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
REGARDING ABOVE:
Why is this video here??? Who actually cares enough to watch??? All it does it take up space.
Petition Professor Turley for a refund of your paid subscription you blithely Moronic beatch
Can’t get laid again on Grindr? No one interested in your stinky arse so you come here and show it off again and again?
Stop trolling.
I’m not sure a commission is the right way to go. Mainly because I can’t think of one commission whose findings have made a difference–in fact, most seem to make things worse or feed into conspiracy theories, such as the JFK-assassination one. Commissions also take way too long to get their results out and lack any enforcement teeth. Voting systems cannot wait.
There are measures that could be taken and invoked on the federal level, such as requiring that state voter rolls be cleaned up based on matching and reconciling inconsistencies based on SSA death data, county-coroner office death data, USPS change-of-address data, IRS data, etc. Voter ID should be required just as ID is needed for many other societal requirements. Measures that have been successfully done in cleaning up Florida’s voting system should be seriously considered–even under our Republic system there can be federal voting requirements invoked. And why have most states moved to the computer systems and mail-in practices that have been soundly rejected by other countries and by Carter in his earlier days of monitoring other countries’ elections? (The answer is that these systems and practices should be banned here too.) There should be voting counts only on Election Day and not later, period. No ballot harvesting or unmanned drop-off boxes either.
The only way to solve the problem is not to search out the guilty (though perhaps that should be done) rather to restructure our election procedure to ensure one vote for one citizen at the designated precinct with voter ID and all the rest. Any absentee ballots have to be carefully scrutinized and discarded if appropriate measures have not been taken even if minor. Voting outside of the precinct should be discouraged. We need fixed rules for all states where those rules do not change at the whims of politicians. We need to rid ourselves of high tech voting having paper ballots that can confirm any counting machines.These are just a couple of the basic changes necessary.
There is no question in my mind that criminality existed to a greater extent in this election than ever before. Criminals in this case have a lot of political influence and even more political support not to rock the boat no matter how they feel about the election. Why would any commission involving politicians want to dig into their own secrets where they themselves have committed self serving acts that were not for the benefit of the nation.
“The Trump campaign lawyer who said there were a “non-zero number” of Republicans observing Philly vote count asks to withdraw: ‘client has used the lawyer’s services to perpetrate a crime and the client insists upon taking action that the lawyer considers repugnant’”
https://twitter.com/Elaijuh/status/1347205394393927697 (includes a copy of the request)
This is in the Trump Campaign v. Philadelphia County Board of Elections suit.
I wonder what crime and repugnant action he’s referring to
What a pathetic rehash of of the misguided reasons put forward by Senators Cruz and Hawley. If you really want to understand why many Americans don’t think their vote counts you are going to need to have the courage to start at the bottom and look at how gerrymandering and other voter suppression techniques as well as campaign financing are used to diminish trust in the electoral system. Pretending that a review of how votes are counted and tabulated is going to solve voter distrust is just the lazy man’s attempt to avoid doing the hard work of addressing the issue of voter skepticism and mistrust of the whole voting system.
I need money for college.
New leadership is needed….What is best in life?
Crush the enemies; See them driven before you, and elimination of the women
The main problem is that there are outright conflicts-of-interest for partisan elected officials who have responsibility for designing and administering elections. Perhaps the Founders didn’t anticipate the degree of partisan tribal politics that could develop, and erred in not creating a powerful, neutral non-partisan element that could oversee the processes, people and equipment.
Yesterday, a lot of Trump supporters broke into the Capitol during a joint session of Congress.
When this criminal insurrection proved to be unpopular, by the evening, FoxNews was promoting the idea that it was really Antifa that did all of that, even as Trump thanked them for what they were doing. Even after one of the intruders was shot and turned out to be an avid militant Trump supporter. Then Congressman Gaetz says on the floor of the House that it was Antifa and not Trump, and they all can support the cause again. It is positively Orwellian.
