The Washington PostDemocracy Dies in Darkness

The Daily 202: Trump’s demand that courts block the counting of ballots fits with pattern of litigiousness

with Mariana Alfaro

President Trump took the stage in the East Room of the White House at 2:21 a.m. Wednesday as the Marine Band played “Hail to Chief.” Speaking to maskless supporters, the president declared a victory he has not won, baselessly accused his opponents of conspiring to perpetrate “major fraud” against him and announced that he will file what experts on the right and left say would be meritless lawsuits aimed at blocking battleground states from counting all the ballots that have already been cast.

“We were getting ready to win this election. Frankly, we did win this election,” Trump said. “We’ll be going to the U.S. Supreme Court. We want all voting to stop.”

The performance was as shocking as it was unsurprising. No sitting president has so blatantly sought to subvert democracy by challenging the integrity of a national election this way. On the other hand, Trump surely knows that exit polls show he won among Election Day voters and lost among those who voted early and by mail.

President Trump spoke from the White House in the early morning on Nov. 4, promising a legal challenge to the election results. (Video: The Washington Post, Photo: Jabin Botsford/The Washington Post)

For months, the president has not been subtle that he hopes judges will tip the scales of justice in his favor if necessary. “As soon as that election is over, we’re going in with our lawyers,” he told reporters on Sunday.

Moreover, throughout his career, Trump has tried to use the courts – and spurious lawsuits – to his advantage when he finds himself in a pickle. Trump’s longtime lawyer and mentor Roy Cohn had a saying: “F--- the law. Who’s the judge?” Former federal prosecutor James Zirin included that anecdote in his 2019 book, “Plaintiff in Chief: A Portrait of Donald Trump in 3,500 Lawsuits,” to argue that Cohn taught Trump to see the law “not as a system of rules to be obeyed … but as a potent weapon to be used against his adversaries.” 

“What is clear in the law becomes contestable for Trump,” wrote Zirin.

USA Today tabulated during the 2016 campaign that Trump had been involved in at least 3,500 legal actions in federal and state courts during the preceding three decades.

As president, Trump has repeatedly rushed to the courts to stymie scrutiny. A federal judge last month rejected the Justice Department’s bid to make the U.S. government the defendant, instead of Trump, in a defamation lawsuit brought by a woman who says he raped her decades ago, something the president denies. Even after the Supreme Court ruled this summer that the president is not immune from congressional investigation, Trump’s lawyers have continued to resist complying with subpoenas for his financial records. There are dozens more examples where this comes from. 

At the same time, the Senate has confirmed about 220 of Trump’s judicial nominees to federal courts. Judges nominated by Trump have largely ruled against efforts to loosen voting rules in this election. An analysis by Ann Marimow and Matt Kiefer found that nearly three out of four opinions issued in federal voting-related cases by judges picked by this president were in favor of limits, compared to fewer than 1 in 5 decisions by judges nominated by President Barack Obama. At the appellate level, 21 out of the 25 opinions issued by Trump’s nominees were against loosening voting rules.

Trump offered Amy Coney Barrett the Supreme Court nomination during a private meeting in the Oval Office on Sept. 21, three days after Justice Ruth Bader Ginsburg’s death. Two days later, the president told reporters that it was “very important” his nominee get confirmed before the election so that the court could stop “this scam that the Democrats are pulling,” which appeared to be a reference to mail-in voting. “I think this will end up in the Supreme Court,” Trump said on Sept. 23. “And I think having a four-four situation is not a good situation, if you get that. … Just in case it would be more political than it should be, I think it’s very important to have a ninth justice.”

Democratic presidential nominee Joe Biden urged patience early on Nov. 4 at the Chase Center in Wilmington, Del., as votes continued to be counted. (Video: The Washington Post, Photo: Jonathan Newton/The Washington Post)

In a contrast with Trump, Democratic nominee Joe Biden expressed confidence early Wednesday that he is “on track to win this election” but told supporters just before 1 a.m. that they should be patient and wait for all votes to be counted. “It ain’t over till every vote is counted,” he said.

