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This article was originally published on Daily Signal - Elections. You can read the original article HERE
It’s been said that the greatest trick the Devil ever pulled was convincing the world that he didn’t exist.
Most of us remember the national election of 2020: The COVID-19 pandemic, sudden changes to election procedures, mysterious mail-in ballots, allegedly hacked voting systems, and legions of lawyers filing scores of lawsuits.
I think we all remember the aftermath in 2021, as well. Thousands of angry conservative voters traveled to Washington, D.C., and entered the Capitol to protest the certification of the election after a surprise upset led to Joe Biden becoming the president.
Then came the speculation: Did the Chinese hack voting machines to flip the vote in favor of Biden? Were countless mail-in ballots shoved into voting machines in the dead of night?
Was Joseph R. Biden really the most popular presidential candidate in United States history even after running his entire campaign from a basement in Delaware?
I’ve prosecuted election fraud cases, but I do not know the answer to any of those questions. That’s not what this article is about. It is about why you should never be afraid to question the results of an election.
‘I’m Not a Conspiracy Theorist, But … ’
Having been in the Texas Attorney General’s Election Integrity Division, I have had more than a few conversations with people who almost seem to feel guilty about talking to me about election concerns. They usually start out with the other person saying, “Well, I’m not a conspiracy theorist but …”
That additional qualifier has never surprised me, considering how many risks there are associated with questioning the results of elections.
The moment anyone is in the vicinity of someone who claims an election was stolen, they risk becoming an “election denier.”
A few notable attorneys who filed election contests have been threatened with losing their license to practice law and even imprisonment. More than 500 of the 1,265 people who were arrested after marching on the Capitol on Jan. 6, 2021 are—more than three years later—still awaiting trial for what may ultimately amount to a misdemeanor conviction.
The rest of us are constantly told by “experts” that there was nothing wrong with the 2020 election.
But what if those experts were wrong?
Reprimanding Fulton County
Recently, the Georgia State Elections Board voted 2-1 to reprimand Fulton County after finding significant issues with the vote tally in the 2020 presidential election. The board’s investigation concluded there had been over 140 separate violations of election laws and rules not only related to how Fulton County tallied the initial vote, but also how it conducted its recount.
It should be noted that the only vote against reprimanding Fulton County was from board member Janice Johnston and that was only because she felt the reprimand didn’t go far enough. She wanted a more comprehensive investigation conducted by the Georgia Attorney General’s Office.
Out of a plethora of issues in how the election was conducted, the investigation also found that there were more than 3,000 duplicate ballots scanned during the recount. The Georgia Secretary of State’s general counsel declared that it’s inconclusive whether or how many of the 3,000 duplicates were included in the tabulated results.
There were also more than 17,000 ballot images that are allegedly missing from the recount.
Keep in mind that Fulton County’s initial hand recount shortly after the election awarded 1,300 additional votes to Trump, and while the current numbers would not change the outcome of the election, an open question of whether there are potentially more than 4,000 votes not properly accounted for in a swing state election that was decided by only 11,000 votes is—to say the least—problematic.
The Georgia secretary of state’s position appears to be that the initial count, the hand recount, and the machine recount are all relatively similar and therefore not a cause for alarm. When Secretary of State Brad Raffensperger was asked directly about allegations of election fraud, he said, “No, the numbers are the numbers … . The numbers don’t lie.”
That seems like a difficult conclusion to reach when his organization seems to not be sure what the numbers are.
It also somehow seems worse to imply that more than 140 violations of election laws were committed by the election administrator’s office for the state’s most populated county by incompetence rather than malfeasance.
Compare Raffensperger’s lack of enthusiasm with the efforts to remove Sidney Powell’s law license, or the criminal indictment of former President Donald Trump currently pending in Fulton County, both of which stem from the actions they took (or are alleged to have taken) in response to issues arising out of the way Fulton County ran the 2020 presidential election.
In fact, the results of Georgia’s inquiry stand in contrast to the popular talking point that Trump’s allegations were so spurious that even individuals in his own administration refuted his claims of election irregularity.