Now, can you show me a commission that, should it find no systemic fraud because there is no systemic fraud that will convince the people who get their news from Trump and Hannity and Ingrahim?
This was not ANTIFA. What trump supporters are doing with that line of excuses is they are desperately trying to deflect from the massive pushback and outrage at what they did. It’s the moment they realized, “oh sh!t, this was not a good idea and I’m implicated in this”. Now they seek to blame it on something else. It’s so stupidly bad to even attempt that excuse. They are literally saying ALL those people were ANTIFA? Hey dumb asses, ANTIFA members don’t parade themselves without covering up their identity. They don’t proudly pose for pictures without their face covered.
Trump supporters on the other hand are proud to be part of it, so much that they have no problem taking selfies that can fully identify them.
This was an attempted coup. A real one. This was not a protest. It was a deliberate attempt at preventing the transfer of power. Trump himself encouraged this mob. He wanted it.
Trump will be held accountable. If we are to put out a message to the world that we don’t tolerate this kind of behavior Trump HAS to be held accountable.
I didn’t listen to anything Trump said yesterday but I saw with my own eyes that there were “Trump supporters” yesterday that weren’t dressed the way they’ve been in earlier protests–there were elbow pads, helmets, and other Antifa gear. How liberals and MSM talking heads can honestly believe that there were no Antifa people in that crowd, and yet say that they were inside BLM protests, is beyond me. Most of us have independent brains and can see for ourselves.
DV, “ there were elbow pads, helmets, and other Antifa gear. How liberals and MSM talking heads can honestly believe that there were no Antifa people in that crowd, ”
DV, elbow pads, helmets, bulletproof vests, camo BDU’s etc. All are clear choices for misguided nut job militias. Those who often fantasize about just this kind of event. They “train” constantly in some secluded forest somewhere for something like this.
ANTIFA members don’t parade themselves in front of everyone, drawing attention to what they are doing. They seek anonymity. These seditious trump supporters were gladly participating. They were not calling out these ANTIFA provocateurs in the middle of the insurrection. They didn’t stop any of the violence or destruction of property. They gleefully participated in it.
Your “independent” brain needs more work to figure it out.
This was an attempted coup incited and encouraged by Trump. Even Republican congressman recognize it as such.
Well, DV, if you have an independent brain you probably remember Enrique Tarrio, the chairman of Proud Boys, posting on Parler one week ago that the Proud Boys will attend the Jan. 6 rallies ‘incognito’ dressed in black:
“The ProudBoys will turn out in record numbers on Jan 6th but this time with a twist…
We will not be wearing our traditional Black and Yellow. We will be incognito and we will spread across downtown DC in smaller teams.
And who knows….we might dress in all BLACK for the occasion.
The night calls for a BLACK tie event.”
https://parler.com/post/c741b78505a54150bdf63d079952e8f0
This was reported by multiple sources, one listed below:
Business Insider:
“Far-right group Proud Boys claim they will attend January 6 DC rally ‘incognito’ and wear all-black to blend in with antifa protesters”
https://www.businessinsider.com/proud-boys-attend-january-6-dc-rally-incognito-all-black-2021-1
This ‘tactic’ was confirmed by, “Joe Biggs, an organizer for the group, confirmed the alleged plans on his Parler account. In a video, he said: ‘We will not be attending DC in colors. We will be blending in as one of you. You won’t see us. You’ll even think we are you. ‘ He continued: ‘We are going to smell like you, move like you, and look like you. The only thing we’ll do that’s us is think like us! Jan 6th is gonna be epic.’”
Of course, I’m sure this news source is unacceptable to to you, so maybe consider that the Proud Boys’ chairman–actually his full title as given on Parler is ‘ProudBoy Chairman 4th degree Warlord Super-Villain Entrepreneur American Supremacist’–meant what he said.
Now, why would such proud boys abandon their colors in their finest hour?