Quote of the day

“It’s not my place or Donald Trump’s place to declare who’s winning this election,” Biden said in his speech. “That’s the decision of the American people.”

Biden campaign manager Jen O’Malley Dillon called the president’s demand to shut down the count “outrageous, unprecedented and incorrect” in a statement sent at 3:50 a.m. “It is a naked effort to take away the democratic rights of American citizens,” she said. “Having encouraged Republican efforts in multiple states to prevent the legal counting of these ballots before Election Day, now Donald Trump is saying these ballots can’t be counted after Election Day either. … If the president makes good on his threat to go to court to try to prevent the proper tabulation of votes, we have legal teams standing by ready to deploy to resist that effort. And they will prevail.”

Calling into “Fox & Friends” on Tuesday morning, Trump railed against the Supreme Court’s recent order to allow ballots in Pennsylvania to be counted until three days after the election. “We should be entitled to know who won on November 3rd,” he said.

In fact, that is not something Americans have previously felt entitled to. It is certainly not required by law. Election returns are not typically certified for weeks after an election. Because every state has its own voting laws, Trump’s campaign and Republican allies would need to first sue in lower-level courts and appeal up to the Supreme Court. 

Contrary to Trump’s characterization, polls have closed. No new votes are being cast. But Pennsylvania and Michigan are still counting millions of mail-in ballots. Republican election lawyer Ben Ginsberg, who has recently criticized Trump’s efforts to make it harder to vote, said on CNN that what Trump said has no “basis in the law,” adding: “It really is a disservice to all the other men and women on the ballot.” 

Even stalwart GOP allies of Trump agreed there is not a legitimate basis for suing to stop the count of mail-in ballots, which could also disenfranchise votes from active-duty troops. “There's just no basis to make that argument tonight. There just isn’t,” said former New Jersey governor and U.S. attorney Chris Christie on ABC. Former Pennsylvania senator Rick Santorum said on CNN: “I was very distressed by what I just heard the president say.” 

Twitter and Facebook flagged the president’s claims of victory on social media. Responding to the president’s post that Democrats are “trying to STEAL the Election,” Twitter added a note saying that “some or all of the content … is disputed and might be misleading about an election or other civic process.” On Trump’s post claiming that he won “BIG,” Facebook added: “Final results may be different from initial results, as ballot counting will continues for days or weeks.”

Tune in for additional coverage.

I will join Libby Casey and other colleagues in The Washington Post’s newsroom for a special report from 11 a.m. to 1 p.m. Eastern to break down the latest returns and analyze what’s happening in the states we have not called winners in yet. You can stream the broadcast on our home page or on YouTube. Stay with us for ongoing coverage whenever news breaks.

A bad night for congressional Democrats

Senate Majority Leader Mitch McConnell (R-Ky.) said on Nov. 3 that Kentucky was "keeping a front row seat" in the Senate after retaining his Senate seat for a s (Video: Reuters)
Republicans appear to cling to their Senate majority.

Sen. Mitch McConnell (R-Ky.) seems more likely than not to remain majority leader. Democrats need to gain four seats for a majority or three for a 50-50 tie if Biden wins the presidency, which a vice president can break. They are currently netting one. Democrats took out Sen. Cory Gardner (R-Colo.). Arizona Democrat Mark Kelly is leading Sen. Martha McSally (R-Ariz.), but Sen. Doug Jones (D-Ala.) lost. Sen. Thom Tillis (R-N.C.) leads in North Carolina, but it's too close to call. Maine also remains too close to call, and the state may need to use its ranked-choice system if neither candidate breaks 50 percent. Republican incumbents defeated well-funded Democratic challengers in Iowa, South Carolina, Texas, Kentucky and Montana. The GOP held an open Kansas seat.  

