Below is my column in USA Today on the need for a federal commission on the 2020 election. While I opposed the challenge and the call for the ten-day commission, I do believe that a real commission is warranted. Indeed, the violence yesterday only further shows the deep divisions in this country over these lingering questions. However, there must be the commitment to a real commission — not another placebo commission
Here is the column:
I hate federal commissions. I have always hated federal commissions. Federal commissions are Washington’s way of managing scandals. They work like placebos for political fevers, convincing voters that answers and change are on the way. That is why it is so difficult for me to utter these words: We need a federal election commission. Not the one proposed by some Senate Republicans. And not like past placebo commissions. An honest-to-God, no-holds-barred federal commission to look into the 2020 presidential election.
With the challenge to the certification of election votes, some Republican members of Congress are calling to delay the proceedings for 10 days and impanel a commission to “audit” the results. There is precedent for such a commission. Just not good precedent. Indeed, citing the Electoral Commission of 1877 as a model of good constitutional process is like citing the Titanic as a model of good maritime navigation. The commission was an utter disaster.
The 1876 election commission
The commission was formed after the contested 1876 presidential election of Democrat Samuel Tilden and Rutherford Hayes. Tilden won the popular vote and was just one vote short of the electoral votes needed to win the White House. The election was marred by open fraud, including South Carolina certifying a vote of 101% of the eligible voters.
As a compromise, the commission was formed and consisted of 15 members: five Supreme Court justices and five members from each chamber of Congress. The key was that it was supposed to be composed of seven Democrats, seven Republicans and one independent. However, in a move that seemed calculated to secure his vote for Tilden, the Illinois legislature then moved to appoint the independent, Justice David Davis, to the Senate. If they wanted to buy his vote, it was a colossal failure when Davis decided to take the seat and leave the commission. He was replaced by a Republican, and the commission voted along strictly partisan lines to install Hayes, not Tilden.
In many ways, the Electoral Commission was a model for most federal commissions, which are designed for good politics and not good government.
An example is the 9/11 Commission, which was stacked with reliable allies to guarantee that no one — and no party — would be blamed for the negligence leading to up to the attacks.
The commission spent two years and millions of dollars. It went to almost a dozen countries, interviewed more than 1,000 people and archived over 2.5 million pages of documents. The result was a report that blamed no one specifically and since concluded that Presidents Bill Clinton and George W. Bush were “not well served,” in the words of the commission’s chairman, by the FBI and CIA.
You see, if everyone is responsible, no one is responsible. Despite showing that the attacks could have been prevented under existing laws and powers, the budgets and powers of both agencies were then massively increased.
That is not what we need. There are three reasons why the need for a real commission is needed:
►First, and most important, this was an unprecedented election in the reliance of mail-in voting and the use of new voting systems and procedures. We need to review how that worked down to the smallest precincts and hamlets.
►Second, possibly tens of millions of voters believe that this election was rigged and stolen. I am not one of them. However, the integrity of our elections depends on the faith of the electorate.
Roughly 40% of that electorate have lingering doubts about whether their votes actually matter. Most of the cases challenging the election were not decided on the merits. Indeed, it seems they haven’t even been allowed for discovery. Instead, they were largely dismissed on jurisdictional or standing groups or under the “laches” doctrine that they were brought too late. Those allegations need to be conclusively proven or disproven in the interests of the country.
►Third, there were problems. There was not proof of systemic fraud or irregularities, but there were problems of uncounted votes, loss of key custodial information and key differences in the rules governing voting and tabulations.
We have spent billions to achieve greater security and reliability after prior election controversies. Indeed, we had a prior election commission that failed to achieve those fundamental goals.
The importance of having a commission
A real commission will take a couple years to fully address these allegations. It will be meaningless if it’s stacked by the same reliable political cutouts used historically in federal commissions. It should be formed on a commitment of absolute transparency with public hearings and public archiving of underlying material before the issuance of any final report. That way, the public at large can analyze and contribute to the review of this evidence.
There is one other task for Congress. It should rescind and replace the Electoral Count Act passed after the Hayes-Tilden election. It is one of the worst conceived and crafted federal laws on the books. The constitutionality of that act has long been challenged, including some who argue that Congress has nothing but a purely ceremonial role in opening state certifications and counting them.
