The results of the Maricopa County election “audit” from Arizona are reportedly to be published this week. It’s not certain, of course, how this will go. Partisan media are utterly incapable of reporting on this matter in responsible, temperate language, so here are a few links from each side: here, here, here, here, here.
As a reminder, polling indicates a majority favor audits.
No @WSJ mention of subpoenaed evidence still withheld by county officials, or 51% of ALL voters, including a majority of unaffiliated voters, now nationally believing cheating impacted the 2020 election results.
“Arizona Republicans disagree … “ https://t.co/b7pyQOuTvc
— Rasmussen Reports (@Rasmussen_Poll) August 22, 2021
“The state of Arizona has conducted a forensic audit of 2020 election results in Maricopa County to ensure that there was no vote fraud. Do you support or oppose audits of election results?”
— Rasmussen Reports (@Rasmussen_Poll) August 22, 2021
Michigan will reportedly conduct a statewide audit of the 2020 election as well, something announced last week.
Early information suggests that actionable findings will come from the Maricopa County audit.
But everything hinges on what “actionable” means – and thereby hangs a tale.
I believe two points are paramount at the outset. One is that it has done us no good for partisans on each side of this election auditing issue to stake out indefensible positions.
The two indefensible positions are as follows:
Joe Biden unquestionably won the election …
Donald Trump actually won the election.
The indefensibility of these two positions leads naturally to the second point, which is that the real concern about irregularities in the 2020 election is that we can’t prove who won the presidential general election.
We can’t prove it for a list of reasons. These include the non-compliant voting revealed in the various states involving numerous violations of state law, some of which make it impossible now to verify tens of thousands of ballots; the vote-tabulation irregularities that can’t be accounted for; the lack of access throughout the process, from voting night (3 November 2020), when observers in several battleground state venues were kicked out and not allowed back in while counting continued, to denial of post-election requests for auditing the digital records of voting machines (without revealing any voter identities); and a number of other discrepancies.
Some of the discrepancies involve so many votes that it’s possible the true vote count in key battleground states would change the outcome. The margin of official victory for Biden was very narrow in Pennsylvania, Michigan, Wisconsin, Georgia, and Arizona. The voting discrepancies found so far in Georgia and Arizona, where systematic forensics are being applied, are sufficient to change the presidential outcome in those states.
That doesn’t mean the outcome would inevitably change. It means something that’s actually harder to deal with, but utterly fatal to the people’s trust in our system of consensual government. It means we cannot be sure who really won.
We’re supposed to be able to prove it. State legislatures regulate voting operations precisely for that purpose: so the outcomes of elections can be verified and the people’s trust in the system is justified. There’s nothing exclusionary or biased about making sure votes can be reasonably audited in an accountable process.
That principle applies independent of any other circumstance. It’s so important, in fact, that if something like a pandemic is held to make it impossible to vote on an accountable basis, the right answer is not to open the vote to unaccountability and corruption, but to postpone the vote until accountable voting can resume.
That said, it was always special pleading anyway, to insist that the COVID-19 pandemic meant county officials would have to declare open season on such bedrock measures as signature matching for mail-in ballots, independently-observed integrity in ballot counting, and postmark or receipt deadlines for mail-in ballots.
State legislatures for the most part declined in 2020 to alter accountability requirements for the vote. This was the case even in states that decided to mass-mail ballots. Millions of voters received unsolicited ballots by mail, but the accountability process for the voter executing each ballot was largely unchanged.
It was third-party activists and county officials who both ignored those requirements and sued for relief from them. Some lawsuits got favorable treatment in the courts; others did not. We did not come away from 2020 with a body of judicial precedent biased against the voting regulations in the typical state, as if they violate voting rights. Claiming that regulating the vote is a means of denying people’s voting rights is partisan hype.
All that being said, it has been problematic after the vote to discover how much the legislatures did not foresee, and have had to weigh in on afterward due to irregularities in 2020 that suggest potential vote tampering, or at least incorrect vote tabulations, that lawmakers had not previously envisioned. Prior regulations may not have covered some of the irregularities observed, in the sense of offering a prescribed method of investigation and remedy.
Law and remedy
This point gets at a more basic one. A key factor in probing the 2020 election has been that it has had to rely on civil suits, and subpoenas from state lawmakers, to get material evidence examined. The central reason for this is that prosecutable culpability just isn’t designed into voting law in the parts of the process where it would reveal a “steal.”
State and county prosecutors have nothing to charge anyone with, unless individuals are caught in specific violations of voting law. These cases net few perpetrators, and account for few unlawful votes. They almost never affect the outcome of an election on a statewide scale, where presidential and U.S. senatorial contests are held.