The special election in Georgia to finish the term of former senator Johnny Isakson (R-Ga.) will head to a Jan. 5 runoff, with Democrats consolidating behind Raphael Warnock, the pastor at Atlanta’s Ebenezer Baptist Church, while appointed Sen. Kelly Loeffler (R) beat out Rep. Doug Collins (R-Ga.) for the second slot. Democratic challenger Jon Ossoff trails Sen. David Perdue (R-Ga.), but the race is too close to call. It's unclear if it will got a runoff. (Seung Min Kim and Paul Kane)

Several House Democrats lost. 

“Speaker Nancy Pelosi (D-Calif.) and House Democrats on Tuesday appeared on track to secure another two years in the majority. But as votes were being tallied late into the night, the party looked set to fall drastically short of its bullish predictions. … Rather, several Democratic incumbents the party believed were secure found themselves suddenly out of a job. And GOP districts that Democratic leaders had been eyeing for months landed solidly in Republican control,” Rachael Bade, Juliet Eilperin, Steven Mufson and Amber Phillips report. "The early results signaled a strategy miscalculation on their part, as they focused so intently on expanding their majority that they lost some of their own territory.”

Two first-term Democrats unexpectedly went down in South Florida: Rep. Donna Shalala, who was President Bill Clinton’s HHS secretary, lost to a Cuban American journalist she beat by six points in 2018, María Elvira Salazar. Reps. Debbie Mucarsel-Powell, who was born in Ecuador and was the first South American immigrant to serve in Congress, lost to Miami-Dade Mayor Carlos Giménez despite outraising him.

Republicans locked down several seats that national Democrats targeted: “In Indiana, a top target for Democrats, the suburban seat of retiring Rep. Susan Brooks (R) appeared to fall out of reach of Democratic candidate Christina Hale, who trailed Republican Victoria Spartz. And in suburban Cincinnati, Rep. Steve Chabot (R) — another prime Democratic target whose race was considered a toss-up — took the lead for his 13th term representing the Cincinnati area against Kate Schroder. … Rep. Max Rose, the blunt-talking ex-veteran and New Yorker who won in a district Trump carried by double digits, lost. In Oklahoma, Rep. Kendra Horn conceded her race. Meanwhile, Democratic Rep. Abby Finkenauer, who won her seat in northeast Iowa two years ago, fell to state Rep. Ashley Hinson (R), a former journalist. And in the costliest House race in South Carolina, Democratic Rep. Joe Cunningham was defeated by Republican Nancy Mace.

Even Minnesota’s Rep. Collin C. Peterson — who has represented the state’s 7th District for three decades and has withstood a series of GOP-wave elections — lost to former lieutenant governor Michelle Fischbach. Peterson had won in 2016 despite Trump carrying the district by 30 points. The number of Democratic incumbents defeated — which also included Rep. Xochitl Torres Small in New Mexico — came as Republicans held on in vulnerable suburban areas. In Missouri, Rep. Ann Wagner, the leader of the GOP’s Suburban Caucus, held on in a race labeled a ‘toss-up.’ So too did Reps. French Hill of Arkansas and Rodney Davis of Illinois. To be sure, Democrats had some wins. The party early on picked up two open seats in North Carolina, taking full advantage of redrawn congressional maps, as well as GOP retirements.

Perhaps nowhere will Democrats’ disappointment be more pronounced than Texas, a state that has increasingly become competitive and which Democrats thought would become a prime example of the political realignment happening around the nation. … Early in the evening, however, five of those competitive districts that Democrats were eyeing were called for Republicans, including races for Reps. Dan Crenshaw, Van Taylor, Roger Williams, John Carter and even Michael McCaul, whose seat was considered a ‘toss-up.’ Democrats even lost a Texas seat they considered an easy pickup: Texas’s 23rd Congressional District, where moderate Rep. Will Hurd is retiring.” (Republican Marjorie Taylor Greene, who has a history of supporting the baseless conspiracy theory QAnon, won a House seat in Georgia. Greene has said that “Q is a patriot.”)