Courts are likely to recognize that Congress has a more substantive role, particularly when rivaling sets of electors are presented or there is clear evidence of fraud. However, the validity of such electoral votes should be left largely to the courts in challenges in the given states. That is why the current challenge is unwarranted. There is no serious basis to challenge the validity of the electoral votes certified by the states.
Reality check for Trump’s fantasies:Judges aren’t his pawns on election lawsuits.
The main challenge, however, remains the same: Whether Congress can appoint a real federal commission without rigging the result by appointing partisan members. In 1877, to quote from a speech of Ohio Sen. Allen Granberry Thurman, “It was perfectly clear that any bill that gave the least advantage, ay, the weight of the dust in the balance, to either party, could not become the law of the land.”
Nothing has changed. The stakes are too high to allow even a dust particle to tip the difference on the ultimate findings. The dust-free option requires a dependent, not independent, commission. Otherwise, the public will be the loser.
So, let’s have a commission, but let’s make it a real one.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors. Follow him on Twitter: @JonathanTurley
Jonathan Turley you dip$h!t. Your reasons why there should be a commission are laughable and absurd. Have you not been paying attention?
Mail-in voting was not the problem. A commission will not find problems with it because there are states that have done them for decades without a problem. One reason for the mistrust of mail-in ballots is simply because unfounded alarmist rhetoric designed to sow doubt about it had been pounded into voters, conservative voters, minds that there’s something sinister about mail-in voting. This is directly tied to Trump’s poisoning the idea for his own benefit. He’s a massive liar and you have been coddling his pathological lying like every Republican who has sought to kiss his ring.
Republicans have put into law ridiculously complicated procedures and limits on how one can vote because of unproven fears of massive fraud. Ironically it was Trump’s own lawyers who proved in court that such notions are unfounded.
Every election has its hiccups, but trump and his sycophants magnify anything that seems suspicious into a full blown scandal over a process or procedure that they themselves don’t understand because republicans purposely made it complicated over the same unfounded fears of fraud they created in their minds. It’s made this into a vicious circular logic that they can’t escape because they are too consumed by the irrational fear that a free and fair election will not produce the outcome the think they deserve.
As for 40% of the people who believe this election is rigged or full of fraud. This is only due to Trump’s incessant lying about the integrity of the election purely for his own benefit. Turley clearly you’re not that stupid. But your need to be an intellectual snob on the pretense that you’re somehow above the fray is your biggest problem here. You’re so mired in your own self importance that you have lost the ability to see things in simple terms.
We don’t need a commission. We already know what the problem is and it’s trump and his enablers which includes YOU. It’s those who enable him that had caused the most damage here. So pretending to just be an objective observer as you pretend to be is not protection from the fact that you’re an enabler. It’s as simple as that. You’re like Trump jr. who spent months spewing the inciting rhetoric and baselessly attacking our electoral system wanting to get the mobs riled up, only to suddenly call for calm and peace when he realizes he’s responsible for the violence that he created with his rhetoric. He yelled “FIRE” in a crowded congress.
I agree, there were complaints by election officials that were dismissed by legal procedure, even ridiculed. Had they been treated properly, investigated, audits or recounts if any validity we would not have seen the violence yesterday. When such complaints are handled as they were, it raises suspicion of cover up. That doubt in the integrity of the elections is far more important than who won the election.
For those who thought the sky was falling if their candidate lost drive around Washington. You will see monuments to Washington, Lincoln and Jefferson. They have all been replaced. Trump or Biden are no where near as important.
Tony, “ Had they been treated properly, investigated, audits or recounts if any validity we would not have seen the violence yesterday. When such complaints are handled as they were, it raises suspicion of cover up.”
This was not about being treated properly. They WERE being treated properly. It was the irrational claims being made that had no proof at all. Affidavits based on hearsay and twisted interpretations of procedures were the only “evidence” they had.
Their suspicion is based purely on ignorance and the constant lying from the president and his enablers. These people who “believe” the vote was rigged, stolen, unfair, etc, etc, etc. only believe because they are too ignorant to realize they are being lied to. Nobody likes to admit they have been taken for a ride. Especially one like this.
