Carl P. Leubsdorf: Republicans test a threat to November's elections

This past month in California, it was business as usual. In November, it could cause a national crisis.

"IT" is the state's excruciatingly slow count of its hundreds of thousands of mail ballots. It happened again after the state's June 2 primary elections.

But though some leads switched hands as the mail ballots were tallied, nothing really unexpected took place. Nor was there anything surprising in the false explanation that President Donald Trump gave for the delay.

"Do you know why they're doing that?" he asked host Kristen Welker, when the subject came up June 14 on NBC's Meet the Press. "Because they're cheating on the election."

To Trump, late counting of absentee ballots is always an excuse to claim fraud, whatever the facts. And his congressional allies quickly joined the chorus in what The New York Times' Jamelle Bouie called "a dress rehearsal for what will probably happen in November."

"I'm not saying it's rigged," House Speaker Mike Johnson said. "I'm saying it stinks to high heaven, and everybody knows that."

In Los Angeles, meanwhile, the office of the Trump-appointed U.S. attorney announced it has opened "multiple election fraud investigations" into the elections.

Several valid reasons exist for California's lengthy counting delays, none of them fraud. They include the massive number of absentee ballots in the nation's largest state, the fact that ballots can arrive seven days after Election Day if postmarked on time and the state's cumbersome processing procedures, including allowing voters to fix minor errors on mail ballots. As a result, it often takes weeks to complete the count.

That's likely to happen again in November when the state's voters fill its 52 seats in the House of Representatives -- as well as top state offices – just like other voters will be doing throughout the country.

The difference is that the number of those 52 seats that the Democrats win in California could well determine if they gain control of the House in the next Congress.

At present, they hold 42 of them – and are three short of an overall majority. Thanks to their voter-approved redistricting plan, the Democratic total could reach as high as 48 of the 52.

But we won't know that for sure on Election Night, or for many days thereafter, meaning the incomplete tally from the rest of the country - without California's results – may well show the Republicans ahead – but short of a majority.

In that circumstance, it is easy to imagine that Trump – who has vowed to do whatever necessary to keep the GOP majority – and other top Republicans may not only claim victory prematurely but allege that any late California Democratic victories are somehow tainted and need to be probed.

A provision in the Constitution may inadvertently lend them a hand. Under Article I, Section 5, "Each House shall be the judge of the Elections, Returns and Qualifications of its own Members." A law called the Federal Contested Elections Act provides the procedures for defeated candidates to levy challenges.

It's easy to see the Republicans seeking to retain their majority by challenging a number of California results, leaving it initially up to the outgoing, GOP-controlled House to investigate, even if the completed tallies show that – with the disputed races – that the Democrats will control the new House.

Hopefully, it won't come to that. One special circumstance that slowed this month's primary count was that many Democrats delayed casting their ballots because of uncertainty over which of their many gubernatorial hopefuls was the strongest general election candidate.

Democratic leaders have already said they will urge November mail voters to vote as soon as possible to reduce the number coming in late.

And though some counting delays are almost inevitable, the tally should be finished well before the new Congress meets next January. 3.

In the meantime, there is another pending threat to the widespread use of mail ballots in California and other states. It's part of Trump's effort to insert federal control into what the Constitution says is up to the states.

In an executive order this spring, Trump directed the Post Office to issue a rule limiting its receipt and delivery of mail ballots to voters on registration lists supplied by the states and approved by the Department of Homeland Security. Only 15 Republican-dominated states have complied, and most others have joined legal actions to prevent the order's implementation.

But the allegedly independent Post Office has proposed a rule to implement Trump's directive. Unless blocked by the courts, that could mean its refusal to deliver any California mail ballots.

A Trump-appointed federal judge in Washington, D.C., refused to block the president's order on grounds no one had yet been impacted by it. But he is expected to revisit his ruling.

Meanwhile, in Boston, the federal judge in a similar case rejected a government motion to dismiss a challenge to the Post Office action. But the judge has not yet issued an injunction to block it.

Until recently, Republicans were more apt to take advantage of mail voting than Democrats. But that changed dramatically in 2020 when Democrats, fearful the COVID pandemic would keep many health-conscious voters home, made a concerted effort to encourage mail voting.

That made it a prime Trump target. But though neither he nor anyone else has proved it leads to fraud, its widespread use in California could become a crucial issue next November.

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