Below is my column in The Hill on the challenges to the presidential election and moving beyond heated allegations to hard evidence in the filings. I have expressed skepticism over the sweeping claims of fraud or that the current margins could be overcome with anything other than systemic flaws in the authentication of ballots. However, the demand for clear evidence of systemic violations after only a couple days of the tabulation stage is bizarre. We would not necessarily have such evidence, which is largely held by election officials. As expected, we have a series of localized affidavits and allegations of intentional fraud. Yet, network analysts were dismissing any and all allegations within the first 24 hours, as tabulations were continuing. It is like saying that a patient has a low white blood cell level but insisting on stopping testing if you cannot conclusively say that there is cancer. These initial allegations may or may not be indicative of a more systemic problem. There is no reason to presume fraud but also no reason to demand concessions before we look at these allegations, particularly with the addition of sworn statements and at least one computer problem resulting in loss of thousands of Trump votes in Michigan. Half of this country voted for Trump and it is not much for them to ask for a review of the challenges — a right that the Democrats would be demanding if the positions in this close election were reversed. Moreover, those voters can be understandably skeptical to hear these instant dismissals from networks, which previously predicted a sweeping victory for Biden and the Democrats. Even if, as expected, these allegations are rejected, it is important for this country to have a full and open consideration of these claims and the underlying evidence.
Just when you thought the 2020 election could not be more bizarre, a hearing in Las Vegas on challenges by the Trump campaign went full Monty Python. After days of charges of fraud, we are finally at that “bring out your dead” moment from Monty Python and the Holy Grail. The Trump campaign has been claiming that ballots have been “cast on behalf of deceased voters” as well as thousands of ineligible voters in Nevada, and federal judge Andrew Gordon demanded the names. When no evidence was given, Gordon refused to intervene last night.
In the movie, two men try to toss a protesting old man on a death cart during the Black Plague. When the driver objects that the man is not dead, the thugs insist “he will be soon” and ask the driver to “hang around a couple of minutes.” After trying to convince the driver to wait, they just club him and throw him on the pile. As shown by Gordon, when it comes to elections, judges do not “hang around” for a bit. In federal court, you bring out your dead or your case is dead.
If the Trump campaign is premature in claiming a deceased electorate, the Biden campaign is premature in claiming Donald Trump is deceased in the race. House Speaker Nancy Pelosi referred to him in the past tense and Joe Biden as president elect. Philadelphia Mayor Jim Kenney called on the president to “put his big boy pants on” and concede like Al Gore even after officials said they were still counting votes.
Kenney appeared to have blocked out any memory of the 2000 election, when Gore challenged the results and fueled an intense battle. Trump is simply doing what Gore did. With George Bush leading in Florida by under 1,800 votes, his campaign sent him to claim victory and create the image of president elect. When Democrats challenged the results and filed lawsuits demanding recounts, they were viewed as fighting the will of the people. A meticulous recount led to a change of around 900 votes before the election was sent to a close with the Supreme Court ruling.
What came next is often overlooked. Several studies found Gore likely won Florida, but Bush was already sworn in as president. Democrats claimed that Bush was “illegitimate” and that the Supreme Court should not have ended the recount. As is often the case in our politics, the parties are now on different sides of the same issue. The consistent element is that the parties support the process to the extent that it is demonstrably in their favor. Trump appears to trust it when he is ahead but views any deficiency of votes as fraudulent, and Democrats want every vote included but not recounted.
We are finishing only the second of four stages in an election for president. After the voting stage, states began the tabulation stage. We will soon enter the canvass stage, in which local districts confirm their counts and face challenges or recounts. Finally, there is the certification stage, in which final challenges can be raised. In other words, Trump is not deceased yet. Biden has reason to claim his lead as the odds are heavily against Trump. One or two states could flip on a “Hail Mary” challenge. But Trump needs four of those to win in a feat that would hyperventilate Aaron Rogers.
Yet the public should welcome close scrutiny of these swing states. There are valid reasons to examine the figures based on the many unknowns in a new kind of election. The outcome will be determined by millions of mailed ballots in various states, some of which have never used such mailed ballots to this magnitude, and legitimate concerns were raised before the election.
States used rolls that are notoriously out of date and inaccurate. Some changed rules governing signature authentication or are accused of reducing the discrimination levels for machine authentication. In Nevada, the Trump campaign alleged that thousands of votes were cast from out of state and ballots were sent to dead voters. We cannot judge the merits of these claims until we see the evidence. It is difficult to see any problems without greater access to the ballots and the records of tabulation.
Just as some of us remain skeptical of such claims of fraud, it seems as implausible that this untested form of voting was used across the country without major glitches. Officials in cities like Detroit and Philadelphia with histories of election violations said the counts of mailed ballots were almost flawless, a claim difficult to rebut without review.
We need a review of counts in critical states to resolve a crisis of faith. A recent survey found that almost half of Americans lack confidence their ballots will be counted fairly. A Harvard study also found that only half of young black voters believe their ballots are even counted. This lack of faith in the electoral process has been fueled by the shift to mailed ballots but builds on growing distrust of our political system.
Past elections for president faced controversies over faithless electors who changed their votes after an election. The Supreme Court dealt with a number of such faithless electors from the 2016 election and resolved that states can force them to cast their votes in line with the wishes of voters. But this could be the year of faithless voters rather than faithless electors. We lost faith in our political system. Our leaders fueled doubts as Trump claimed the election was stolen, Democrats accused him of the same with his challenges, and Pelosi denounced Justice Amy Coney Barrett as an illegitimate.
We neither listen to nor trust each other anymore. Almost half the country voted for Trump, even after years of negative media coverage. We need neither concessions of defeat nor declarations of victory. We need transparency so that whoever is the next president can govern with legitimacy. This is why the involvement of the courts is not a bad thing. If nothing else, a judge can decline to do a post mortem on a living candidate on the same grounds stated by the driver who said, “I cannot take him like this. It is against regulations.”
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.