ASSURING FUTURE ELECTION INTEGRITY: THE PATH TO FAIRNESS
Randy Michael Mott JD* — 2021
Never in our lifetimes has the public’s mistrust of American elections risen to this level. Gallup found less than 20% of Americans were “very confident” before the voting in 2020 that votes would be accurately cast and counted. The Left blames Donald Trump for making the allegations and the Right is convinced that there was foul play. After the election, the public’s belief that the results were marred by fraud or irregularities remains quite high accordingly to recent Rasmussen polling. The issue breaks pretty much on party lines, but even a significant portion of the Democrat voters recognize that irregularities occurred. This sentiment is even more serious when one considers that the media and social media have done everything possible to suppress information about election issues. Where the public largely comes together is the issue about how future elections should be conducted. There is no major bipartisan split on key elements of election integrity.
Because the “consent of the governed” must be predicated on the accepted legitimacy of elections, this controversy needs to be resolved decisively and with some urgency. Robert Dahl commented that legitimacy as a reservoir: so long as the water is at a given level, political stability is maintained, if it falls below the required level, political legitimacy is endangered. ”It doesn’t lead to a good place if people on both sides continue to feel this way for very long,” says presidential historian Michael Beschloss. American democracy has flourished because citizens “had the faith that if you wait for a while the system would, from their point of view, correct itself. People are losing their faith.” https://www.lopinion.fr/edition/wsj/155526
[Introduction Consent of the governed THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776); JOHN LOCKE, SECOND TREATISE OF GOVERNMENT 52 (C. B. Macpherson ed., Hackett Publ’g Co. 1980) (1690)).
The American political scientist Robert A. Dahl explained legitimacy as a reservoir: so long as the water is at a given level, political stability is maintained, if it falls below the required level, political legitimacy is endangered. Dahl, Robert A. “According to Gallup earlier in October, fewer than 1 in 5 Americans are “very confident” that votes in the upcoming election will be accurately cast and counted. In an NBC News/Survey Monkey poll, 56% of Americans said they were “not too confident” or “not at all confident” that the election would be conducted in a free and equal way.” https://www.bostonherald.com/2020/11/03/u-s-losing-faith-in-fairness-of-election-process/]
Before looking at a strategy for the future path to shore up election integrity and public confidence in the process, we must examine why the efforts to challenge the 2020 election failed, despite an unprecedented level of public skepticism going into the election. Conservatives cannot expect to fix the system without critically looking at why the 2020 election challenges failed. There is, of course, the overriding fact that it is hard to put the tooth paste back into the tube: once votes are cast and results announced, the public and our institutions view acceptance of an election as inevitable, almost like the weather. Most of the public also has a saturation point for political news. A majority of people get tired of dealing with the issues and taking the time to pay attention. The challenges also faced the fact that some of the systems being challenged and the administration being questioned was done by local Republican officials. This backdrop created hurdles for any effective challenges but was not insurmountable.
This general disposition to accept things as they are, however, does not explain all of the resistance to the 2020 challenges nor does the media’s massive censorship. Significant mistakes were made in the Trump election challenges that must be understood and not repeated, both in future election disputes and in efforts to fix the system.
(1) The challenges were disorganized and unfocused. They could probably be best described as looking like a series of “hail Mary” passes in the last minutes of the fourth quarter. This made it easy for judges to find a way to avoid the controversies and for most state legislators to sit on their hands. This began with election night (and week) observations of counting and irregularities being handled in ways that generally got lost. The clearest example is not discovering the Fulton County election center cameras until days later. The problems of getting on-site judicial intervention for observers to have real access also did not run smoothly or effectively. We were simply not prepared for systematic efforts to block observation and frustrate the normal bipartisan oversight.
(2) The legal teams were inadequate for the tasks. The large law firms were compromised by conflicts with many of their commercial clients and non-conservative partners. The only lawyer that the President seemed to trust was Rudy Giuliani, who was a criminal prosecutor and not a civil litigator and who had apparently not been in court for many years. (3) There was no clear endgame for most of the challenges. If someone proved that 50,000 dead people voted out of 2.5 million votes cast in a state, what was the court’s remedy? The challenger cannot prove who they voted for and which ballots had to be thrown out. The courts and the state legislatures were uniformly and understandably not going to throw out 2.5 million votes because of 50,000 bad ballots of unknown impact. The certification deadlines for the electoral vote under the Constitution precluded election make-overs, even if this obstacle had been cleared. These claims must be litigated on the voter roll challenges before the election (an effort that many like Judicial Watch have been pursuing with stellar results).
