The 2020 election case was always going to come down to this: it was rigged through automated voting systems, apparently using a strategy of focusing on the vote in a handful of battleground states; and in at least one state, the officials of the state were well aware in advance of the system vulnerabilities that facilitated rigging the election.
It wasn’t merely the officials of that state (Georgia), however, who knew every particular because all the information was lodged as expert witness testimony in a lawsuit decided in October 2020. (Anyone who hasn’t read this decision should do so before commenting on whether we have evidence of vote manipulation from the 3 November vote. The patterns detected and demonstrated in the 3 November vote tabulation were all previewed in the details of expert testimony discussed in this decision by U.S. Judge Amy Totenberg.)
It was also the U.S. Election Assistance Commission, the DHS Cyber and Infrastructure Security Agency (CISA), and a number of members of Congress, including high-profile Democrats like Senator Elizabeth Warren.
Will this presidential election be the most important in American history?
America has spent the last month watching Rudy Giuliani, Jenna Ellis, and others bring piles of evidence to court cases that revolve around the handling of mail-in ballots in some of the key battleground states. These cases are important because there was mishandling of ballots in those states (Michigan, Pennsylvania, Wisconsin), and the malfeasance with ballots speaks to intent and willingness to conspire against the integrity of the vote. The mere lack of integrity in the ballot handling, by itself, is a major source of doubt about the vote.
Giuliani and his team have presented evidence at hearings held by state legislators as well, some of which focuses on the ballot shenanigans. Other aspects of the evidence relate to the evidence from automated voting system operations.
The information has been coming out as if – to use Sidney Powell’s wording – from a firehose. It’s hard to keep it all sorted and prioritized. Observers are picking up on all the important nuggets, one by one, but the thread created by linking them is easy to lose.
The Texas case turned down by the Supreme Court on Friday was based on evidence for the mishandling of mail-in ballots. It was the push for mail-in balloting that produced the embrace of – and insistence on – unconstitutional and illegitimate practices in ballot handling in the battleground states (e.g., demanding acceptance of ballots after statutory deadlines expired, backdating ballot receipt records, and failing to verify signatures against voter rolls).
But the lawless use of mail-in balloting was only part of the problem in the 2020 election. It was an essential part, of course, and documenting it was indispensable to making the overall case. The way ballots presented themselves for processing was the basis for the most visible instances of vote tampering on a large scale; i.e., the massive vote updates that suddenly burst across news screens around 4:00 AM on 4 November, in the totals for battleground states that had all stopped tabulating their votes a few hours before.
A viral passage from the Texas case called particular attention to the extraordinary unlikelihood of these developments. The word “quadrillion” figured prominently in it, and critics quickly “debunked” the claim by pointing out that it was based on faulty assumptions about the pattern of Biden versus Trump votes in slices of the incoming ballots. But the critics are too categorical in that regard: the odds may not be “less than one in one quadrillion,” but they could be a whole lot greater than that and still be something we would never see in the lifetime of anyone walking about fogging a mirror in 2020.
More importantly, that passage in the Texas case is a reminder that the decisive element of the evidence – decisive for convincing officials that the 3 November vote has to be voided – is how pervasive the manipulability problem was in the automated systems, and the strong and growing evidence that it cooked the vote beyond repair.
That is what the proposition was always going to come down to. We’ve been skirting that point long enough, and it’s time to face reality. There is no valid vote to protect.
As long as there is any going-in assumption that there was a “valid” vote on 3 November, and the rogue-ballots operations were marginal to it, no judge is going to intervene to stop the process of certifying the electoral vote.
The supposed stake of millions of people who cast valid, good-faith votes will inevitably outweigh other considerations. That is so even though it’s not actually the right way to frame the problem. This is a very important point, and one that really makes the crisis at hand too big for the ordinary processes of law.
The correct way to understand the problem is that, no matter how many valid votes there were, it’s always the margin that decides the outcome. If we’re able to verify the vote, we can rejoice that out of 150 million valid votes, a margin of, say, 5 or 6 million valid votes rendered our decision.
But if we can’t verify the vote, then there may well be 145 million valid votes, but 5 million manipulated, false, invalid votes still decided the outcome. If the vote is unverifiable, there is no way to identify those 5 million votes.
We’d be idiots to pick a number out of the air and say, If we feel that we probably had 145 million valid votes – or even 148 million – we should constrain ourselves to accept the apparent outcome, regardless of where or how some votes were manipulated. Yet that’s the perspective the courts basically have. It’s the perspective many pundits are urging on us as well.
The basis for the lawsuits the courts consider is injury; i.e., whether someone’s voting rights were violated. Judges hearing those lawsuits aren’t being asked to determine whether the outcome was valid. That’s a different question.
