000 Democrats requested ballots compared with just over 50,000 Republicans.
Democrats were outpacing Republicans by more than 600,000 ballot requests in Florida's primary election this week, a method once dominated by Republicans.
Still, Trump has continued to launch a rhetorical assault on the issue in the days ahead of the party's convention. Democrats used their meeting this past week to encourage voters to "make a plan" to request a ballot by mail.
"This is going to be the greatest scam in history," Trump told Fox News last week. "This will be the most fraudulent election in history."
Broader strategy
Trump’s attacks on mail ballots have been leveled in tandem with a broader, coordinated Republican strategy that has taken shape as both parties prepare for a legal firefight over voting that experts predict will only intensify in coming weeks.
The Republican National Committee earmarked $20 million last year for its election legal effort. Party officials published a website echoing the president's accusation that Democrats are trying to "eliminate nearly every safeguard." And outside conservative groups have run advertising on the issue, including in battleground states.
In a tweet this month, RNC chairwoman Ronna McDaniel accused Democrats of trying to "rig this election" and pointed followers to the website launched in May.
Republicans expect to train "thousands" of lawyers for the election, a Republican with knowledge of the plans told USA TODAY. Democrats also usually "lawyer up" and a Democratic source speaking on condition of anonymity said the party is building out a "voter protection" program that will be active in at least 20 states.
Still, Trump's messaging has not always aligned with the party and has at times been inconsistent. He's tweeted his support this month for the mail ballot system in Florida – where he himself mailed an absentee ballot – but slammed a nearly identical system in Michigan. Trump relied on a third party to deliver his ballot to the state, but has ripped into third-party ballot delivery in other states, including New Jersey.
The president and the GOP have sought to draw a distinction between mail-in voting, which they say they support, and "universal mail voting," where states automatically send a ballot to each voter. That latter system, they argue, can lead to fraud because voter rolls in some states are not up to date.
But only nine states have said they will use that "universal" system and, of those, only Nevada and Colorado are considered potentially competitive this year.
"All Americans deserve an election system that is secure and President Trump is highlighting that Democrats’ plan for universal mail-in voting would lead to fraud,” White House spokeswoman Sarah Matthews said. “While Democrats continue to call for a radical overhaul of our nation’s voting system, President Trump will continue to work to ensure the security and integrity of our elections.”
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Critics counter that Trump is less worried about fraud than he is about setting the stage to challenge the election if the result is extremely close or if early returns appear to favor Democratic nominee Joe Biden. Election experts say that Trump is correct that the expected huge increase in mail ballots could significantly delay results, but they say such a delay would be an indication of the system working, meticulously, through vote counting.
Mailed ballots always take time to count, and races called on Election Day are usually projections based on in-person returns. This year, because of the pandemic, there will be a lot more mail ballots to count.
"What he’s laying the groundwork for is for his supporters to believe that the election is not properly conducted so they rally behind him when or if he challenges the results,” predicted Sylvia Albert, director of voting and elections at Common Cause.
GOP mail ballots
But Trump's message is falling on the ears of Republicans as well as Democrats, and there growing signs that it may be having a bigger impact within the GOP. Steele, the former party chairman, said Trump's rhetoric not only had the potential to scare off older voters who tend to skew Republican but also any GOP voter who is concerned about turning out to the polls amid a public health emergency.
A Washington Post/ABC News poll last month found that 51% of Democrats would prefer to vote by mail compared with 20% of Republicans. By contrast, GOP voters said they are more willing to vote in person.
"If I were a Republican strategist, I would be pretty concerned...about a disproportionate decline in Republican turnout because Republicans are convinced that mail-in votes are so rife with fraud that there is no point in doing it,” said Ramesh Ponnuru with the right-leaning think-tank American Enterprise Institute.
"It stands to reason that the people who are actually susceptible to a Trump message are people who are disproportionately Trump supporters," he said.
