On Saturday, the current short-term resident of the White House threatened a Georgia elected official with vague “criminal consequences” if he refused to find some way to assign at least 11,780 votes (just enough to overcome Biden’s margin in Georgia) to Trump. Let’s get a couple of preliminary things out of the way: 1) Georgia is a one-party consent state for recording conversations. Trump’s permission to record was not required, and Raffensperger clearly knew the conversation was being recorded. There was nothing remotely inappropriate about the recording being made. (Indeed, under the Presidential Records Act, there may even have been an affirmative obligation to record the conversation and retain the recording). 2) The claim that the conversation was a “confidential settlement discussion” is just another lie. First, there was no case filed to be negotiated. If there WAS a case to be negotiated, Trump is not appropriately a party to the case, so he’s not entitled to participate in a confidential settlement discussion. And third, even if it WAS a settlement negotiation, Trump had already broken the confidentiality of the discussions by tweeting about them before the audio was released. So let’s move on to substantive matters. I’ve said some of these things on other people’s feeds as responses to posts there, but figured this was a good opportunity to collect some thoughts about issues that seems to be raised on a recurring basis these days.
1. A number of loyal Trump supporters, and indeed perhaps Trump himself, honestly believe that he did win the election. They’re entitled to that belief. They can believe it all they want. But no one’s beliefs – not theirs, not the beliefs of legislators like Josh Hawley, not even the beliefs of Supreme Court Justices are relevant to the transition of power due to the results of this election. The only thing relevant to preventing the transition of power is specific evidence of illegal activity sufficient to change the outcome of the election.
2. Let’s talk for a minute about WHY it’s so important that election challenges require specific evidence of specific wrongdoing. Trump proxies and supporters seem to be advancing an argument that the state obligation to “certify” their vote count means that, in effect, nothing counts until the state says it does. (Or, by extension, because the final counts are received by Congress and there are provisions to reject “invalid” slates of electors). That’s a gross misrepresentation of what the vote total “certifications” are about.
The kind of conduct that the Trumpians allege happened on a rampant and widespread basis is all conduct that, if their allegations are true, are felony Federal crimes. Our core criminal legal principle, embedded in the 5th and 14th Amendments to the Constitution, is the presumption of innocence. The accused is innocent unless and until every element of an allegedly criminal act is proved beyond a reasonable doubt. As such, every ballot that is cast MUST be accepted as valid, unless and until evidence can establish beyond a reasonable doubt that the ballot was not legally cast. There seems to be a great deal of confusion about this, but there’s no reason there should be. It’s entirely self-evident. The Trumpians own claims are that ballots were cast “illegally.” If that’s the claim, then the obligation is on THEM to PROVE the allegations, beyond a reasonable doubt. Anything less violates the Due Process Rights of every voter whose ballot is invalidated without proof of guilt. (I’m not a big fan of slippery slope arguments, but think about this for a moment. If it’s OK for Trumpians to invalidate votes without due process, what other legal rights can be abrogated without due process? There are few rights in the United States that are more fundamental than the right to vote. Think about all of the legal status matters that would be in jeopardy if they can be voided based on self-interested allegations, without factual evidence.
3. That brings us to the subject of the Trumpian claims that are still being made. I’ve seen Trump claim that “we know” that we won Georgia. I’ve seen Trumpians say that they “know” that voting machines changed ballots or that dead people voted or that the number of votes cast exceeded the total pool of possible voters. More than 50 lawsuits have been filed in state and federal courts around th country by Trump surrogates. Those represent 50 opportunities to put EVIDENCE that would support these allegations on the record, before a judge. Despite these opportunities, ZERO evidence has been supplied that supports the allegations of these lawsuits.
Let’s talk for a minute about what “evidence” is. Because I’ve seen lots of posts talking about the hundreds of sworn affidavits filed with various of these lawsuits and how those “prove” the claims of election law violations. The affidavits submitted with these lawsuits are, at most, CLAIMS o ALLEGATIONS. If you look at the substance of the affidavits themselves, virtually all of them are not sharing information in a way that would allow the affidavits to be accepted directly as evidence.
It’s notable that, one time, the Trumpians stopped filing the affidavits with the lawsuits, and instead referred to them as being available in the lawsuits. They made for good theater to wave around from the podium. But in the few cases where the affidavits were subjected to any examination in open court, they proved to be a big pile of nothing. They offered inadmissible hearsay (the affiant wrote that they heard person x say thing y). The only thing that affidavit “proves” is that the affiant says it happened. The Hearsay rules mean that the affidavit cannot be accepted either as proof that “y” was exactly what was said, OR that the repeated statement is true. Other affidavits offered “statements” that did not amount to violations of election law. A third group of affidavits attempted to offer as factual testimony what was actually an interpretive evaluation. Such evaluations require that the person offering the interpretation be accepted by the court as an expert on the subject matter. Claims who the affiants were have turned out to be consistently overstated.