No commission will ever undo the damage trump inflicted on these people’s beliefs. They will only be convinced when extraordinary proof tangible proof, proof so undeniable that they will deny the reality that their beliefs were all based on lies.
These people don’t believe in democracy, not as long as it doesn’t guarantee that they will remain the dominant influence in our society. The changing demographics are threatening that and Trump exploited that fear by deliberately undermining democracy. He portrayed himself as a bulwark against the inevitable change by attacking the very process that will eventually make it possible that they will at some point BE the minority. Only an authoritarian can guarantee that and that’s what Trump needs to keep feeding his narcissistic ego. To be the hero to these people he sees as just suckers.
Those who have been shamelessly and knowingly enabling Trump are doing so for their own selfish interests as well.
You will never get an honest, objective commission while the people just “elected” are in charge. You won’t even be able to have an honest election.
Name it the ASHLI BABBIT COMMISSION. They shoot one of us in the face at close range, killing an unarmed woman instantly, then they want us to apologize for breaking some windows and doors.
F the GOP.
They killed a traitor who was attacking the capital and trying to enter a protected area.
A male officer, killed a female protestor amongst a group of protesters and some rioters, who were most peacefully protesting, the systemic injustices at hand while standing on and entering tax payer owned federal land, as of right.
LOL
I’m just fing with ya, eh? Got jokes! 😉
Hrrrmmm… I thought my comment would get more visceral reactions, but I guess not.
Oh well!
Oh please. At worst, she committed a property crime. I guess that should be punished by death because you don’t like her politics. Take a breath, say a prayer, stop and think, whatever. This woman fought in wars started and continued by people whose personalities were more pleasing to you. Say a prayer for her and I’ll say one for you.
I’m not aware of any evidence that lethal force was needed. We should be concerned about unnecessary use of lethal force whenever it’s used.
The Capitol was repeatedly on fire, but they saved their live ammo for the Trump rally.
Did you catch the name of DC LEO who shot and killed the woman? There is a reason for that
Had she been black…..LOL…as if I need to finish the sentence!
This country is such a crock.
Why am I not surprised that the liberals posting here are uniformly against any commission? They got their result, orange man bad is now about to be history, and life is good. Why disturb things – especially if proof of mal/misfeasance could be uncovered? Why mess with future elections when they couldn’t win this one honestly?
This travesty of an election will have a long, dark shadow on American politics.
I’m a liberal, and I already said that I support such a commission as long as the remit is broad enough to include the actions of Trump and his allies.
Apparently you’re surprised because you’re ignoring the counterevidence to your mistaken belief.
I’m actually a paid troll that uses multiple avatars, profile names and earns money by attacking Turley, Trump and otherwise clog the board with talking points supplied by my employer.
It’s a new year and I’m trying to turn over a new leaf
Help me….please!!!
Game, set, match!
You’re a troll describing yourself while using my name, as is clear from your avatar. You do indeed need help.
The 10:19am comment is from me, CommitToHonestDiscussion. I must have mistyped my email address when I posted the comment.
Ok, I’m slipping on day 7 of a new year, and here is the truth:
my girlfriend gave me a dirty needle of crack, and I used it because she said it belonged to Hunter Biden. Looking for that joojoo juice to work these boards all day
🤠
I support Professor Turley’s suggestion for an election commission. If it happens, I hope he will be asked to serve on that commission. I don’t think it should be packed with just politicians.
He would be an awful person to name to such a commission. He has shown over and over and over again in his columns that he is sloppy with evidence and sometimes even dishonest about evidence.
Not to worry. The Democrats may try to ram through amnesty and national motor voter. In that event, secession will likely preclude any commission.
But what do you do when many of the people who believe the conspiracy theories are QAnon followers who believe a lot of weird stuff, like Trump working to expose this international child sex ring. So how do you appease those people with a commission, when if they do not find anything the people on the commission will just be accused of being part of this international child sex ring.