The impact is not yet clear. Several key presidential states, such as Michigan, don't keep track of party affiliation for ballot requests. Ohio officials don't expect to report the partisan breakdown until after Labor Day. Voters do not register by party in Wisconsin. In Arizona, about 1.4 million Republicans have requested a mail ballot or have been placed on the state's permanent mail vote list compared with 1.3 million Democrats.
Lawrence Tabas, chairman of Pennsylvania's Republican Party, responded to the Democratic requests for ballots by arguing that the party remains confident the president will win the state despite what he described as "issues" with mail ballots.
"We know there are issues, the president knows there are issues, and the Democrats, if they are willing to admit it, know there are issues," Tabas said in a statement. "The concerns we have as a party, related to the mail-in ballots, won’t change the fact President Trump is going to win Pennsylvania."
Even if the impact on voters is not yet certain, the president's messaging has met with a mixed response among some conservative thinkers.
"Trump has managed to create some polarization among some right-leaning leadership, among thought leaders and in some state and local politicians," said Kevin Kosar with the right-leaning R Street Institute. "But, among the latter group (of) individuals, reality is reality. An election is coming, and they need a Plan B, an alternative to voting in-person. Expanding access to absentee ballots is the obvious Plan B."
Polling places
Trump hasn't limited his messaging to mail-in ballots. He's also promised a robust monitoring effort at polling places.
Trump has hinted at the possibility of an executive order on the issue in the past, without providing specifics. During a Fox News interview on Thursday, he said he is considering deploying law enforcement and U.S. attorneys to polling places around the country – an idea that drew a swift rebuke from critics, who said such a move would be tantamount to voter intimidation.
"We're going to have sheriffs and we're going to have law enforcement and we're going to have hopefully, U.S. attorneys, and we're going to have everybody, and attorney generals," Trump said. "But it's very hard."
It's not clear if Trump has authority to dispatch local law enforcement, who are controlled by local governments, to polling places. White House officials did not respond to questions about whether Trump is planning an executive order or what such an action might look like.
Outside experts have pointed to the Justice Department's election observer program, though the powers of that office were limited by a 2013 Supreme Court decision. The Justice Department referred questions about a possible expansion to the White House.
"In no uncertain terms, we fully condemn any plans that President Trump has to deploy federal law enforcement, U.S. Attorneys, or local sheriffs to our polling sites in November," said Kristen Clarke, president and executive director of the Lawyers' Committee for Civil Rights Under Law. "This is an old and familiar tactic pulled right from the Jim Crow playbook that is often specifically targeted at Black voters and voters of color."
'Hanging chads of 2020'
Officials in both parties foresee a sea of legal challenges even in states that aren't using universal mail voting. That's partly because state laws require voters to follow a series of instructions to cast a ballot, a process they must complete at home, without the help of poll workers.
Disputes over signatures, postmark dates and voter errors have been common for years – and often go unnoticed when races are decided by in-person votes. But this year, because of COVID-19, the number of mailed ballots will increase exponentially.
Justin Levitt, a law professor at LMU Loyola Law School, is tracking more than 200 COVID-19 election related lawsuits on the popular Election Law Blog. Those cases have been brought by both parties as well as third-party groups. It's too early to say if one side is prevailing over the other, but Levitt said one theme is that courts are wary of making wholesale changes to election systems and judges want to see proof of an alleged harm, be it fraud or disenfranchisement, before acting.
"One of the most notable aspects is that the things that you say in the court of public opinion may not fly in the court of law," Levitt said. "It turns out that judges demand evidence for claims – both of plaintiffs and of defendants."
The preponderance of litigation now could mean that the most contentious issues are addressed by the time Election Day arrives. Or it could be a preview of what's to come in November, experts said.
"I think there's a good chance that we could be shaping up for a Bush v. Gore type of situation," said Jason Snead, executive director of the Honest Elections Project, referring to the Supreme Court decision that settled the 2000 presidential election.
Snead, whose conservative group spent $250,000 on advertising this year opposing expanded mail voting, predicted that issues with mail ballots "could be the hanging chads of 2020."
Contributing: Bart Jansen, Kristine Phillips, Palm Beach Post
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