That’s an important factor in why so many of the civil suits over the 2020 election have been dismissed. Civil suits cannot be over the outcome of a vote (nor can criminal cases be); they must be over the injury done to a plaintiff’s interests by the defendant. That matter is only partly about transgression of statute law. The injury has to be demonstrated, to the standard used by the court. Unless a judge sees an injury done to a plaintiff with standing, the evidence itself won’t typically be reviewed by the court.
The courts never inspected the evidence; rather, they found lack of standing, or in quite a few cases the debility called “laches,” which refers to timeliness in bringing the suit. A short but useful layman’s summary of laches as it relates to election law was offered at this blog: “The bottom line is that if you think there is a problem with how an election is being run, you need to go to court at that point to sue about it; you can’t wait to see how the election turns out and then do it.”
As blogger Rick Hasen goes on to say, “an attempt to try to complain about ballot deadlines or other longstanding problems for the first time now or after the election should be seen as coming too late.” In other words, foreseeable problems with longstanding law are not a sound basis for a suit just because you don’t like a particular electoral outcome from that law. The remedy lies not with the courts but with the legislature.
That formula was complicated, of course, by the surge in breaches of voting regulations among county officials in 2020. Establishing what law, or what breaches, had led to the loss of auditable vote accountability in a number of counties wasn’t simple. Counties decided to ignore requirements by executive fiat, or lawsuits brought court rulings days before the election. Connecting those events to injuries done to the plaintiffs (i.e., in terms of their right to a properly-administered election) wasn’t necessarily a slam-dunk.
Elections are the very devil in this regard because plaintiffs are only likely to emerge from among those who don’t like outcomes. Some of the laches rulings themselves probably took advantage of the laches option to keep the court out of the fray.
Courts are naturally disinclined to take “election” cases anyway; such cases are stuffed with problematic variables that can be hard to adjudicate, and are inherently brought over partisan disappointment, even if there’s good evidence on offer. Statutory crimes committed in the administration of an election – cases that aren’t about anyone’s dissatisfaction with the outcome – are much easier.
Note that the Curling v. Raffensperger case in Georgia was brought prior to the 2020 election, and sought to enjoin Georgia’s implementation of machine-based voting without a paper ballot backup scheme. The federal court accepted that suit as properly founded. It wasn’t about an election outcome but about a claim that historical evidence regarding machine-based voting posed a danger to voting rights, by opening the vote to irregularities and potential tampering.
Justice Thomas wrote what I’ve found to be one of the best explications of the courts’ problems with taking post-election lawsuits. Thomas was dissenting from the Supreme Court’s ruling in February denying certiorari to a number of 2020 election cases, including Donald Trump’s appeal to intervene as petitioner in a Pennsylvania case.
But Thomas has a very readable passage on why the courts are poorly suited for this problem, starting on page 30 of the PDF (annotated page 6 in the Thomas opinion. The opinion starts on PDF page 25).
It’s several paragraphs, so I will excerpt only a little here. I added the italics in the first sentence.
“At first blush,” writes Thomas, “it may seem reasonable to address this question when it next arises. After all, the 2020 election is now over, and the Pennsylvania Supreme Court’s decision was not outcome determinative for any federal election.
He goes on:
But whatever force that argument has in other contexts, it fails in the context of elections. For at least three reasons, the Judiciary is ill equipped to address problems—including those caused by improper rule changes—through postelection litigation. First, postelection litigation is truncated by firm timelines. That is especially true for Presidential elections, which are governed by the Electoral Count Act, passed in 1887. That Act sets federal elections for the day after the first Monday in November—last year, November 3. See 3 U. S. C. §1. Under a statutory safe-harbor provision, a State has about five weeks to address all disputes and make a “final determination” of electors if it wants that decision to “be conclusive.”
The second reason:
Second, this timeframe imposes especially daunting constraints when combined with the expanded use of mail-in ballots. Voting by mail was traditionally limited to voters who had defined, well-documented reasons to be absent.
This expansion impedes postelection judicial review because litigation about mail-in ballots is substantially more complicated. For one thing, as election administrators have long agreed, the risk of fraud is “vastly more prevalent” for mail-in ballots. Liptak, Error and Fraud at Issue as Absentee Voting Rises, N. Y. Times, Oct. 6, 2012. The reason is simple: “[A]bsentee voting replaces the oversight that exists at polling places with something akin to an honor system.” Ibid. Heather Gerken, now dean of Yale Law School, explained in the same New York Times article that absentee voting allows for “simpler and more effective alternatives to commit fraud” on a larger scale, such as stealing absentee ballots or stuffing a ballot box, which explains “‘why all the evidence of stolen elections involves absentee ballots and the like.’” Ibid. The same article states that “[v]oting by mail is now common enough and problematic enough that election experts say there have been multiple elections in which no one can say with confidence which candidate was the deserved winner.” Ibid.