But it’s the only question whose answer can avert the awful miscarriage of justice it would be to install a president elected via a vote manipulated to exploit margins.
I believe the courts, by themselves, are incompetent to determine the answer to that question. In fact, it’s possible – unless someone out there got a running mirror-image of the vote, at the ones and zeros level, as it was being auto-tabulated in every precinct in the country – that there is no way at all to verify that the 2020 vote is valid. It may be that the decisive thing we know is that we can’t verify the vote, but we can verify that in at least some places it was being manipulated, and plenty of people are known to have been aware of that vulnerability in the automated systems.
Decision factors of that kind you don’t hand to the courts and say, “Give us a verdict.” Law itself isn’t competent to render a judgment. Law doesn’t tell us when to not trust outcomes; it can only try to regularize them and deter malicious manipulation of them. Courts may listen to expert opinion on what’s normal, but the law isn’t written to say what it is. Detecting abnormality and rejecting it is the ultimate judgment call.
We have a process for such things, and as I argued a little over a week ago, it’s a whole of government process: the courts, the executive (including law enforcement), the legislatures, the people. The trick is facing up to the necessity for it and handling it without political explosions. The stakes are the highest they could possibly be – the outcome of the American presidential election – so naturally, everything in the cosmos is aligning against peaceful, thoughtful resolution.
But that’s exactly the task at hand. Due-process resolution of the problem that the 3 November election was manipulated irreparably, and therefore we can’t use it.
Here are the points to keep in mind going forward.
The core problem, manipulation of the vote, has two aspects. They interacted with each other, but they are separate.
The aspects are the automated vote manipulation (i.e., in Dominion systems and with Smartmatic software), and the improper handling of mail-in ballots (which has quite a few sub-features to be considered, from state Democrats ignoring the law on deadlines to ballot-counters marking ballots illegally and monitors being excluded from ballot processing locations).
Automated vote manipulation was probably the most pervasive in the process we have heard the least about so far: fractional vote tabulation.
But it also applies to the vote-dumping that attended mail-in ballot handling. Automated manipulation is how that vote-dumping was accomplished, as ballots were transformed from piles of paper to tabulated “votes.”
Automated vote manipulation is the central problem that renders the election unsalvageable. There are lengthy arguments that establish this incontrovertibly, but testimony from the Georgia lawsuit decided in October 2020 says everything we need in a few succinct words.
This passage is about electronic touchscreens, but testimony offered by the Giuliani team has indicated that some paper ballot tabulating programs have the same built-in auditability problem.
A vote so cooked through automated processing that it cannot be audited is a vote that cannot be used to govern a nation.
This hinge point isn’t about “voting rights.” It’s about something bigger than defined rights under law. It’s about the foundational expectations of the compact between man and the state. That’s why it isn’t for the courts to decide when the breach has occurred. This has to go to the legislatures: the place public decisions are deliberated before law is written down.
All that said, here are the basic elements of the problem. These elements are why we have something practical we can do about it, with the constitution-ordered end of the current presidential term approaching.
First, we know the vote was manipulated. We have the means to know it, and we have evidence. The two main methods were automated vote manipulation and mail-in ballot-tampering. Our task is to evaluate the evidence and not sweep it aside.
Second, we know that a number of people – persons identified in a lawsuit, and persons on record in the media, Congress, and other public forums – were aware in advance that the vote could be manipulated in the systems that were used.
Third, we know that the vendors of the systems in question have connections to foreign countries, and we have reason to be concerned that those foreign countries may have hoped to affect our elections.
Fourth, numbers one through three mean that one of the most important approaches to this problem is as a national security problem.
Fifth, we know President Trump recognized foreign manipulation of our voting process as a grave potential national security problem as early as September 2018, when he issued E.O. 13848.
Sixth, we know the U.S. government has the means to gather intelligence and law enforcement evidence on the human and information-media activities incident to an effort to manipulate our voting processes.
Therefore, we have reached the stage at which it’s time to pose the question to President Trump and his agencies: “So, what did you find out?”
Congress is the place to ask that question. The people have reason to expect an answer.
Trump may not have to be asked. On Saturday morning, he tweeted this.
WE HAVE JUST BEGUN TO FIGHT!!!
— Donald J. Trump (@realDonaldTrump) December 12, 2020
Our experience to date is that Trump doesn’t tweet in vain. He also chooses his words carefully (although many of his critics are too blinded by prejudice to recognize that). I don’t think he tweeted “We have just begun to fight” because he didn’t remember John Paul Jones accurately. If Trump had meant “We have not yet begun to fight,” he would have said that.
But he didn’t say that.
