Step Back from This Battle but Fight for the Future

As a lawyer I have fought some hard-won battles and I have suffered a few excruciating losses.  There have been one or two times when I knew absolutely that I/my client were right and yet we lost.  That is hard. 

I think for Republicans and others who question the fairness of the election that this is one of those times.  Like many I believe there was significant cheating or dishonesty in this election and that many illegal ballots were counted.  Because once counted it is impossible to know for whom those illegal ballots were cast, recounts do little; they find the occasional counting error but not the fraud regardless of whether that fraud was minimal or widespread, committed by rogue individuals acting alone or due to some greater coordinated plan.

It is next to impossible to prove election fraud, especially the mail-in fraud that almost certainly occurred or the counting machine tampering that has been alleged.  Moreover, even if proven, it is impossible to prove what the legitimate vote totals would have been.

Yes, there is proof that some vote counting was intentionally deceptive, that some votes that should not have been counted were nonetheless counted and others that should have been counted were not.  But did that swing the election?  There is no proof of that; it is impossible that there could ever be proof of that.

Those who know they are right about the fact that illegal votes were counted are fighting the good fight.  Some are fighting because they believe the presumptive result is inaccurate and want it overturned, some are fighting because they simply want a clear declaration of the improprieties that occurred, and others are fighting to protect the vote in the future. 

The fight is properly playing out in the courts and the fight on behalf of free and fair elections is losing.  The cases asserting fraud are not unreasonable and there is some evidentiary support.  The problem is, because of the very nature of the fraud alleged, there cannot be sufficient evidence to move forward.  As to the Texas case that was dismissed by SCOTUS, that dismissal was expected based on precedent.  That does not mean that Texas should not have brought the case – lawyers sometimes bring cases in which they know they are not likely to prevail in a hope of convincing the Court to reexamine the law.  SCOTUS chose not to do that in this case.

Some (mostly Democrats and Biden supporters) refuse to believe there were any irregularities at all.  Some (mostly Republicans and Trump supporters) will never be convinced that Trump did not win.  The truth is likely somewhere in between.  Yes, there were irregularities and some of those irregularities may well have amounted to fraud.  Trump may well have won more electoral votes and Biden fewer than the results show; but that does not necessarily mean that the ultimate result would have changed.  Sadly, we will never know what the result would have been if irregularities, tampering, and possibly fraud had not occurred. 

But we do have a result.  While other legal actions are available, it is clear that any further challenges to that result will likely have no effect. 

As a lawyer I learned to be a good winner (don’t gloat) and perhaps more importantly to be a good loser – know when it is time to step back from the battle and congratulate your opponent, even when you know that the result is not what it should be, even when you know there were mistakes made, laws misread, evidence missing or incorrectly excluded.  

Sometimes, you just don’t have what you need to prove your case.   For those of you more familiar with the popular Queen’s Gambit miniseries than the courtroom, sometimes the chess player must realize that it is time to lay the king on his side and resign.   For card players, the phrase is “you’ve got to know when to fold ‘em.”  The point is, when the outcome is clear and when it is equally clear that any further efforts will be entirely fruitless, it is time to walk away.  Now is that time for the Republicans.

I am sad that half of America was not interested in examining or even discussing the large number of irregularities that evidence indicated occurred.  I am sorry that so many feel it is just easier to move on than to seek the truth when that truth may lead to unpleasant results.  I am saddened that so many care so little about our right to vote and how essential it is that it be protected in order for our democracy and our freedoms to continue.

As I have said from the beginning, this election was not just about the specific men running; it was about much more than that.  This election was about what kind of country we are going to become.  This inertia towards any unpleasant narrative, this lack of concern over a core element of our democracy saddens and concerns me.  That people are celebrating when an election lawsuit is dismissed while their comments reveal they have no understanding of why it was dismissed or even the important right of the people that it involved, I wonder where indeed this country is headed. 

I hope the bitterness of this election passes and that when it does that people stop and think rationally about it, about the Constitution, and about the central role that voting rights play in our democracy.  I hope that it is not too late for every legitimate voter in this country to demand that safeguards be enacted so that the voting irregularities of this election never happen again.  That is necessary to protect the vote of those entitled to cast one and more importantly to preserve the freedoms that those votes protect.

It is time to accept the result even if you feel it is not fair.  Step back from this battle.  Use that energy instead to fight to ensure that our Constitutional protections will be the guiding force for our country’s future.