In a bid to declare Trump’s presidency over, the media are throwing around terms they do not understand. Anchors often pose as instant experts, feeding knowledge they do not have – on everything from medicine, law and legislation to national security, intelligence, and foreign policy. Often, pretending knowledge is harmless; but promoting ignorance can also be dangerous.
Promoting ignorance about the law, as our nation works to resolve a contested election, is especially dangerous. Pushing false information, seat-of-pants assessments, false definitions, and politically motivated shading creates false expectations, misinforms on process, and erodes public trust.
So, let us stop the merry-go-round. Let us define some terms, describe real facts, reference real laws, and get a real understanding of what electoral fraud is, how uncovered, presented, and resolved.
For weeks, we have heard things like: The Trump team has “no evidence of fraud,” “affidavits are not evidence,” “suits are frivolous,” “irregularities are common” or alternately “not widespread,” “statistical algorithms” do not matter, “interference was minimal,” and Trump cannot “prove beyond a reasonable doubt” anything that would flip the election.
All this chatter may comfort the media but is gibberish – and misleading. Whether from wishful thinking or intent, these statements misrepresent the law. Here is what all Americans should know.
First, lawsuits filed now in half a dozen states, alleging “voter fraud,” “electoral fraud,” material mistakes and unexplainable anomalies in ballot distribution, collection, validation, counting, and certification are not “frivolous.” A frivolous claim aims to harass, no basis in law or fact. Every Trump suit filed – as voters can read – rests on sound laws and facts, that if proved are significant.
Second, suits filed to remedy a significant “wrong” – and miscarriage of an election is one – begin with a complaint, asserting facts, laws, reasoning, and remedy. Sworn affidavits are attached. Contrary to media statements, affidavits are – in fact – evidence. While affidavits can be challenged, they verify claims which – if proven – justify a remedy. Here, most affidavits are eyewitness accounts, not hearsay.
Third, “voter fraud” and “electoral fraud” are different things. They can both change an election. Sworn allegations must be investigated. “Voter fraud” relates to illegal activity by voters, rather than those counting. It includes intentional acts, such as duplicate voting (that is, voting for another person, more than once, falsifying a signature, completing ballots for others), voting in a district where the voter does not live (or is ineligible), non-citizen voting, improper influence, and false registration.
“Electoral fraud” involves illegal interference in ballot collection, counting, recording, or certification, perpetrated by hand or machine. Electoral fraud can affect multiple ballots, and usually does. It includes illegal disposal of registration cards or ballots, counting of fraudulent, deficient, or incomplete ballots, forging signatures, disallowed ballot harvesting, misinforming voters, and other illegalities.
Fourth, as a general matter, voter and electoral fraud may relate to persons, groups, states, or a nation. Whether candidate-specific, coordinated, or “widespread” is not a legal matter. Returning to affidavits – and there are hundreds – these are likely to prove or disprove whether fraud was “widespread.”
Fifth, proving “criminal fraud,” of the kind Attorney General William Barr has allowed US Attorneys to pursue, requires “proof beyond a reasonable doubt.” But “civil fraud” – that is, dishonest, deceitful, or unfair behavior damaging, for example, an election – is must only be proven “more probable than not.” In other words, a court assesses affidavits, photographs, statistics, to see if probabilities support fraud.
Finally, a step back. Beyond potential fraud, big constitutional principles are in play. As in the Bush v. Gore Supreme Court decision, two arguments stand out. The first centers on the US Constitution’s “equal protection” clause, found in our 5th Amendment, applied to the States through the 14th. The argument – in 2000 and now – is that voters must be treated equally in voting and were not.
In 2000, the High Court found lack of uniformity – county to county – caused votes to be unequally weighted. Accordingly, it shut down the recount, and declared President Bush the winner. Here, disparate treatment of voters – country-by-county – is again alleged. That claim, as in 2000, may go to the US Supreme Court.
A second argument is that state legislatures, under the US Constitution, are essential to the process, under Article II. They have all the power – not election officials – to decide how Electoral College votes are awarded. In Bush v. Gore, a concurrence by Chief Justice Rehnquist highlighted this all-important fact. He made clear state officials who issued election-related orders deviating from legislatively provided election rules, improperly usurp legislative authority.
This is where things get interesting. While the Supreme Court locked 4-4 and was unable to stop Pennsylvania’s non-legislative authorities from extending when votes would be accepted, four justices made clear they thought Rehnquist was right, and that this was an impermissible act.
Now, comes a suit, using this argument to throw out late and co-mingled ballots in Pennsylvania – or anywhere else. If this case gets to the High Court, Amy Coney Barret sits in robes. That could produce a 5-4 ruling that bars thousands of Pennsylvania ballots, potentially affecting other states. Unknown is whether the case will get to the High Court, how they will rule, and how many ballots would be affected.
Main point: As we await lawsuits, certifications, recounts, and resolution of this contested election, do not trust media muckety-mucks. Most are not lawyers, objective, or interested in patience. They are awaiting Trump’s departure, coronation of Biden, and rise of the Left. Those things may happen, or not. The media may be disappointed – misled by their own ignorance. Promoting ignorance is dangerous.