Dozens of claims, hundreds of affidavits, lawsuits in half a dozen states – all argue that President Trump should win. A common thread unites the claims – and it is important.
Claims fall into pockets, including how mail-in and absentee ballots were disseminated, collected, processed, verified, counted, observed, and certified – in hundreds of counties. If fraud occurred, finding the right remedy is vital. How many ballots should be tossed?
Assessing the integrity of mail-in ballots is common to all these suits. COVID produced a perfect storm – fear, millions of mail-in ballots, and elevated risk of fraud. This is the first presidential election in American history to be decided by mail-in ballots.
Why do these lawsuits matter? Why is filing them entirely right? Three reasons.
First, without assurances of integrity in validation, collection, and counting of these ballots – the election outcome, whatever it is, will be forever in doubt. The legitimacy of the inaugurated president – Trump or Biden – will be darkened. That is why lawsuits and recounts matter.
Second, fraud is so likely with mail-in and absentee ballots that, absent proof of basic protections – like GOP observers close to ballot opening, signature validations, and no co-mingling – fraud may be “more likely than not.” If a pool of ballots is credibly alleged to be tainted, the legal presumption should shift – against counting them.
The comeback is that fraud should not be assumed, even if allegations support it. That is nonsensical. In fact, most countries in the world, and most US states before this election, severely limited mail-in ballots – for one obvious reason. Fraud is easy and likely.
Look at the evidence. Thirty-seven US states – until this year – disallowed widespread mail-in ballots, for fears of fraud. The view was bipartisan. Around the world, mail-in ballots are disallowed. As one expert noted: “There are fraud problems with mail-in absentee ballots, but problems with universal mail-in ballots are much more significant,” and “most countries ban even absentee ballots for people living in their countries.”
As a matter of record, “most developed countries ban absentee ballots, unless the citizen is living abroad” or, in the alternative, they “require Photo-IDs to obtain those ballots”. Examples, abound. “Japan and Poland have limited mail-in voting,” and “special certificates” for the disabled.
Likewise, “France banned absentee voting in 1975, because of massive fraud in Corsica, where postal ballots were stolen or bought, and voters cast multiple votes.” Not surprisingly, “mail-in ballots were used to cast the votes of dead people.” France, like other countries, fears a repeat.
Third, dependence of this election’s outcome on mail-in ballots, subject to fraud and traditionally disallowed or limited – suggests that the right remedy is disallowing all credibly suspect ballots.
If this sounds harsh, think about how we manage integrity in any other setting. If blood samples are tainted, we throw them out. If water quality samples are tainted, we throw them out. If matters of great import are before us – we decide them based on data, following probabilities where they lead.
This is a strange year. This election – beyond stakes, differences among candidates, questions of style, competence, and impact – is inordinately dependent on huge piles of mail-in ballots.
All else aside, lawsuits urging every legal ballot be counted, every potentially illegal one tossed, are entirely justified. Given the outsized number of suspect ballots, the Supreme Court should apply a standard of review that focuses on a presumption against credibly suspect ballots.
In short, if misfeasance, malfeasance, or nonfeasance are involved – or credibly alleged – the presumption should be against counting these ballots. Wherever that leads, we should all be content to land. If in this process, Biden wins, so be it. If Trump wins, so be it.
Bottom line: Dozens of claims, hundreds of affidavits, and lawsuits filed in half a dozen states –amount to a call for election integrity, in a year overwhelmed by mail-in ballots. Credibly suspect ballots should not be counted, to assure the outcome’s legitimacy. It is that simple. When the dust settles, all credibly suspect ballots should be out.
If the Supreme Court hears this case, arguments for tossing suspect ballots are “equal protection” – where different counties treated voters differently, and state failures to follow the constitutional requirement that state legislatures, not election officials, set procedures for Electoral College votes. We will have to wait to see – but a strong argument exists, and Trump is making it.