Democrats faced tougher battles than expected in bids for control of state houses.

“According to partial returns, Democrats were trailing in several races they had hoped would deliver their party the majority in the Texas House. Democrats also were falling short in efforts to take the North Carolina House and Senate. Republicans appeared to expand their influence in state legislatures in Kentucky, Ohio and Rhode Island,” Tim Craig and Phillips report. “Republicans also have unseated the minority leader in the Georgia House of Representatives. … Democrats were still waiting for key races to be called in Arizona, Pennsylvania, Michigan, Minnesota and Iowa, all states where the party also hoped to contend. … 

“In early returns, Democrats appeared to have made some modest gains in the North Carolina legislature, with party leaders claiming they flipped at least one seat in the House of Representatives and another in the state Senate — but Republican leaders said they believe they’re poised to retain majorities in both chambers. In Florida, the GOP appears to have repelled an effort by the Democrats to make inroads in that state’s Republican-controlled government."

  • Sarah McBride, the national press secretary for the Human Rights Campaign, became the first openly transgender state senator in U.S. history after winning in Delaware. (Politico)
  • David Andahl, a Republican candidate for the state legislature in North Dakota, died last month from covid-19. But he still won his race. (Fox 9)

What happened in the battlegrounds

President Trump falsely claimed victory against Democratic presidential nominee Joe Biden on Nov. 4, but key swing states are still tallying ballots. (Video: The Washington Post)
Turnout is on pace to be the highest in more than a century.

“Edison Research estimates more than 157 million ballots have been cast for president, which represents a 65.7 percent turnout rate among eligible voters,” Scott Clement and John Wagner report. “That is up sharply from the 60.1 percent turnout in the 2016 presidential election and would be the highest since 1908 — when 65.7 percent of eligible voters cast ballots. (That was before the 19th Amendment was adopted, guaranteeing women the right to vote). The spike this year follows 2018 midterm elections in which 50 percent of eligible voters turned out — an increase from 37 percent and the highest in more than a century.”

Exit polling showed covid-19 trailed the economy as the No. 1 concern for voters.

“About 2 in 10 voters said the pandemic that has left more than 232,000 Americans dead and upended life around the globe was the most important issue on their minds as they selected a president … About the same number cited racial inequality,” Lenny Bernstein and Joel Achenbach report. “But about one-third said they were primarily motivated by the economy, including 6 in 10 of the voters who supported Trump. … A slight majority of voters said it is more important to contain the coronavirus now, even if the necessary measures hurt the economy. About 4 in 10 said the economy is more important, even if restoring the nation’s economic health hamstrings efforts to limit the spread of the virus. …

“Nearly 89,000 new infections were reported Tuesday, bringing the U.S. total to more than 9.3 million cases. The virus continued its surge through the Midwest and Plains states. Seven states set records for hospitalizations of patients with covid-19 … including Indiana, Iowa, Ohio and Wisconsin."

  • A new study from the American Academy of Pediatrics and the Children’s Hospital Association showed a surge of infections among children: There were 61,447 new cases among kids in the week ending Oct. 29, the largest spike of any week since the pandemic began.
  • Hospitals in the St. Louis and Omaha metropolitan areas have started rescheduling elective surgeries to free up beds, while the head of the Arkansas Hospital Association said at a briefing Tuesday that the state was facing a critical shortage of health-care workers as states furiously compete for nurses.
  • Oxford University hopes to present its vaccine’s late-stage trial results this year, raising hopes that Britain could start rolling out a successful vaccine in late December or early 2021. (Reuters)
The size of Trump’s Florida victory, powered by Latinos, surprised Democrats.

