Democracy May Involve Disorder and Disruption but It Requires Dependable Integrity

Do I think the objections to the Electoral Vote certification will succeed? No.
Do I think that the objections should nonetheless be made? Yes, absolutely.

Some may question my answers above, but if one takes a step back from their feelings for or against President Trump and looks at this past election more objectively, anyone who cares about our American democracy must agree.

There is no question that there was a much higher number of ballot irregularities in this election than the few that occur in every election.  In some cases, the numbers were huge enough that they could have changed (though there is no proof, nor may there ever be any, that they did or did not change) the outcome of not only the presidential result but results of other contests on the ballot as well.

If there is any possibility that fraud or other lack of integrity allowed illegal votes to be cast and counted, then those votes diluted the votes of those who cast legal ballots, thus disenfranchising those legal voters just as if their valid votes had not been counted.  This should concern everyone of us who enjoys the benefits of our democracy.

A number of senators, led by Ted Cruz, will object on Wednesday to results from specific states.  Their joint statement indicates that they will vote against accepting the election results until there is a 10-day audit:

Congress should immediately appoint an Electoral Commission, with full investigatory and fact-finding authority, to conduct an emergency 10-day audit of the election returns in the disputed states. Once completed, individual states would evaluate the Commission’s findings and could convene a special legislative session to certify a change in their vote, if needed.

Will this divide the country?  Perhaps, but probably no more than it is already divided.  Will it cause some anger and uncertainty during the 10 days if the objection prevails and the proposed Commission is established?  Yes.  But then, uncertainty is a part of democracy.  Only in those nations where a governing body, not the people, makes all decisions is there any kind of certainty.  That certainty may not be pleasant (“This week you will get one loaf of bread and two potatoes”), but the people will know exactly what will happen. 

Democracy does not have certainty, pleasant or unpleasant.  That is because the people have a voice and as that voice changes and evolves, the people will make different choices.  And, because those choices often address if not resolve many opposing viewpoints, then the disruption and disorder they cause become an essential part of the preservation of our democratic freedoms.

Putting aside the turbulence this objection may cause, isn’t it more important that we establish the integrity of our elections when it is those very elections that are a key cornerstone of our democracy?  The trustworthiness of our elections is needed for the people of the nation to accept and support their results as the true voice of the people.  Without that certainty, we no longer have a government of, for, and by the people, and our democracy is in peril.

Today, 39% of Americans believe the 2016 Presidential election was “rigged”; that includes 17 percent of Democrats and 31 percent of independents.  This needs to be addressed.  It affects not only the legitimacy of this election and presidency, but the legitimacy of all future elections as well. 

Ted Cruz said, that dismissing these claims “does real violence to our democratic system. We ought to have a serious, fair process and tribunal to consider these claims, consider them quickly, consider them expeditiously. We can do it in 10 days before the inauguration.”

What is wrong with that?  We have within our democracy a system for objecting to the Electoral vote.  These senators are following that established procedure.  It is not treasonous as Democrats and others who oppose the objections assert.  Indeed, Democrats objected in 2004 and 2016 and were praised by Democratic leadership and the media when they did. Those objections, like the objections to be made by Republicans this Wednesday, were legal and a valid and necessary aspect of our democracy.

The people need to know that they can trust the democratic process, they need to know that only legal votes will be counted and that all such votes will be counted.  Our vote is a great privilege and to weaken or cancel it by allowing even the perception of a lack of voter integrity is one of the most destructive things that can be done to the American people and their democracy. 

I am aware that the fact that this election was about retaining or not retaining President Trump causes many people to lose any objectivity in the matter and forget what the bigger picture of election integrity is all about.  I understand that President Trump’s sometimes abrasive language, which is not missing in his current fight to find the actual and true vote totals, is a trigger for some sort of anger and/or hate in many. 

The cloud that covers so many eyes and minds when President Trump speaks (the cloud sometimes known as “Trump Derangement Syndrome”) was triggered again by the leak of a phone conversation with Georgia’s Secretary of State wherein, amongst his rant about the hundreds of thousands of questionable ballots, President Trump commented that all he needed was 11,780 of those hundreds of thousands to win.  How this could be any kind of criminal act is ludicrous, yet Democrats and Trump-haters are calling for criminal investigations if not the death penalty.

But while for Trump, who may very well have had an election stolen from him, this is primarily about his vote totals, for the rest of us this should be more fundamentally about American democracy.  While we can clearly see the very different consequences for our country that a Trump or Biden presidency would have, hatred of or love for our current president should not remove our focus on the bigger picture. 

While it is unlikely that, even if the objection prevails and a commission investigates, the final election result will change, that does not mean that this objection should not be made.  The Commission it seeks should be granted. 

We the people have a right to know what happened in this election:  how, for example, in some instances there were more votes than voters, or how a precise needed number of votes miraculously appeared in bulk in the middle of the night.  Even if we live with questions about our president for the next four years, we need to know what happened so that we can have faith in the integrity of our future elections.  That trustworthiness is essential to our democracy.

NOTE, the full statement of those senators planning to object to the Electoral vote on Jan. 6 can be found here: LINK     

 

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.