(3) The campaign left the pronouncements of federal bureaucrats that this was “the most fair election” ever stand without challenge. The fact is that the federal agencies involved had done virtually nothing to address the issues raised in the challenges. Their “certification” inexplicably does not require a paper ballot trail for electronic election systems. Their answer to claims that electronic voting could be rigged was to argue that it was impossible since a paper ballot audit would detect this. Yet they do not require the systems certified provide for such a paper trail and the parties defending the election results were also fighting such real audits at every turn. The weakness in our federal election certification and guideline process must be addressed, as discussed below. The bureaucrats and their allies got away with gross generalizations that most casual observers and the media accepted on their face.
(4) The campaign challenges ignored the only case where the Dominion system had been challenged in a full federal court proceeding that involved full discovery and a trial. Many useful findings in that case could have legitimized the challenges and elevated the narrative. See Curling v. Raffensperger, Case 1:17-cv-02989-AT, opinion filed October 10, 2020. This pre-election challenge was supported by not just Republicans, but Georgia Democrats and third-party NGOs. The quality of the expert analysis and factual inquiries vastly exceeded anything put out later by the campaign’s challenges. Judge Totenberg’s finding:
The Court’s Order has delved deep into the true risks posed by the new BMD voting system as well as its manner of implementation. These risks are neither hypothetical nor remote under the current circumstances. The insularity of the Defendants’ and Dominion’s stance here in evaluation and management of the security and vulnerability of the BMD system does not benefit the public or citizens’ confident exercise of the franchise. The stealth vote alteration or operational interference risks posed by malware that can be effectively invisible to detection, whether intentionally seeded or not, are high once implanted, if equipment and software systems are not properly protected, implemented, and audited.
The judge added: “The Plaintiffs’ national cybersecurity experts convincingly present evidence that this is not a question of “might this actually ever happen?” – but “when it will happen,” especially if further protective measures are not taken.” She only stopped short of enjoining the use of the system because it was too close to the election to change the system used. Even the entertainer Eddie Vedder noted: “I’d like people to be educated on the voting machines, making sure that our democracy isn’t being hijacked by computer technology. There’s no reason there can’t be a paper trail on those machines.” For some reason, in the key state of Georgia, with a case already largely decided on the same questions raised, the campaign did not file to reopen the case. Even a procedural issue could have blocked reopening of the case (if one could have been imagined) the effort would have placed the case in the spotlight and changed the narrative dramatically. Unlike some of the experts challenged by Democrats in the campaign’s efforts, those in the Curling case were stellar in the field. In the Republican election challenges, the sloppy pleadings, marginal experts, and inexperienced lawyers were all used to great effect by the other side. All that vulnerability was unnecessary and avoidable.
Now we have quite a few lessons from the unsuccessful post-election challenges as well as a strong basis in public opinion to improve our election integrity. There are ways to increase voter confidence in the system and to keep our base motivated to vote in the next elections. The steps described here can build on the many legislative actions being taken to strength voter ID laws, reduce potential fraud by hundreds of thousands of mailed-out ballots based on bogus voter rolls, ban ballot harvesting and to improve election supervision procedures. Reversing this legislation in court will be virtually impossible after the Supreme Court decision in the Arizona case.
However, there needs to be a legal challenge to the adequacy of the federal election systems certification rules and guidelines. No system should be certified without leaving a clear paper ballot audit trail. Astonishingly, existing rules and guidelines do not require a paper trail. No “adjudication” of votes that can potentially change the voter’s selection should be done without observers and detailed records of the “adjudication” to allow audits. Nothing necessary for an effective audit should be “confidential” and “a trade secret” or the election system should not be certified. No system that allows weighted voting (where votes can be programmed to equal more or less than one) should be certified. Rigid procedures should be specified for USB entry of votes and other manual functions within the electronic system. Entry of ballot bunches that do not have a chain of custody should be prohibited. These issues to be raised in a lawsuit and aggressively pursued as soon as possible. Federal certification is not mandatory, but several states require it and virtually all other states rely on it to some degree or another.
Election voting and counting centers need to be more aggressively monitored. Republicans should push to have multiple cameras installed in these locations; much the way the Arizona recount is being handled. Those cameras should be manned by observers from both sides and allow zoomed-in views if there is an observed potential issue. They should also retain the recordings. Rapid response teams need to be set up before the election. One call to the team on any observed serious problem should bring in a qualified local attorney with a pre-determined method to obtain judicial intervention. State and local election officials should be pushed to maintain and store election records in a way that both secures them and allows for easier audits and recounts. The default setting should be that a recount and audit will occur in order to assure that if it is necessary, it will be orderly and prompt.
The issues can be resolved and elections brought back to a standard that the public deserves and respects. Above all, we can wait or delay and wait until the next election to fix what is broken.
Mr. Mott holds a BA in American history and political science from the University of Iowa with honors, and a Juris Doctor from the Georgetown University Law Center. He practiced law in Washington DC for over 25 years and engaged in complex civil litigation and administration litigation against the Federal Government. He resides now in Warsaw, Poland and is a consultant on EU and US environmental and governmental issues. He is also the chairman of Republicans in Poland.