That’s a lot of wordy theory explanation, so here’s some specific examples from the court cases so far:
a. A Nevada voter said in an affidavit that she was prevented from voting for Trump. Upon examination, it was learned that she showed up to vote on election day, claiming that her ballot had been stolen. The election workers did exactly what they were supposed to do – they told the voter that she needed to file a police report stating that her ballot had been stolen (they even provided her with the form to file the report), and then they could allow her to replace her ballot. She refused to file the police report. Bottom line – no violation. Election workers did everything exactly as they should have.
b. An affidavit in Pennsylvania where a postal worker said they heard a supervisor tell another employee to backdate late-arriving ballots. Did the supervisor tell the affiant to change postmark dates? No. Who was the supervisor who gave the order? I don’t know. Who was the other postal employee to whom the order was given? I don’t know? Were any dates changed? YES!!! Did you see them get changed? Um, no. Did you see any ballots that arrived late that were not properly segregated? No. So the only basis for the statement you made that ballots were backdated is that you overheard a nameless supervisor tell a nameless employee to backdate postmarks, and you did not at any time observe the changing of postmarks or late ballots not being segregated? Correct. (Conclusions: useless affidavit).
c. A Dominion “insider”, who asserted in front of a partisan legislative hearing (not in court) that she knew that the Dominon voting machines were affiliated with the Venezuelan communist government and were changing votes from Trump to Biden. Her affidavit made significant expert claims. Look just a little bit into her background and you learn that she was a seasonal hire by Dominion whose job pretty much amounted to cleaning the scanner glass on a lot of machines to get them ready for use in elections. She has no firsthand knowledge of the internal workings of the Dominion voting machines. She’s doesn’t know how they function. She doesn’t know anything about how their data is stored or moved – she had no basis of knowledge from which she could be offering expert testimony about Dominion voting machines (or any other voting machines, for that matter).
4. As the Trumpians ran out of courts where they could file claims (because they’d already been denied). They’ve turned to increasingly wild and desperate attempts to manipulate the process. The set the stage for these manipulations with a series of “hearings” in contested states. These were used to try and build public support for their attempts. The nature of these “hearings” is important to consider. These were ad hoc “hearings,” many held without any participation by Democratic lawmakers at all, and some not even held in official state buildings – they were essentially Republican party meetings in hotel ballrooms. They called them “hearings” and they had the witnesses take an oath. But the “testimony” offered in these hearings was not subject to cross-examination or even close scrutiny. Witness after witness offered statements pretty much like the affidavits – allegations of things that they heard or saw, with their interpretations of what they saw being the key to the allegation of illegality (and in many cases, the exact things they were complaining about had already been publicly explained and were totally innocent and innocuous).
The one “new” witness that created some new energy behind the Trumpian claims was what appeared to be an advanced mathematical analysis of voting patterns and voter names. An investment advisor (and sometimes Republican political candidate) named Bobby Piton gave impassioned testimony about his “findings”, including sharing the Excel spreadsheets that he used to show off those findings. (Notably, he showed the spreadsheets, but did not volunteer the sources of his data).
Poking around it bit, it wasn’t too hard to find Piton’s data sources. And once it was clear what the data sources were, the credibility of his claims drop to about zero. In Pennsylvania, he testified at one of those ersatz hearings that a huge proportion of Pennsylvania votes were cast by people with “unique names” that exist nowhere else in the state and never existed in the state before election day. But the data he compared to reach his conclusions was 1990 Census data compared to pre-election voter registration rolls. Both 2000 and 2010 Census data is readily available. But he chose to use 1990 data because using that data generated a MUCH larger factor that he claimed suggested massive election impropriety.
Similarly, he testified in Arizona, allegedly just three days after starting his analysis of the Arizona vote. He appears to have combined 1998 voter registration data and state demographic data and compared it to 2020 voter registration and state demographic data. He then claimed that his analysis of the rate of demographic change in Arizona, combined with the voter registration numbers, meant that it was simply impossible for Biden to have gotten more votes than Trump in the state. So he claims that his analysis is evidence of massive fraud.
In both Arizona and Pennsylvania, Piton alleges systematic fraud, but can’t point to any specific ballot that was cast illegally. He can’t provide any reason why his mathematical analysis says that Biden getting more votes than Trump is “impossible” other than his own predictions of voter behavior based on ethnicity, age, and party registration (the data for which are coming from different sources). It’s basically incredibly basic demographic profiling – it’s polling, before actually asking any poll questions. There’s nothing about his “analysis” that even materially supports the allegation that something illegal was going on, and it certainly fails to identify any particular illegally-cast ballots.
Why do I run through all of this AGAIN. Because elected officials like Josh Hawley and Roger Marshall are making noise about trying to prevent the Electoral College votes from being counted as submitted by the States. And it’s important that you understand, at a fundamental level, exactly what doing that means. They say they’re trying to prevent a “stolen election.” But the only reason they have for calling it a stolen election is their BELIEF that Trump could not have lost a free and fair election. They don’t have any factual evidence of any specific illegally cast ballots. So what is it that they’re really doing?
Go back up to #2. Senators Josh Hawley and Roger Marshall are attempting to violate the due process rights of every voter in every state where they attempt to reject the electoral votes as submitted by the state. At its core, their argument is that the undisputed violation of the Constitutional Due Process rights of over 150 million voters is less important than their BELIEF that there were election shenanigans. Understand that, if they reject the Georgia slate of electors (for example), they are presuming at least 11,779 federal crimes were committed. They’re rejecting one of the fundamental principles of American justice – innocent until proven guilty – and substituting their devotion to one person for devotion to the principles that protect us all.
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