Let me be clear: the election process was not perfect, but that is not the issue. The issue is whether the individual instances of errors and irregularities that would inevitably have occurred in any election of this size can be combined into some sort of massive, criminal scheme carried out under the direction of the Democratic Party that would have impacted the outcome of the entire election adversely to the re-election of Donald Trump?
This is what Trump is claiming. It should be considered complete baloney by all quarters, but it is not.
The growing emphasis on one-man, one-vote, the insistence on greater transparency, and the advent of technology, television, and the 24-hour news cycle have combined to virtually put an end to the corrupt political practices that spotted former times of our election history. In a recent study titled “The Truth About Voter Fraud” by Justin Levitt, published in 2007 by the NYU School of Law’s Brennan Center for Justice, the author concluded after a lengthy investigation covering all states that by any measure, voter irregularities have become extraordinarily rare. While he found allegations of voter improprieties were common, investigation invariably revealed that most claims were without basis or were greatly exaggerated. The author concluded that “[M]uch evidence that purports to reveal voter fraud can be traced to causes far more logical.…” The cataloged reasons found by the author were clerical or typographical errors, lack of uniformity between voter rolls when compared with other sources, and just plain innocent mistakes. The 2020 election appears to fit his conclusions.
In Trump’s thirty-some lawsuits challenging the vote in six states, handfuls of anecdotal instances of alleged irregularities were presented with the argument that they were representative of a wide-spread fraudulent conspiracy in the election process. However, when the affidavits were examined in detail, the anecdotes recited did not include any evidence of any connection between the incidents being described and the Democratic Party organization, or on the existence of any overall plan or scheme, or contain any of the specific elements necessary to prove fraud.
According to the Washington Post summaries, most of the instances reported as irregularities were technical mistakes that were caught and corrected in due course before the final count was determined. Other incidents were based on hearsay reports from unidentified workers to election observers rather than from the workers themselves pertaining to optional processes allowed by law and being taken in some precincts but not in others, or of irrelevant confrontations with the Republican observers. None went beyond describing an action the writer thought seemed peculiar with the writer’s conclusion that things were improper. In most instances, the affidavit writers were Republican observers who were untrained and unfamiliar with the processes they were observing. When examined, the circumstances mostly turned out to be normal steps in the complicated processes involved. In any event, the isolated Instances, even if illegal, would not be evidence that the entire process was tainted absent additional proof. Collecting a large number of such individual instances does not improve the proof; it is still only evidence of separate, individual incidents.
Republicans argue that statistical results were out of whack with what had been experienced in previous elections, and that this was circumstantial evidence from which one could assume irregularities from the numbers. However, in this case, the circumstances are completely explainable. 2020 was an extraordinary election because of the Covid-19 pandemic and because of the political spin placed on mail-in voting by Trump. Early polls and surveys indicated that a huge number of Democrats – many times more than in previous years – intended to vote by mail. Trump, on the other hand, was castigating the mail-in voting process and Republicans, by and large, were being encouraged to vote in person. Everyone – even Republican sources – predicted that the mail-in vote would heavily favor the Democrats. Everyone – even the Republicans – were aware that the early vote counts would not be indicative of the final totals until the mail-in vote was counted. The resulting returns happened almost exactly as predicted, with the totals being very close to that predicted by the pre-election polls. The law does not allow one to choose a result from circumstantial evidence that can be fully explained more than one way.
What is missing from all of the affidavits surveyed so far, and all of the arguments advanced in court so far, is direct proof of any sort of actual common plan or scheme by the Democrats that could tie the disparate collection of irregularities together, or any proof of fraudulent intent on the part of any Democratic leaders in directing or arranging for the irregularities at any of the voting levels involved. Even if statistical proof of irregularities existed (which it actually does not) or could be taken as valid in questioning an election (which it actually cannot) it would not help establish the specific criminal elements of the massive corruption Trump is alleging. Statistics may not be used to prove the necessary specific criminal intent or the existence of a plan or scheme, which are the necessary elements of a fraudulent conspiracy. There are no assumptions or presumptions here – it takes direct evidence of the wrongful acts or circumstantial evidence that cannot be explained any other way.
The deficiencies in these affidavits as admissible evidence in court was obvious and was why they were found unacceptable in every case by the several courts in all six states where litigation has been attempted. It should be noted that several instances were findings by trial judges recently appointed by Trump. In no case has any court found there to be any proof of fraudulent intent on the part of the Biden Campaign or the leaders of the Democratic party, nor has there been any direct proof of any agreements between or among these entities pertaining to the election process.
In fact, and in the real world, criminal conspiracies are almost always broken up by either turning an insider into a prosecution witness or by inserting an undercover agent into the operation who works his way into a position to uncover the entire operation. Without insider testimony, these cases are very difficult to put together and try. In the election cases, and despite the fact that the Department of Justice, the F.B.I. and John Durham, the special prosecutor appointed by the Attorney General, have all been working on election problems for over a year, there is no suggestion of any leaks that have occurred and are being followed up, or of any knowledgeable insider who has come forward with an offer of testimony, or of an undercover agent embedded in any state operation. Attorney General Barr conceded in a recent interview that neither the Department of Justice nor the F.B.I. had any evidence of any fraud in any of the counting that would alter the course of the election.
Nevertheless, Trump continues to maintain his drumbeat claim and that he actually won and that the entire election was a massive, fraudulent conspiracy manufactured by the Democratic Party and the Biden campaign. He knows that if he keeps repeating his claims over and over again, eventually somebody will begin accepting them as true. And this is exactly what is happening.
According to a recent post-election poll, 77% of Trump voters believe as a fact that Trump won the election and that Biden’s victory is the result of a fraudulent conspiracy by the Democrats. Factoring this percentage against Trump’s total vote means that fully 57 million adult American voters believe the election to have been fraudulent.
Most of us will heave a sigh of relief when President-Elect Biden finally takes over in January, but unless something changes, it is still going to be all uphill.