I mean, look at Lin Wood’s twitter feed and see how large they think this conspiracy goes. There is no commission that is going to appease the clinically insane conspiracy theorists. Any evidence against their beliefs is just more proof of the conspiracy.
https://www.thegatewaypundit.com/2021/01/video-trump-supporters-stop-antifa-breaking-windows-capitol/
Video: Trump Supporters Stop ‘Antifa’ From Breaking Windows at Capitol
Videos taken of Trump supporters gathered at the West Front of the Capitol during Wednesday’s protest show that they stopped a person whom they believed to be an Antifa thug who was trying to break windows in the Capitol. In one of the videos, Trump supporters can be heard calling out, “Don’t break the window!” “No Antifa! No Antifa!” as several Trump supporters intervened and stopped the attack by someone dressed and acting like Antifa but with a Trump sticker on the back of their helmet.
A second video taken from a closer position shows the ‘Antifa’ thug again beating on the window with a baton, weakening the glass, as Trump supporters loudly boo and call out, “Antifa! Antifa!”. A Trump supporter wearing a red MAGA hat grabs the ‘Antifa’ thug and forcibly shoves the thug away from the window as the crowd cheers.
Violence by Antifa on the south side where Trump supporters were told to March to. Supporters stopped the breakage but he started again later.
— Emma Right (@emmbeliever) January 7, 2021
That they “believe” the person to be a member of Antifa doesn’t make the person an Antifa member rather than a Trump thug.
Plenty of people who committed crimes yesterday are known to be Trump supporters.
What a surprise that Turley omits “Fourth, Trump tried to pressure state officials to change the results.” /s
I support having a real commission, Just make the remit broad enough to examine the machinations of Trump and his allies (like Powell and Wood) along with other issues.
And the focus will be on? Gerrymandering? Coordinated attempts at voter suppression? Or the lizard overlords and pedophile vampires the rioters we’re trying to stop yesterday? Let’s pretend Trump and his enablers had a point about Hugo Chavez running the election this year. Let’s pretend the move to decertify the election wasn’t a combination of crazy, often patently racist, cranks being egged on by cynical Republicans like Cruz and Hawley. As long as your commission begins by exploring the rejection of the statements and conclusions of the Justice Department, over 90 judges, Homeland Security and every other intelligence agency that looked at the election, and the mostly Republican Secretaries of State THAT THE ELECTION WAS FAIR AND LEGITIMATE. As long as your commission focuses on the motivation of the Trump Administration to call the election “rigged” months before it occurred, well then and only then might it make sense to spend millions of dollars rewarding Trump and his supporters in and out of government for intentionally trying to destroy our democracy. Hold on, there’s a story popping up on Info Wars. It looked like OANN and NewsMax are in a bidding war to get Professor Turley away from Fox!! Wait, holy cow! Trump University has it’s offered him tenure! To bad the only expert witness needed at Trump’s next trial will likely be a forensic accountant.
No, of course not, you can’t have them look at Republican voter suppression efforts. You must focus on the issues the only Rs care about.
Well reasoned argument here. Of course it won’t satisfy the hypocrites, but nothing will
Look into the election in Maine.
The easiest, simplest response? >>> election *month*, many polling locations, no reporting of results until a final count has been taken. Probably like a two week counting period. That’s an immediately adoptable plan. The wider, systemic problems will take more time and insight to remedy and should be handled by a sweeping commission. We’re there, America. No use feeding the denialism any further.
Elvis Bug
Most commissions are bordering on farcical.
Just look at Mueller.
Agreed in principle, Turley. I don’t feel like it should just be about the ’20 election. We need to review and remedy to the degree possible dark money, voter suppression, influence peddling, a deeply flawed electoral college, congressional gerrymandering…, the whole nine. It needs to be a ten year commission. America is broken by factors the ‘founders’ couldn’t forsee.
And the very first step in the process should be the 25th amendment being institute, today, on Donald Trump. Even if there is no chance the process can be completed by the 20th. To take the normal thumb up the butt Washington approach just is not a sufficient response. The country is broken.
Elvis Bug
Yes, lets just give the mob credence. Lets just keep acting like the votes haven’t been looked into already and counted and recounted. Lets act like SIXTY suits weren’t struck down by the courts. Lets pretend he already hasn’t been to the Supreme Court who refused to hear his nonsense. Lets feed the nonsense by “soft pedaling” it, as you do so well. Lets count and recount some more, feeding the mobs sense that they have a legitimate gripe, fueling Trumps conspiracies by pretending it was some massive fraud, and lets do it under the reasonable sounding guise of “so we can quiet the mob” and because a few hundred years ago it was done. Like we’re living in 1876. Like I said yesterday Mr Turley. While you clearly aren’t going to end up with that Scotus nomination you’ve worked so tirelessly for for the last 4 years carrying Mr Trumps water for him so dutifully, (while always being careful to give him a soft slap or two for the appearance of neutrality) you will no doubt pass Johnny Cochran as the nations most educated, eloquent and reasonable sounding mob lawyer, who ever lived.
