Trump: We'll send in lawyers if Pennsylvania election is unfair

President Donald Trump says he would likely take legal action if he believes Tuesday's election is conducted unfairly, especially in Pennsylvania.

"As soon as that election's over, we're going in with our lawyers," Trump told reporters Sunday just before a rally in Hickory, North Carolina.

Trump did deny a report in Axios that he planned to declare victory if he is ahead in Pennsylvania and enough other states on Election Day, even if mail-in ballots were still being counted.

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But he also said it would be unfair for Pennsylvania and other states to count ballots after Tuesday, as they plan to do. At least five counties in Pennsylvania have announced they will not be counting absentee and mail-in ballots until the day after Election Day.

“I don’t think it’s fair that we have to wait for a long period of time after the election," Trump said, and it would be “terrible thing."

Pennsylvania Attorney General Josh Shapiro said on Twitter that "our elections are over when all the votes are counted."

Citing previous legal victories over the Republicans, Shapiro tweeted at Trump: "But if your lawyers want to try us, we’d be happy to defeat you in court one more time."

Some ballots regularly aren't counted until after Election Day

States never count all the votes by Election Day, especially absentee and military ballots. This year, given the emphasis on mail-in voting because of the COVID-19 pandemic, some states have said they will accept ballots for days after Election Day. North Carolina, one of the states where Trump spoke Sunday, has said it can count ballots received as late as Nov. 12.

"Under no scenario will Donald Trump be declared a victor on election night," Biden campaign manager Jen O'Malley Dillon said during a press briefing. Even if Trump sweeps battleground states in the South that could have their results earlier, he would still be short of 270 electoral votes.

Bob Bauer, senior adviser for the Biden campaign and former White House counsel for Barack Obama, said they are "fully prepared for any legal hijinks of one kind or another" but "aren't worried about it." 

"The case that he is sending over when the voters have spoken is a case that no lawyer can win and his will not win it," Bauer said.

Pennsylvania is counting all absentee ballots received by Nov. 6 after the U.S. Supreme Court last week refused a challenge from state Republicans for a second time to reimpose an Election Day deadline.

However, absentee ballots received after Tuesday will be segregated from those received earlier. If the state turns out to be pivotal, the high court could consider the state GOP's challenge after the election.

Pennsylvania and Wisconsin don’t begin processing absentee ballots until Election Day. Michigan provides only a one-day head start. The Republican-controlled legislatures in these states opted not to change their laws to allow pre-election processing despite pressure from local election officials.

President Donald Trump speaks to the press at Charlotte Douglas International Airport on Nov. 1. Trump vowed to again defy the polls as he sprinted through five swing states in a blitz of campaigning against Joe Biden with just two days left before the US presidential election.

It means Trump is expected to hold a big lead when initial results – which include predominantly in-person Election Day votes likely favoring Trump – are posted on election night in Pennsylvania. Biden is expected to begin closing the gap when absentee ballots are counted, but it could take several days or even weeks to complete.

However it comes down, Trump cannot simply declare himself the winner of the election; it's up to officials to Pennsylvania and other states to declare the winners of their electoral votes.

More:North Carolina Board of Elections: 97% of ballots to be tallied and reported on election night

The theory that Trump would preemptively declare victory hinges on many variables. For one thing, he would need to be ahead in one or two states necessary to put him over the 270 electoral votes needed for reelection.

Polls show Trump in tight races with Democrat Joe Biden in a number of states he needs, including Florida, North Carolina, Arizona, Michigan, Wisconsin, Ohio and Iowa, as well as Pennsylvania.

It could be days before the final results in any of those states are known.

As for litigation, some analysts question whether federal courts would get involved in the counting of ballots. The Supreme Court case of 2000 between George W. Bush and Al Gore involved the recounting of votes in Florida, not the initial counting.

Many political analysts said Trump is setting the stage to challenge the credibility of the election should he lose.

"It's a story about Trump seeking to undermine faith in democracy," tweeted polling analyst Nate Silver, editor-in-chief of the website FiveThirtyEight.