That should tell everyone something. Whether or not one is wearing Antifa garb, Proud Boy garb or regular dude garb those breaking the law should be arrested. It doesn’t matter who or what they support. What matters is that they do so legally.
Unfortunately, Antifa and BLM were given a pass when violence occurred. They continue to be the most violent except for the outsiders on both sides.
What we are seeing is a breakdown of civil society that is enhanced every time the rule of law is not followed.
Antifa and BLM were given much more than a pass.
Their violent actions brought them beneficial results.
The actions yesterday are a direct consequence.
Rewarding the violence sent out a message that violence was now acceptable and a legitimate means to an end.
Complaining because some Trump supporters got the same message is hypocritcal
They weren’t given a pass. More than 14,000 protesters were arrested across the country during the George Floyd protests.
Believe whatever you wish. Most of what you say is erroneous or meaningless so I don’t think it worth the time discussing things with you. Don’t bother answering but one has to consider how many are in jail today and how many were put in jail.
An unruly crowd can lead to 100 people arrested at a time and all released the same day. No trials, no jail, but they were arrested. For many that is their goal.
And almost none of them were prosecuted.
Massive numbers were bailed out by the left, and given the bail money that others paid for them.
The arrangement was so ludicrously stupid that rioters were actually profiting from rioting and getting arrested.
Since Gaetz is the republican version of Swalwell , no surprise there – they are both “bomb throwers “, just different sides.
There is no way Gaetz knows this was Antifa, no one knows “ who” Antifa is anyway but what we do know is that the marauders, rioter, mob , insurrectionists, traitors, protestors-, traitors- just a sample of descriptions used on the Telly yesterday, take your own pick, broke the law and should be arrested and prosecuted to the full extent of law.
New leadership is needed….What is best in life?
Crush the enemies; See them driven before you, and elimination of the women
He is Hawt!!! Daddy!!!!!
You’re not Svelaz.
That ship has sailed, Professor Turley – manically – across the sea, over the rim of the world, on a course set for hell.
The kid-glove treatment of BLM rioters by the press and politicians—and the rapid ostracism and adverse career consequences to anyone who was sloppy criticizing rioting—shows where “privilege” really resides in 2021 America. Don’t want violent reaction by political losers? (I don’t!) Then the media shouldn’t celebrate violent reaction by the politically privileged. And I use “privilege” intentionally here
I’m just disgusted at the double standard, and worse, the gaslighting and amnesia that somehow BLM rioters were treated worse than the Q rioters.
Leftists tried to breach the courthouse in Portland last night and not a one will be prosecuted.
NOW he speaks? Where was Mr Turley before the blood dried? The evidence is long gone! There are too many variables, aggravated by the push from the Left for mail-in ballots ( which every politician acknowledges is an opportunity for fraud ).
It’s ridiculous to think that an administration that achieved political power through weaknesses in a flawed voting system would be in favor of correcting those flaws!
So you are proposing a “real” commission. To the 40% or so of the public who believes the election was stolen, if this commission tells them the truth but does not tell them what Trump and the right wing media tells them, then it will just be viewed as the “Deep State” – as everyone else who tells them the truth but does not tell them what Trump and the right wing media tells them.
That’s not the point of the Commission. It’s to point out needed reforms to bolster public confidence in the process and results. There may be some recommendation about public relations regarding results.
So you mean the kind of effort Stacy Abrams has been leading in Georgia; to help combat voter suppression?
No more Dominion voting computers, All mail in ballots must be requested with a copy of a photo I.D.
No. Why?
1. The voter fraud narrative is a lie. Giving it any credence just rewards those who perpetrated the lie. We must establish that political lies do not get respect. (And I know you all are going so say “Russia hoax, but no, there was quite a bit of evidence for that).
2. The Trumpers won’t believe the results anyhow. They don’t care about reality.
3. The Ds will (rightfully so) insist on also including the Republican voter suppression tactics also, which would be a non-starter for the Rs.