Although at this point, your notion that this crowd of thugs will ever be convinced by any panel or investigation after 60 court cases were struck down, and the Scotus itself refused to become involved, after every single former President and defense secretary heralded the warnings, the notion that you feel another investigation is somehow warranted and that we should do it because of the violence, as if we as a nation should allow armed thugs to coerce us into appeasing their demands, doesn’t bode well for your vision, wisdom or intellectual clarity. The President called a group of armed thugs to the white house, charged them up with lies, then sent them to the Capitol, literally instructing them to “surround the capitol”, promising he would be there with them, then disappeared into his chambers to see if they could pull it off. He obviously intended to go as he STATED he intended to, but only if they were successful in securing the capitol, and garnering some measure of support from Law Enforcement and members of the Senate. If that had happened, if there was mixed support for the siege on our Congress, then he would likely have declared martial law and joined them. But instead he watched from the safety of his chambers, tweeting out support for the thugs and then when it fell apart sheepishly told them to “play nice and go home” effectively, all the while condoning what they did. And the next morning, does Jonathan Turley, the reasonable, educated, articulate foremost Constitutional law scholar in our nation come out and address the outright treasonous actions of this President? 4 People are DEAD this morning Mr Turely, because of this presidents words and actions yesterday and the people like you who soft pedal him. 4 people are DEAD. And you think we should kowtow to this armed mob of idiots? I didn’t vote for Biden. I’m not a democrat. I am with you that they are silencing free speech, doing damage to our first Amendment protections and all of which needs to be addressed. In the courts. Reasonably. As a great nation does. But here you are, the morning after a President literally called a rabble army of insurrectionists to the White House, and sent them to our nations Capitol to literally attack the Congress and overthrow our government, here you are not addressing him as you morally and ethically should be doing. Instead here you are, carrying water for his nonsense, doubling down on feeding the conspiracies by pretending they haven’t already been addressed by our process, and dismissed, instead suggesting we should appease the armed mobs so they don’t do more damage. Incredible. Oh and that applause you hear? That’s Frank Ragano cheering you on from the other side.
Tens of millions only believe that the election was rigged and stolen because the president has claimed it repeatedly (just as he claimed in 2016 that there were millions of illegal votes against him), and Republican leaders went along with it for months, instead of defending the election and American democracy.
There is no need for a commission to determine whether mail-in vote is open to fraud. Just ask the French or any number of European states.
This election Wisconsin broke the rules set by its legislature for mail-in voting, as did Pennsylvania, so there really is nothing to discuss.
As for evidence of fraud, corruption, vote-harvesting, vote-buying, well, the courts were irrelevant because not a single one examined the evidence on offer. They declined to hear it.
Mail-in voting, like on-line voting, invites fraud, and the burden of proof that it does not should be on those who advocate its use. They need to should chain of custody, assure ballots are only mailed to registered voters, and so on.
A link for some data and discussion regarding mail-in voting, a first step to understand why so many countries whose citizens value free and open elections ban it. Of course, free and open elections assume an impartial media, at least that is the standard the US and EU apply to other countries.
https://poseidon01.ssrn.com/delivery.php?ID=871071114116011006098065067091010111054025049035042016124006124010115065031007003120101119000061008038050082070069107003024110103082058064063020104004028017066023080085089100123101126003072012012096019081115112001001008002007115088115081002096097&EXT=pdf&INDEX=TRUE
Jonathan wrote, “let’s have a commission, but let’s make it a real one.”
I completely agree. All aspects of this election need to be looked into.
I’m going to give democrats and liberals the same respect that they’ve given me as a republican for the last 4 years.
+10
Obviously … considering the unprecedented circumstances of the 2020 election, an instant, congressional or otherwise authoritative national examination of the election – with subpoena powers, under oath, with teeth should’ve been automatic. It is still required …