Internal Dissenters’ Willful Blindness
For example, Christopher Krebs, the former director of the Cybersecurity and Infrastructure Security Agency of the Department of Homeland Security, who claimed on CBS’ “60 Minutes” that the 2020 election was “the most secure in American history.”
Not only does it now seem that Krebs was wrong, but less than a month after making that statement, it was publicly reported that Krebs and his agency had been unaware of what could be one of the largest cyberattacks of our national infrastructure in history.
There was also then-Attorney General Bill Barr publicly declaring on Dec. 1, 2020, that the Department of Justice and the FBI had not uncovered evidence of “widespread voter fraud that would change the outcome of the election”—after an investigation he had called for only three weeks prior.
In Texas, after we received an allegation of election fraud, our team of investigators and attorneys—who are already familiar with Texas election law—would seek to contact the election administrator for the county the allegation originated from to obtain their records of the election. Those records were often voluminous and would take time to review.
We would then make attempts to speak to witnesses, including the voters, to determine whether there had been fraud or irregularities in the voting process. We would investigate whether those who cast suspicious ballots were qualified to vote, whether they typically voted by mail or in person, whether their vote in that election came from their listed home address or somewhere else, whether they are even aware a vote was cast in their name, and sometimes even whether they are alive or deceased.
Consider that there were 81,139 votes—in Nevada, Wisconsin, Georgia, and Arizona, combined—which separated Trump from Biden in the election. Among those four states, there were approximately 12,883,742 total ballots cast. Neither of those numbers would include instances where ballots had been destroyed.
The time it took for Georgia to issue its findings on Fulton County alone took three years. At the time of Barr’s statement, the FBI only had a total of 13,245 special agents in the entire bureau, spread out across the United States and other parts of the world. Even if the Justice Department devoted all its resources and limited the scope of their investigations to the largest counties of those four states, it would have taken several weeks just to compile evidence, much less come to a definitive conclusion just for one of those states.
There is also the question whether Barr even wanted the Department of Justice to be involved. The U.S. attorney for the Eastern District of Pennsylvania, William McSwain, claimed that Barr told him to stand down on investigating election fraud allegations, instead ordering him to refer any complaints to the state of Pennsylvania.
While Barr disputes McSwain’s account, other witnesses testified under oath to receiving the same guidance.
So, when Barr said he had not seen evidence sufficient to conclude that fraud would have changed the results of the election, it seems that is exactly what he meant. He hadn’t seen fraud that would change the outcome. That would be difficult to find for someone unfamiliar with election fraud—and not interested in looking for it.
So-Called Fact-Checkers’ Echo Chamber
Nevertheless, Barr’s statements are a common talking point for media “fact-checkers,” who are adamant that election fraud is a myth.
Take for example how fact-checkers handled allegations of Jesse Morgan. Morgan was a post office contractor who claimed that 288,000 pre-filled ballots had been shipped into the state of Pennsylvania in trailer that somehow mysteriously vanished after being delivered to a post office.
As a former prosecutor, the fact that the investigation by the U.S. Postal Service and the FBI only concluded that Morgan’s claims could not be corroborated, while Morgan himself was never charged with making a false statement to a federal agent seems to me to mean that the investigation was inconclusive. That is, neither confirming, nor denying his account.
If that’s the case, then we are left with the notion there is no security camera footage, records, manifests, receipts or explanation for a missing post-office trailer allegedly containing 288,000 ballots that was left inside a secured post-office motor pool, or that it was just a shoddy investigation.
That didn’t stop the Dispatch and PolitiFact from concluding that Morgan’s allegations were false in their entirety based on the aforementioned sound bite from Barr, and the Postal Service’s largely redacted report.
More dubious fact-checks come from The New York Times. It fact-checked 15 separate statements from Trump about the 2020 election. In the interest of brevity, I’d like to go summarize what I personally took from just a few:
- Trump claimed surprise ballot dumps changed the outcome of the election overnight. The Times fact-checked this as false, because there were just a lot of mail-in ballots that took a long time to count.
