By Mike Thompson Sr.
Recent events suggest that the pursuit of power may be as corrupting as holding power itself. It certainly makes hypocrites of most. Consider the Democrats today who have been saying that Trump must concede the election for the good of the country. These are the same folks who: told Biden he should not concede if Trump was ahead on election night, spent 4 years investigating Trump for colluding with Russia-an expensive romp that found nothing, because there was nothing to find and they knew that when they started the investigation-and in 2000 supported Gore’s contest of the election for 37 days. Furthermore, this group applauded when comedian Kathy Griffin held up a mock-up of Trumps severed head thus illustrating there is such hatred of Trump many would go to any length to remove him.
Of course, many Republicans who called on Gore to concede in 2000 now support Trump’s recounts, audits and suits. Interestingly, in American politics today, the left files suits claiming voter suppression before elections. It seems they do this largely to improve base turnout. However, the suits often prevent the implementing of regulations on the right to vote, that most other countries have. Notably, such regulations, like deadlines to receive mail in ballots and allowing ballot judges, might avoid some of the problems we are now seeing litigated. Of course, loyalists know “suppression” or “fraud” when they see it. Consider, 95% of Democrats now say the election was free and fair. Conversely, 70% of Republicans now believe the election was not free and fair despite constant media promises they were.
Others claim there never is voter fraud. For those, the 1948 Texas Democratic Party Primary election between Congressman Lyndon Johnson and Governor Coke Stevenson is worth review. In that election, the media initially called the election for Stevenson. However, in the days that followed additional votes were located, the most famous of those being the votes found in box 13 from Alice Texas. Litigation challenging the results followed, in state and federal courts. The State of Texas even intervened to protect the integrity of elections. Attorneys, many investigators (including Texas Ranger Frank Hamer, of Bonnie and Clyde fame) and subsequent journalists have all thought it curious that the votes of box 13 had been cast in alphabetical order, with verifications signed for those votes in the same color ink and the same handwriting. Texas Monthly has written about the ongoing search for box 13, still unfound to this day. None- the-less, the federal courts decided they had no jurisdiction to intervene in a party primary because they were not a federal concern. Johnson v. Stevenson, 170 F.2d 108 (5th Cir. 1948). Had it been an election for United States Senator rather than the primary of essentially private interests, we do not know how the 5th Circuit and Supreme Court might have considered the case. That bridge was partially crossed in Bush v. Gore, 531 U.S. 1046 (2000). However, federal courts are still hesitant to involve themselves in civil post-election challenges. They can, and frequently will dismiss them for lack of standing, because there is no legal error to remedy. Yet the question persists, if a court finds no standing, does that mean there was no fraud?
The legal apparatus to review and challenge election results is not new, as the Johnson v. Stevenson matter shows. Election administrators admit that there are mistakes (or fraud) in many elections. For example, the Heritage Foundation cites recent local elections in the towns of Perth Amboy, New Jersey and Gordon, Alabama showing such fraud. However, few change enough votes to alter the outcome of an election like those did. It is not clear whether the Trump claims, if proven, would change enough votes to make a difference. If not, the courts are likely to avoid election challenges.
Still, illegal voting when caught can lead to criminal charges against the actors, even if the votes do not change an election. In Texas, the Election Fraud Unit of the Attorney General’s Office recently charged a social worker with 134 felony counts of election fraud claiming he acted as an agent of folks at a nursing home in Mejia Texas requesting voter registration applications for them without their consent. Fraud (or mistakes) do occur, and a fraudulent vote does in fact cancel out a legal one. Such actions should be prosecuted when caught to help protect the integrity of the system.
The charges of fraud and disenfranchisement of voters
The charges of fraud from the Trump campaign are multifarious and cover a number of states. However, the charges made on TV and the actual court pleadings seem to differ. For a full discussion of the charges, these two sources have a summary of the suits. Compare: “A dozen compelling allegations of voting irregularities in 2020 election”, John Solomon November 23 at justthenews.com/politics-policy/elections and “Trump’s election fight includes over 30 Lawsuits. It’s not going well”, Pete Williams, November 23 at www.nbcnews.com. There are serious charges, some supported by sworn affidavits made under penalty of perjury. It is not fair to suggest those are frivolous as some in the media, including conservative media like National Review on Line, have done. In fact, the way NRO has treated many of the charges may lead readers to wonder if we would be better off ruled by the first 100 names of the Boston Phonebook than the writers at NRO. Below an effort to hit some of the highpoints of the charges.
First are claims about GOP poll watchers being prevented from meaningfully participating in reviewing and validating the ballots. In this group are charges that GOP poll watchers were kept away from where ballot verification was undertaken and votes counted. There are also charges that after GOP poll watchers were sent home in Fulton County Georgia, counting was resumed there. The claim follows that votes were counted in these situations, which should not have counted. The Pennsylvania Supreme court has dismissed cases of this type determining the election officials acted within their discretionary authority in how to conduct the count. In Re Canvassing Observations, 2020WL 6737895*8 (Penn. 2020)(“…we deem the absence of proximity parameters to reflect the legislature’s deliberate choice to leave such matters to the informed discretion of county boards of elections…”). It is not clear how many votes were being challenged.