The president's win can be attributed to his inroads among Latinos in Miami-Dade County. Trump lost the county by 30 points in 2016. On Tuesday, he kept his deficit to the single digits, percentage wise. Four years ago, 62 percent of Latinos in the state backed Hillary Clinton, with just 35 percent voting for Trump. This year, Biden held a much narrower edge among the state’s Latino voters, just 52 percent to 47 percent in preliminary exit poll results, Jocelyn Kiley reports. Trump improved his performance among voters ages 30-44 as well: This group went for Clinton in 2016 but roughly split their votes between Biden and Trump this year. Notably, consistent with pre-election surveys, Trump lost some ground among older voters in the Sunshine State compared with four years ago.

Trump’s campaign went from largely ignoring Hispanic voters in 2016 to making them a focus of his 2020 campaign,” the Miami Herald reports. "Within weeks of his inauguration, Trump began making overtures to Cuban Americans in Miami, rolling back [Barack Obama’s] normalization of relations with Cuba’s communist government and warning of the specter of socialism coming to the U.S. … Trump consolidated much of the Cuban-American vote, winning over not only older, more conservative exiles, but also new arrivals who’d leaned toward Obama in 2012. … Trump also made inroads with Latino voters who hail from other parts of Latin America, including Venezuela and Colombia, as he consistently campaigned against the specter of socialism.”

Analysts faulted the Biden campaign for treating the Latino community like a monolith. “‘Latinos’ are not a single electorate; their political attitudes diverge based on where they live, ancestry, [education], income, gender, faith, etc." tweeted Jose Del Real. “There’s endless political differences between Cubanos, Mexicanos, Argentinos, Dominicanos, Central Americans,” Esmeralda Bermudez wrote. “Please think twice before you lump Latinos into a single category and stop chasing the ‘Latino vote’ unicorn each election," she said of the Los Angeles Times.

Trump's win in Texas crushed Democratic dreams again.

“While Biden performed well in the state’s metropolitan regions, he struggled to gain steam among Hispanic and Latino voters in the Rio Grande Valley and to overcome Trump’s strength in the rural areas of the state, the Texas Tribune reports. 'A Democratic presidential candidate has not won statewide in Texas since 1976. While few in the party anticipated Biden would win Texas on Tuesday, they expressed hope that a close enough margin could help down-ballot candidates and lay the foundation for future Democratic gains across the state. But many competitive races in the state House remained in limbo.”

Several ballot measures to loosen drug laws passed. 

Voters in New Jersey and Arizona approved a constitutional amendment to legalize recreational marijuana, ABC News reports, while South Dakota passed legalized medical use. Mississippi voters approved an initiative to establish a medical marijuana program for patients with debilitating conditions. D.C., meanwhile, appeared to approve a ballot question to decriminalize psychedelic mushrooms, Justin Wm. Moyer reports. And Oregon became the first state in the nation to decriminalize possession of small accounts of street drugs, including heroin and cocaine, per the Oregonian.

  • Abortion rights were on the ballot in two states. In Colorado, voters rejected Proposition 115, which would’ve banned late-term abortions. In Louisiana, voters passed Amendment 1, which would add language to the state constitution stating that it does not recognize a right to an abortion. (Samantha Schmidt and Emily Wax-Thibodeaux)
  • Mississippi voters approved a new state flag design with a magnolia flower on a blue background and red and yellow outer stripes — retiring a 126-year-old banner that featured the Confederate battle emblem. (Meryl Kornfield)
  • Californians passed Proposition 22, which would exempt gig-economy giants Uber, Lyft and DoorDash from reclassifying their drivers as employees. The companies, along with Postmates and Instacart, spent around $200 million in support of the proposal, which allows them to bypass a state law intended to provide benefits and job protections for their drivers. (WSJ)
  • Voters in Arizona passed Proposition 208, an income tax surcharge to provide more money for public schools. (Arizona Republic)
  • Floridians passed Amendment 2, which would raise the minimum wage to $10 per hour next September and then increase it by $1 annually until it reaches $15 in 2026. (NYT)
  • Rhode Island passed Question 1, which removes “Providence Plantations” from the state’s official name. (Providence Journal)
Voters contended with scattered equipment outages and crowds. 