Santa brought you a new VPN account eh?
Every election has problems with counts, mistakes, and actual fraud. Tho it is low in numbers per election, it does not negate there were troubles this election. For those of you that think the Trump side is trying to whine and possibly steal the election, if the shoe was on the other foot, would you react any different? Before you deny that it would be different, take a look at the screaming about voter suppression, racism, and calls of fraud from the Democrat side. No matter it is not happening in great numbers, it is what people do when their side loses.
Personally, I was not happy about mass mailings of ballets to unconfirmed people and certainly not happy Biden won. Yet, I am not seeing mass fraud, just the usual issues every election seems to produce. For those that think there was mass fraud, answer why down ballots went the other way against the Democrats at both Congress and state levels. Would it not be probable if one was going to steal an election, the whole ballot would be stolen? Yet, it appears not.
I support an actual commission on this election to both learn and report the problems as well as fixes to ensure this does not happen again. Finding non-partisans is going to monumental and I worry about the lack of resolve.
If nothing else, it may cool tempers from the last two elections. More importantly, it just may fix ongoing issues to at least correct any potential problems.
I agree with your post and see a federal commission as perhaps a start to examine what happened.
But the fix is at the state level – we have a hodgepodge of different election laws from 50 states , which is their right over the constitution,state legislature are responsible for writing those laws and each individual county through their board of elections to carry out those through procedures.
Coming into this presidential election cycle we still had states that did not permit no excuse absentee voting ( se New York for example), had no laws governing curing of ballots, harvesting of ballots , time limits for posting ( mail) receipt of ballots, requests fo absentee ballots , curing voters rolls etc.
The pandemic and fear of spread of covid virus necessitated the need to provide for greater use of absentee ballots, so those states, who had no and or limited experience handling, processing those types of ballots rushed to establish laws for this election which have been shown to be incomplete and lacking.
What can be done on the federal level that is constitutional considering that the running of elections is a states right ?
Perhaps greater sharing of databases to keep voters rolls updated , prevent double voting , recommendations for “ best practices “ – regarding voter accessibility, election security , logistical realities ( dates for requests for absentee ballots, dates for receiving absentee ballots), in person voting pre election, Election Day voting.
Then there is the issue of voting machines and the software – audits needed.
Lastly, complete transparency on what happens when you mail your absentee ballot, or deposite in a “drop box” – the procedures that are followed to ascertain that the chain of custody is not open to mischief makers. Make a video, put it out for voters to see exactly how this is handled.
Michael Brown was commemorated on an NFL helmet even though the Obama Department of Justice investigation found that a police officer’s killing was legally justified self-defense because Brown was attacking him and trying to take his gun.
if cops had fatally shot an unarmed BLM rioter, her name would be on NFL helmets, there would be weeklong nationwide riots, and we’d be seeing the video for months. (Even Jacob Blake is treated as a martyr.)
The commission needs to be time bound to about a year. The findings have to be available to the states and counties in time to be actionable for the 2022 vote. (And the raft of lawsuits from ACLU and others claiming disenfranchisement yet unable to explain record minority votes year after year).
It should spell out “best practices” on voter registration: e.g. – there are automated feeds from IRS, SSA, national change of address, and ERIC https://ericstates.org/ as well as in-state lists of deceased and newly ineligible (NCM and Felons). It should spell out a gold standard for registration role hygiene. It should also discourage or spell out a lengthy set of hurdles for same-day registration. (e.g. if you offer it, you should have a real time feed to check all of the above sources as well as requiring a REAL-ID compliant ID).
It should spell out “Best Practices” on early voting. e.g. a uniform 14 consecutive days prior to the election, no more or less. A certain % of regular polling sites should be open.