Fraud is not the only aspect of mail-in ballots that complicates postelection judicial review. Also relevant are the corresponding safeguards that States put in place to ameliorate that heightened risk of fraud. … Tallying these ballots tends to be more labor intensive, involves a high degree of subjective judgment (e.g., verifying signatures), and typically leads to a far higher rate of ballot challenges and rejections. Litigation over these ballots can require substantial discovery and labor-intensive fact review. …
And the third reason:
Third, and perhaps most significant, postelection litigation sometimes forces courts to make policy decisions that they have no business making. For example, when an official has improperly changed the rules, but voters have already relied on that change, courts must choose between potentially disenfranchising a subset of voters and enforcing the election provisions—such as receipt deadlines—that the legislature believes are necessary for election integrity. …
Here is the crucial point, something the pro-Trump folks must keep in mind:
In short, the postelection system of judicial review is at most suitable for garden-variety disputes. It generally cannot restore the state of affairs before an election.
And it is often incapable of testing allegations of systemic maladministration, voter suppression, or fraud that go to the heart of public confidence in election results.
But Thomas then reaches the opposite conclusion from his colleagues on the bench.
Because the judicial system is not well suited to address these kinds of questions in the short time period available immediately after an election, we ought to use available cases outside that truncated context to address these admittedly important questions. Here, we have the opportunity to do so almost two years before the next federal election cycle. Our refusal to do so by hearing these cases is befuddling.
He’s saying that cases should be heard precisely because, while hearing them will not change a prior outcome, it will illuminate problems of law and administration that manifest themselves through recurring patterns.
“The issue presented,” he says [i.e., election irregularities and potential fraud], “is capable of repetition, yet evades review.” Thomas finds that evasion problematic.
Legislatures hold the key
I am sympathetic to Thomas’s preference for hearing the cases, in the interest of airing evidence and determining whether the courts need to rule on matters such as the manner of systemic maladministration, voter suppression, or fraud. The courts actually do that all the time, when voting-rights cases are brought on the basis of “bias” alleged by left-wing activists.
But as useful as that would be to a wirebrushing of electoral practices in the states, it cannot be the basis of a court’s decision to overturn a certified electoral outcome – because all it would tell us is that we don’t know who actually won.
No inspection of evidence in court has much if any likelihood of establishing that Trump and not Biden won in Pennsylvania, or any other state. A court can agree that there are disqualifying questions about 100,000 ballots in a federal race decided by 20,000 votes. It can agree that voters’ rights to a reliable election system were violated by regulatory breaches. It can order changes in regulation and administration.
But where maladministration has made ballots and tabulations unaccountable, or effectively unauditable, no evidence presentable to the court can establish that the losing candidate actually won – nor is it the court’s job to order a new election.
The legislature in each state has to decide if an electoral outcome is to be vacated, and what to then do about that.
That has been the case all along. It’s the state legislature that must decide what to do about a prior election’s results, if the evidence of irregularities or even fraud applies to enough votes to invalidate those results.
That’s why the legislatures’ interest in the 2020 election irregularities in such states as Arizona and Pennsylvania is so important. It’s good to have an airing in the courts, and obtain some precedent that may slow lower courts down in any future rushes to overset existing state laws just before an election. But the legislatures themselves need to hear the evidence – and the legislatures must be the ones to decide whether to vacate prior electoral results.
I realize that many people already understand these issues (which by no means cover all of the facets of this hydra-headed problem). I have also seen over and over again that people who claim the courts have rejected all the evidence appended to the pro-Trump cases have never looked at either the evidence or the courts’ reasons for dismissing cases.
Almost none of the cases have been dismissed after a review of the evidence. The overwhelming majority of dismissals have been because the court didn’t see a basis for hearing the case. Standing, lack of injury, and laches have been the reasons for dismissal, not the quality of the evidence.
This is a big reason why it’s the legislatures that have to act. The courts, for the most part, by the nature of the beast won’t even hear the evidence. That’s a defensible posture by the courts, but it’s not a reflection on the evidence, nor it is the justice and due process the American voter is entitled to.
All of that circles back around to the initial proposition. We can’t say “Trump won the 2020 election.” We can’t say “Biden won the 2020 election,” even though – in spite of legion irregularities – the vote was certified under intense political pressure in the battleground states.
We can’t say because of the central, irreducible problem of the 2020 election – a problem that gravely threatens our viability as a consensually self-governing nation and people.
We can’t prove who won.