- Trump claimed mail-in ballots were a corrupt system. Times fact-checkers concluded this was false, because experts say voter fraud is rare.
- Trump claimed the recount in Georgia was meaningless because there was no signature verification. The Times concluded this was also false, before oddly explaining how signatures cannot be verified during recounts because ballots are separated from the carrier envelope that contains the voter’s identifying information.
- Trump claimed the Pennsylvania secretary of state and the state Supreme Court abolished signature verification requirements for mail-in ballots. The Times said this was misleading, because the Pennsylvania State Election Code never required signature verification in the first place.
- Trump claimed that in Georgia only 0.5% of ballots were rejected in 2020 compared with 5.77% in 2016. The Times said that was also misleading, because the Massachusetts Institute of Technology believes the 5% total increase in accepted ballots was likely just due to the addition of a curing mechanism for Georgia mail-in ballots.
Other popular rebuttals stem from the 2020 election contests. The 2020 general election was easily the most litigated in my lifetime. According to some news outlets, Trump and Republicans filed over 60 election challenges, losing almost all of them.
The results of the 2020 election cases always seem to be the easy way out of any debate over the election results. Why wouldn’t they be? The judges found there was no election fraud. Case closed.
Except they kind of didn’t.
Democratic Operatives and the ‘Steele Dossier’
For background, a large bulk of the work against the 2020 presidential election contests was done by the law firm of Marc Elias. Formerly of Perkins-Coie, Elias is notably famous (or infamous) for his involvement with the entirely debunked opposition research against Trump known as the Steele Dossier. Ironically, Elias also thinks Russians intervened in the 2016 election to defeat Hillary Rodham Clinton.
In addition to being at the forefront of litigating election lawsuits on behalf of Democrats, Elias’ law firm also seeks “favorable advisory opinions” from the Federal Election Commission on behalf of Democratic candidates. They are unashamedly pro-Democrat, and to put it mildly, they are very committed to what they do.
Elias’ win record speaks for itself, and I’m not discounting his firm’s successes, but the 2020 general election was an easy playing field. In election contests, “the tie goes to the runner,” and all he and his team have to do to win is make sure that none of the allegations of fraud in any of the election contests are considered sufficient to warrant discounting the results.
This was made all the easier because judges have a hard time with any case involving an election.
Legal Timeliness and Standing
Take for example Trump v. Biden, where the Wisconsin Supreme Court ruled Trump’s suit was barred by the legal doctrine of laches. That is to say that Trump’s allegations were reasonable, but the case had been brought too late for courts to act.
To quote the court, “the time to challenge election policies such as these is not after all ballots have been cast and the votes tallied.”
Essentially, a candidate shouldn’t wait to get cheated out of an election before they sue over it.
A similar result occurred in Kistner v. Simon in Minnesota. In that case, the petitioners filed their lawsuit within days of the postelection review, but the court concluded two claims were barred as they should have been brought before the election, and for the third claim, the court found the petitioners failed to provide service to the other county officials required by Minnesota election laws.
In Arizona’s Ward v. Jackson, the Arizona Supreme Court classified instances where a “duplicate ballot did not accurately reflect the voter’s apparent intent as reflected in the original ballot” as a mere error, and held that it did not believe there were enough of these “errors” to overturn the results of the election.
Also stated by the court: “Where an election is contested on the ground of illegal voting, the contestant has the burden of showing sufficient illegal votes were cast to change the result.” It is not enough to prove there was fraud, you must prove there was enough fraud to change the outcome.
In Donald J. Trump for President v. Way, the New Jersey federal district court declined to hear a challenge to the New Jersey governor’s executive order No. 177, which directed the state to send mail-in ballots to all registered voters and extended ballot counting to all ballots received up to 48 hours after the polls closed on Election Day.
After the suit was filed, the Democrat-controlled state legislature passed a bill codifying the governor’s decree, thereby making it law. One of the bill’s co-sponsors allegedly claimed that the bill’s purpose was to “undermine the Trump campaign’s lawsuit.”
