WASHINGTON — When the coronavirus pandemic was just starting to upend life in the United States in March, Bob Ferguson, the attorney general for Washington state, sent an email to supporters warning President Donald Trump might use the pandemic to try to delay the November presidential election.
Republicans denounced the message as grandstanding by Ferguson and scoffed at the idea that there was any threat of Trump trying to interfere with the Nov. 3 election date. A local Fox affiliate in Seattle, Q13 News, quoted Trump campaign spokesperson Marc Lotter as saying at the time that the suggestion that Trump would try to delay the election was ”the dumbest thing I have ever heard.”
But Ferguson took it seriously enough that he directed lawyers in his office to draft a memo analyzing how Trump might try to claim legal authority to change the date, and how they could sue to stop it, something his office has done before with presidential threats, Ferguson told BuzzFeed News in a phone interview on Thursday. Now that Trump has publicly floated the idea of a delay — something he lacks legal authority to do on his own — Ferguson said his office is dusting off the memo for a refresh.
“We don’t wait for something bad to happen, we anticipate what [Trump is] going to do, and try to prepare,” Ferguson said. “I have no doubt that if the president actually tries to move the election, my team would be ready to file a legal challenge in 24 hours.”
Trump kicked off Thursday morning with the following tweet: “With Universal Mail-In Voting (not Absentee Voting, which is good), 2020 will be the most INACCURATE & FRAUDULENT Election in history. It will be a great embarrassment to the USA. Delay the Election until people can properly, securely and safely vote???”
The president cannot take action on his own to delay a presidential election, BuzzFeed News explained in March when there was speculation about whether Trump would try to do so. Conservative and liberal election law experts agree on this. Under the US Constitution, Congress is responsible for setting the election date, and Election Day is held on “the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President.”
Top Republicans in Congress made clear in response to Trump’s tweet on Thursday that they did not support changing the election date, BuzzFeed News reported.
Still, Ferguson and other Democratic state attorneys general denounced Trump’s tweet and some, like Ferguson, said they were prepared to go to court if he tried. New York Attorney General Letitia James released a statement saying her office was “examining all legal options” and “will lead in fighting any of President Trump’s efforts to delay the election.”
Massachusetts Attorney General Maura Healey and Oregon Attorney General Ellen Rosenblum, cochairs of the Democratic Attorneys General Association, released a statement saying their members “will fight ANY effort to delay the November election or deny people the right to vote.”
Ferguson said he routinely has lawyers in his office brainstorm legal strategy and draft memos as soon as there’s an inkling the president is considering action that they believe may be unlawful. Before Trump took office in January 2017, for instance, Ferguson said they had been researching legal strategies in case Trump made good on his campaign pledge to ban Muslims from coming into the United States.
When the administration rolled out what would end up being the first of several attempts at using executive action to restrict travel to the United States from predominantly Muslim countries in late January 2017, Ferguson’s office filed the first state challenge.
Ferguson declined to get into the specifics of what his staff came up with in the March memo anticipating an effort by Trump to delay the election. He said lawyers in his office were tasked with trying to predict what type of presidential power Trump could try to claim — under the National Emergencies Act, for instance — and then come up with legal arguments against those. They don’t usually draft full lawsuits in advance, he said, since it’s hard to structure those until the administration announces what it’s actually doing.
BuzzFeed News contacted Lotter for comment about his March statement that the notion that Trump was planning to try to change the election date was the “dumbest thing” he had “ever heard.” The Trump campaign responded with a statement from campaign spokesperson Hogan Gidley that did not address Lotter’s comment, but said that Trump’s tweet was “just raising a question” about states using mail-in voting for the presidential election.
“Universal mail-in voting invites chaos and severe delays in results, as proven by the New York Congressional primary where we still don’t know who won after more than a month,” Gidley said.
Absentee ballot counting delayed final results in a number of races in New York’s June 23 primary, and a handful are still pending. Several states are looking to expand mail-in voting due to the coronavirus pandemic. Trump, who has trailed in recent polling in key swing states, had repeatedly claimed, without evidence, that mail-in voting will lead to election fraud.
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