Voter ID with a REALID should be required. Accommodations that allow persons without ID to vote should require that they promise to cooperate with the state in obtain a free REALID compliant ID. e.g. you get to vote if you have enough other documentation and can document the hardship for not having one but then you have to work with the nice people from the state when we show up to help you get your free ID.
It should spell out “Best Practices” on absentee ballots. e.g. Only registered voters can request one. The request must be vetted against the list above. There needs to be a set deadline to request one and they must be post-marked by election day. There need to be controls on the documents. Each ballot/envelope needs to have an individual serial number, bar code, and QR code. They must be tracked from the moment they are printed. Every absentee ballot printed must be accounted for in real-time with independent physical confirmation. You print a million, mail out 400k, receive 300k = there better be 600k in a warehouse all accounted for. Similarly there needs to be uniform standards on signature matching upon receipt as well as uniform standards on election observers to witness the opening and separating of absentee ballots and envelopes. There also need to be uniform standards on “reasons given” (surgery, vacation, military service) where you will be unable to vote in person in the 15 days (14 early + election day) preceding. You should also be required to put your REALID ID # on the request for absentee ballot and on the envelope you return.
Ballot Harvesting should be illegal.
Vote by mail (other than absentee) should be illegal.
Poll workers must have minimum standards: e.g. cannot be felons, cannot be related to managers, cannot be party officials or paid staff of any campaign and cannot be paid for by 3rd parties (either directly or indirectly).
Jurisdictions should not be able to use funds or other resources from 3rd parties (non-profits or individuals) to conduct the election.
There should be required training and rehearsals for election workers for: the early voting period, election day, and the absentee process.
There needs to be a full review and publishing of electronic vote counting methods and practices
————————
Finance:
Fund raisers should be required to ask, in addition to occupation, Is this donation part of a bundler? if so name the bundler. The practice of bundling needs to be brought into the light and publicly disclosed.
Funds from outside the US are not permitted by law but there are few controls to prevent it. The payment card industry https://www.pcisecuritystandards.org/ can recommend some basic controls (checking IP address, checking BIN of the card, checking physical address entered by the person, etc).
The PCI can also recommend standard fraud controls to detect and refuse lost/stolen cards.
Election law does not require donor info for amounts under $25 via card, because it is traceable to the card if there is an issue. The problem is that gift and pre-paid cards are anonymous. The law should be amended to require full disclosure of donors when using a gift or pre-paid card or other anonymous payment like bitcoin.
Lastly – none of these controls mean anything if they are not enforced. If county registrars, election officials, and secretaries of state do not fear criminal prosecution – then all the controls in the world will not save you.
Yesterday, Ted Cruz cited “a recent poll” as evidence that half of the country believes the election was rigged. That poll was taken a week after the election. After the poll was taken, 60 judicial reviews by federal judges & the Supreme Court summarily dismissed the lawsuits filed by Trump attorneys & the state of Texas seeking to invalidate millions of legal votes in swing states which Trump lost.
Two months ago, Turley accused Democrats of having double standards after they demanded multiple recounts in Florida in 2000. So what does Turley now say after numerous recounts have been done—including 3 in Georgia by Republican state officials–to confirm Biden won all of those states? He insists an election commission is warranted to erase any doubts by Trump supporters who dutifully believe Trump’s ongoing claims that he won the election in a landslide & are willing to storm the Capitol building to stop Congress from verifying Biden as our 46th President.
Turley boldly cites yesterday’s violence as evidence an election commission is needed. He presumably believes Trump supporters who have lingering questions about the 2020 election will accept the findings from an Election Commission which would only confirm what 60 judicial reviews, numerous recounts, Bill Barr verifying that the Justice Department found no evidence which would overturn election results & the certification of Electoral College votes have already revealed: Biden won a free & fair election.
Yea and the moon is made of blue cheese
Just in Georgia and Pennsylvania, the vote was not constitutional, Therefore Biden was not constitutionally elected. End of argument.
The courts don’t agree with you.
“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.”
Did you miss this point by Turley?