Changing the Rules in the Middle of the Game
The court’s ruling in that case was that it would defer to the state on whether to suddenly change election rules in response to the COVID-19 pandemic.
Sidney Powell’s suit in Wisconsin, Feehan v. Wisconsin Elections Commission, was dismissed after the court ruled a Wisconsin voter and potential elector lacked standing to contest the election process in Wisconsin. The federal District Court of the Middle District of Pennsylvania came to the same conclusion in Donald J. Trump for President Inc. v. Boockvar. The result was the same in Nevada in Donald J. Trump for President Inc. v. Cegavske.
Also from Nevada is my favorite postelection opinion by far, Law, et al. v. Whitmer, et. al. In that case, the judge stated that he considered witness declarations—typically statements submitted under the penalty of perjury—to be “hearsay of little or no evidentiary value,” citing that per Nevada’s election code, election contests “shall be tried and submitted so far as may be possible upon depositions … .”
At the time of this suit, America was still reeling from the COVID-19 pandemic and many courts were not even permitting contested hearings out of fear that several people in an enclosed space listening to live testimony could spread the virus.
That prohibition often extended to requests to take someone’s deposition, which was a hurdle I ran into in some of my own cases. Before reading this opinion, I would have thought that “so far as may be possible” under those circumstances would be broad enough to increase the viability of sworn statements to be presented as evidence. I would have been wrong.
Considering the court’s order only gave the contestants from Nov. 17 to Dec. 3 to gather their evidence and granted only 15 depositions to both sides, it’s not clear what evidence the judge expected them to be able to marshal.
I’m not insinuating there was bias, but it feels that way, reading the 10 paragraphs devoted to just bolstering the credibility of the defense expert compared to the five paragraphs the judge spends on the why he felt the entirety of the evidence presented by the other side was inadequate.
Procedural vs. Evidentiary Reasons
The bottom line is, a significant number of the election challenges brought in 2020 appear to have been thrown out for procedural reasons, rather than evidentiary ones. In the few cases where election fraud was discussed, the courts seemed to consistently hold that those bringing the case hadn’t shown enough fraud. Just don’t tell the fact-checkers at Reuters that.
Going into the election of 2024, it’s not even clear who will be able to successfully contest a national election. Neither voters nor electors appear to have standing to contest an election in their own state, and at least a state attorney general and House Representatives do not have standing to challenge elections in other states.
Those who do make it past the standing requirement only have weeks to depose as many witnesses as it takes to prove that enough fraudulent ballots were counted to change the result of the election.
If you’re unfamiliar with an election case, that could potentially mean finding thousands of fraudulent ballots in less time than it would take to contest a speeding ticket. Good luck with that.
The silver lining in all of this is that a byproduct of the controversies surrounding the 2020 presidential election is that we are at least talking about it. And the public outcry has been substantial.
Once a niche topic, election integrity is now at the forefront of public discourse, and several states—including Georgia—are engaged in massive undertakings to identify vulnerabilities in their electoral process and have already taken steps to pass new laws seeking to prevent election integrity issues.
When Texas ran into hurdles with its high criminal court declaring it was unconstitutional for Attorney General Ken Paxton to unilaterally prosecute election fraud, the voters responded by voting out three of the eight justices who signed on to the opinion, and they were the only three up for reelection.
I do not know what happened in 2020, and I don’t know what’s going to happen in 2024. But I do know election fraud exists, and it has been around for a long time. So long as there are ways to cheat the system to obtain power, there will be people seeking to take advantage of them.
I also know that behind every successful election challenge, investigation, prosecution, and legislation are individuals courageous enough to come forward and question the results when something seems off.
That courage is becoming less and less rare after 2020, and it will be a force to be reckoned with in 2024.
That’s why I encourage everyone to never be afraid to question the results of an election when they see something suspicious, and act on those suspicions.
Maybe you win, maybe you lose, but the only way it will change is if you’re not afraid to talk about it.
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