Second, are the challenges about the “late” mail in ballots received and counted for several days after election-day. This argument centers on Pennsylvania and was the subject of litigation before the election. Columnist Byron York considered this in an article “The election lawsuit that Trump should win”, Nov. 15th, 2020 Star Herald. In short, the argument here is that the Supreme Court of Pennsylvania erred in allowing this action despite the clear language of a state statute that such mail in ballots were to be received by 8 p.m. Election Day. The Supreme Court of the United States in its earlier review of the matter withheld final judgment, noting that it might not be necessary to decide the case if the vote was not close. With that ruling, Justice Samuel Alito instructed the state election officials to segregate the votes received by mail after the election from the earlier votes to allow a meaningful review if necessary. The state claims those votes are not enough to alter the election in Pennsylvania.
A third round of litigation suggests that vote counters in Arizona favored Democratic votes over Republican ones in deciding whether to allow the ballots or not. Proponents of this charge point out that down ballot Republicans won while Democrats did not. Allegations make the ballot review seem rather like a rock, paper, scissors affair. However while wild charges and statistics might satisfy claims of systemic racism, they probably will not stand up in court. Furthermore, it is not clear in Arizona that those who have previously voted Republican in past elections did so again this year, given how many Arizona Republican voters perceived Trump’s relations with former Senator John McCain. McCain after all replaced local legend Barry Goldwater in the Senate. Other suits of this type in other states face similar difficulties. Allegations are one thing, but they must be proven.
The most curious and interesting litigation concerns allegations that the software of voting machines was “altered” to discount, or discard votes for Trump and enlarge those for Biden. These charges are being urged by well- regarded attorney, Sidney Powell, a former Federal Prosecutor for the Western District of Texas. For evidence, Powell points to concerns about the machines being manufactured to manage elections in South America by prearranged algorithms to insure the right candidate received the right number of votes. In addition, a number of Progressives have previously voiced concern about whether voting machines guarded election safety. (See e.g. “Buy this Vote!” Jeremy Derfner, Slate August 23, 2000) and the fact that Texas refused to use the machines manufactured by Dominion because they were not considered to be safe from unauthorized manipulation. On the other hand the recount in Georgia did not suggest a broad change in vote and other States, like Florida have used the same machines. Moreover, the Trump legal team has run from these charges in the last couple of days faster than people run from the smell of spoiled tuna.
Of course, as Andrew McCarthy of National Review Online has pointed out, unless the number of votes contested will alter the election it is unlikely courts will consider the claims because there is no civil remedy available. “Checkmate in Pennsylvania for the Trump Campaign,” Andrew McCarthy, www.nationalreview.com, November 18th, 2020.
Judicial disenfranchisement of voters
The week after the election, the high court heard another challenge to the Obamacare lawsuit. This case was brought by my home state and the suit was joined, or opposed by several other states. Missing the irony, many conservatives now complaining about voter fraud, disenfranchisement of voters and political participation argued optimistically for the high court to overturn the law as being unconstitutional, just as they had in the original challenge to Obama Care. In that original case Chief Justice Roberts refused to find the law unconstitutional, siding with those judges identified as the liberal wing of the court. Conservatives, who for several generations have argued about the danger of an activist judiciary, howled with anger that Roberts had shirked his duty as a judge. I think those conservatives are wrong. If they want to repeal the votes of the majority of Congress and the Senate that passed Obama Care, repeal it by a majority vote of the legislature as promised. Republicans should not shirk their legislative responsibility and ask the Supreme Court to impose their policy view.
I do not suggest such judicial humility because I support Obama Care. Rather, I believe Obama Care and the future Biden effort to install a big government controlled health care plan-the so called “medicare for all plan”-to be horrible public policy. I mean, if Obama Care was such a great progressive step why is it that American’s didn’t know to wash their hands, cough into their sleve and stay home when sick in the face of Covid 19? If I were I a member of Congress, I would vote against such plans and do everything I could to stop them. Such grandiose plans do not improve health care, or lessen economic costs. Rather, they drive all concern away from individual patient care, focusing instead on creating a regulating governmental bureaucratic morass that will insure mediocrity and the ration of care in the name of efficiency, for all but members of the party, or the wealthy. And they undermine the progress of innovation inherent to markets.
