TIME Talks to Trevor Potter on Tallying Mail-In Ballots

In the wee hours of the morning after Election Day, state officials were still tallying millions of mail-in and absentee ballots in key battleground states, and the presidential race remained too close to call. But that didn’t stop President Donald Trump from gathering his supporters in the East Room of the White House, falsely asserting he had already won, and promising he would challenge future election results in court. “We’ll be going to the U.S. Supreme Court,” he said. “We want all voting to stop. We don’t want them to find any ballots at 4 o’clock in the morning and add them to the list.”

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Election-law experts from both sides of the aisle dismissed the Trump team’s suggestion that the ongoing vote count was untoward. State election officials routinely take days to finish counting ballots, and with more than 90 million Americans requesting mail-in ballots because of the pandemic, delays were widely expected. “It’s contrary to law and the way we run elections to suggest we should stop counting votes because one of the candidates is ahead and doesn’t want to fall behind,” says Trevor Potter, former general counsel for John McCain’s presidential campaigns.

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The state has already been the target of multiple Republican-backed lawsuits, with mixed results. In mid-September, the Pennsylvania Supreme Court ruled that mail-in ballots could be accepted through Nov. 6. Republicans tried twice to get the U.S. Supreme Court to intervene, and while the Justices declined to rule, they left open the possibility of hearing the case at a later date. If Pennsylvania is very close, says Potter, lawsuits are much more likely to occur because “both candidates will be fighting over which ballots to count.”

Trevor Potter is also a Member of the Political Law Group at Caplin & Drysdale, Chartered.

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