“But as the polls began closing across the country, a portrait emerged of a far smoother Election Day than the nation had braced for amid a pandemic that upended how Americans cast ballots,” Amy Gardner, Elise Viebeck and Michelle Ye Hee Lee report. “On Tuesday, voting was largely brisk and steady, with election administrators and voters alike marveling at the relative ease with which the day unfolded after a spring and summer of chaotic primaries." 

Here are some of the reported hitches: The Philadelphia Election Task Force fielded more phone calls about online misinformation than actual incidents at polling sites, according to District Attorney Larry Krasner (D). Poll workers at a North Philadelphia polling location raised concerns about the security of two voting machines after discovering broken seals meant to lock the area of the machines where paper ballots are stored. A city election judge said the issue was an “honest mistake," and voters were allowed to submit provisional ballots. Pennsylvania Republicans sued the secretary of state late in a bid to temporarily block the counting of votes cast by people who were allowed to correct mistakes on their mail ballots.

A burst water pipe inside the State Farm Arena in Atlanta delayed the counting of several thousand absentee ballots, but authorities said no ballots or machines were damaged. A snow squall in Manchester, N.H., slowed down voting, while voter check-in systems in cities such as Columbus, Ohio, and Philadelphia also lengthened the process. The Nevada Supreme Court unanimously denied a GOP request to halt the counting of some mail ballots in heavily Democratic Clark County pending the party’s appeal of a lower-court decision that found the county’s procedures lawful. Nevada Attorney General Aaron Ford (D) cited a few scattered “hiccups” with electronic voting machines that were quickly resolved. The North Carolina State Board of Elections extended voting hours at 10 precincts in four counties because they opened late or faced technical problems.

“The U.S. Postal Service turned down a federal judge’s order late Tuesday afternoon to sweep mail processing facilities serving 15 states, saying instead it would stick to its own inspection schedule. The court order came after the agency disclosed that more than 300,000 ballots nationwide could not be traced,” Jacob Bogage and Christopher Ingraham report.

The civil unrest feared in the nation's capital did not materialize.

“A carnival-like atmosphere pervaded the streets around the White House early Tuesday night, but the scene gradually grew more tense and gave way to moments of friction as the outcome of the election remained in flux … Just a handful of supporters of Trump were among the crowd,” Joe Heim, Rachel Chason, Kyle Swenson and Justin Jouvenal report. “At one point, there was a tussle between police and a man who was at Black Lives Matter Plaza, though it was not immediately clear what prompted it. In a separate incident, video posted to social media showed two men wrestling on the ground at the plaza."

Commentary from The Post’s opinion page:
  • The Editorial Board: “What’s more important than a timely election result: Counting all the votes.”
  • Gary Abernathy: “To be surprised by how the night unfolded is to have believed, without evidence, that pollsters had corrected their 2016 errors and that Biden’s victory was assured. Regardless of the final outcome, polling itself was possibly Tuesday’s biggest loser.”
  • Michael Norris: “Will this election permanently change how we vote? Let’s hope so.”
  • Dana Milbank: “The voters have spoken. Now we’re going to hear from the lawyers.”
  • Karen Tumulty: “The 2020 election will be remembered as a testament to voters’ resilience.”

Social media speed read

Republican Madison Cawthorn, 25, is set to become the youngest congressman in recent history after winning the open seat formerly represented by White House Chief of Staff Mark Meadows in North Carolina. Here's how he celebrated his victory:

Voters can have unusual motives:

Hillary Clinton voted on Election Day:

Videos of the day

“The Daily Show’s” Jordan Klepper talked to voters in New York: 

Kids explained why they are looking forward to being able to vote:

Dave Jorgenson talks to the winners of the KidsPost election contest to find out why your vote matters and why they are looking forward to turning 18. (Video: The Washington Post)