This truth is illustrated in an episode of the Netflix show, “Call the Midwife” where Nurse Jenny Lee leaves a Catholic maternity facility to join the staff of a maternity ward in the new nationalized health service hospital in late 1950s London. The hospital regime is set to employ efficiency, so all can be served. However, Nurse Lee quickly realizes that quality patient care itself is lost and she quickly returns to help the nuns intuitively recognizing that helping the poor in their homes is better than the “progress” of the care in the nationalized system. Being our brothers keepers is always like that. However, not every bad idea-even one as bad as Obama Care- is unconstitutional. Furthermore, to overturn that democratically passed law disenfranchises the votes of many democratic members of Congress, like Christopher Carney, who voted for the law.
Justice Kagan first sounded her alarm about a conservative judicial majority on the court disenfranchising voters and imposing their policy views in a labor matter in her dissent in Janus v. American Federation of State County and Municipal Employees Council 31 complaining:
“The majority overthrows a decision entrenched in this Nation’s law—and in its economic life—for over 40 years. As a result, it prevents the American people, acting through their state and local officials, from making important choices about workplace governance. And it does so by weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.”
In the same dissent she continued her warning thus:
“Because, that is, it (the 5 judge majority) wanted to pick the winning side in what should be—and until now, has been—an energetic policy debate. Some state and local governments (and the constituents they serve) think that stable unions promote healthy labor relations and thereby improve the provision of services to the public. Other state and local governments (and their constituents) think, to the contrary, that strong unions impose excessive costs and impair those services. Americans have debated the pros and cons for many decades—in large part, by deciding whether to use fair-share arrangements. Yesterday, 22 States were on one side, 28 on the other (ignoring a couple of in-betweeners). Today, that healthy—that democratic—debate ends. The majority has adjudged who should prevail. Indeed, the majority is bursting with pride over what it has accomplished: Now those 22 States, it crows, “can follow the model of the federal government and 28 other States.’” (Bold emphasis added)
Of course, Kagan did not feel the same way when she voted with a 5 judge majority to disenfranchise voters like Jose Nunez of California and end the democratic debate on the issue of same sex marriage in 2015. Then, rather than allowing the 30 plus states that had democratically passed defense of marriage acts and the few who had passed genderless marriage statutes to continue democratic debate, she voted with the majority of the court disenfranchising democratic action of millions of citizens by inventing a constitutional right to same sex marriage. A right that Kagan had denied existed in her confirmation hearings. I guess it is negative judicial activism only when you disagree with the results.
Judges should heed the warning about judicial disenfranchisement of voters from Justice Antonin Scalia in one of his dissenting opinions:
“This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.”
Maybe that is what Roberts believes too.
Reaction to the charges of voter fraud in the Presidential election
As alarming as claims of fraud and disenfranchisement are, the threats that people involved in the effort to uncover fraud, to recount, or for the Trump administration in general should be black listed and not considered for future employment. Indeed, these efforts have grown so pervasive that news services are reporting lawyers have withdrawn from involvement with Trump’s legal challenges for fear of retaliation. Anyone suggesting such efforts are unlikely need only to be reminded of the post proposition 8 election blacklisting efforts.
For example, according to a Heritage Foundation Report, “The Price of Prop 8”:
“Some of the animosity directed against people and groups that supported Prop 8 was openly threatening or even violent. In Modesto, for example, a Prop 8 supporter was allegedly punched in the face by someone who had stolen several Yes on 8 signs. According to news reports, Jose Nunez, who became a U.S. citizen just months before Prop 8 passed, was waiting to distribute signs outside his Catholic church when a man grabbed several Yes on 8 signs and fled. When Nunez followed the thief and tried to recover the signs, the thief reportedly yelled "What do you have against gays?" and punched Nunez in the face. According to Prop 8 supporters, Nunez suffered a bloody eye and wounds to his face and was taken by ambulance to a local hospital "where he received 16 stitches under his eye.” (Footnotes removed)
“The Price of Prop 8” at heritage.org/marriage-and-family/report/the-price-prop-8.
The report also details many employers being threatened with boycotts if employees who supported the proposition were not let go. Other financial supporters of the proposition were confronted by opponents and urged to apologize. Those kinds of retaliation and threats happened recently in our country. Allegedly, they are being used again. That is un American.
Looking forward
Texas was able to count the votes of a record turnout in one day. Perhaps other states should take note. Expanding early voting from two to three weeks was smart. Sending ballots to all registered voters by mail is not. See: 2005 Report of the Commission on Federal Election Reform, known as the Carter Baker Commission Report. States must continually review their election integrity and eliminate security vulnerabilities where they exist. They should update their voter lists. The Heritage Foundation offers a list to consider in its “2020 Mandate: Clear Vision for the Next Administration”. The Texas Public Policy Foundation offers some additional thinking in its paper The Secure and Free Election Agenda. Americans must trust that elections are free, fair and that every legal vote is counted. Perhaps that can be the lesson of this election.
Mr. Thompson practiced law in El Paso as a prosecutor, in private practice, as legal advisor to the El Paso Police Department and as a Family Law Judge. He also served as an elected democratic party precinct chairman.