Legal Editor Column: What to make of claims of election fraud

Editor Column

Gary Ernest Grass, esq. , Legal Editor

I will assume, Gentle Reader, that it is not too late to write about claims of fraud in the 2020 presidential election. Particular allegations and legal cases come and go, but there are always new claims, new cases. I’ve been an election official and an international election observer, and I’ve even practiced a little election law, so I’ve been curious to examine some of the legal actions in particular claiming fraud.

  I get a flood of emails every day telling me about new evidence of new fraud. The very fact of so many stories with fraud in the headline is enough to give the impression that fraud is all about, and that seems to be the game: the stories themselves are unlikely to persuade anyone who’s not already a believer. There’s nonsense about “quantum blockchain watermarks’’ and secret foreign servers with the “real” election count that make no sense at all, mixed in with real reports about small, irrelevant mistakes by poll workers, and serious problems in Puerto Rico, which last I checked had zero electoral votes.

Some of the stories use fake experts. Conspiracy maven Dr. Shiva Ayyadurai posted an hourlong video on YouTube proving fraud with scattergrams: maths educator Matt Parker destroyed his claims in ten seconds, as he did earlier claims regarding “Benford’s Law.”

Just as fake experts meet their kryptonite in review by real experts, fake lawsuits designed to promote an idea of fraud, rather than actually win, meet their fate in courts. The record changes daily, but at my last count, Trump’s team won one case (to keep a count he lost the same) and has lost 45 to 50 others. The courts, often by judges named by Trump himself, excoriated his attorneys for filing cases with no evidence and often no sound law behind them. Some of the suits lasted only hours. Many of the attorneys quit. Many have been reported to their respective bars for pursuing fake lawsuits. This is the strongest indicator that the 2020 elections were overall fair: if there were evidence of fraud, shouldn’t Trump’s lawyers have shown it to the courts when asked for it?

One of the cases I looked at in detail was the original action in the Wisconsin Supreme Court filed by the Wisconsin Voters Alliance (WVA). The WVA case instantly drew a swarm of amicus (friend of the court) briefs on the other side. As one of them pointed out, the WVA and its lawyers had raised similar claims in other courts and have been shot down every time. But let’s address this case briefly on its merits.

The issue identified in WVA’s petition is so broad as to be meaningless: whether officials failed to conduct the election “in accordance with Wisconsin law,” though, forgetting this, it also cites federal law in some of its numerous theories. Centrally, a private group gave millions in grants to Wisconsin cities to help people vote safely during the pandemic. Before the Wisconsin Elections Commission, the WVA argued that this was bribery. Now they drop that argument and say private grants to cities are illegal. They claim the money targeted Democrat-leaning areas. And they claim that the WEC gave incorrect guidance to local election boards, authorizing them to violate a half-dozen electoral laws. They identify no particular votes that were miscast or miscounted, but based on analysis of public data, estimate tens of thousands of bad votes.

Many of these claims cannot survive basic scrutiny. The WVA cites laws that sometimes provide no support for their position or even seem to contradict it.

The briefs on the other side go after the WVA’s petition like a school of piranhas. Even trying to be as neutral as possible, one can taste blood in the water. The City of Milwaukee’s brief says it’s crazy to argue cities cannot take private grants, as it has been doing for a century. The law backs it up. The private group that gave the grants points out that scores of smaller towns in redder parts of the states also got its money. The NAACP explains that the WVA’s “expert” is really a partisan crackpot whose methods have been debunked by real academics, and whose opinions are not reliable enough to be considered evidence in Wisconsin courts. Some of the briefs point out that the WVA waited until the last minute to make some of these arguments, and already lost on some of the others, giving up their procedural rights to make the claims now — and now are filing in the wrong court.

Finally, the order the WVA seeks: to nullify the entire election and have the Republican legislature appoint Wisconsin’s presidential electors, would be unwarranted on the facts, contrary to present law, and probably unconstitutional.

The most recent lawsuit ruling in the Wisconsin Supreme Court, on Dec. 14, was against the Trump campaign, 4-3, with conservative justice Brian Hagedorn joining three liberal justices in the majority.

Not only did Hagedorn join the majority, he wrote the opinion and used his own concurrence to rip apart Trump’s arguments. Most interesting thing was the minority writers, who sort of hinted they would be pro-Trump on the merits, but did not pin themselves down on anything but to disagree with the majority on its reasons for throwing out the case. They wanted to signal to voters that they were party line conservatives and not be labeled RINOs, or whatever the equivalent is for nonpartisan races, but they also could never have gone along with Trump on throwing out the election, because it would show a complete lack of judicial integrity. So they complained about the case being thrown out for a couple of specific reasons (not convincingly in my view) and sort of fudged on the fact that they still would have had to agree with at least one other reason for denying relief at the end of the day.

A lot of the lawsuits share a common weakness. If you think an election commission’s interpretation of a rule is wrong, you can file a lawsuit as soon as the decision is made, to keep it from being applied in an election. It is generally not kosher to wait and see if you lose the election, and then try to throw out only votes that went against you afterwards because of a problem you foresaw six months earlier. All of the present lawsuits I’ve seen try to revive arguments that lost before the election by reframing them slightly. 

Is there anything good in any of the suits? Possibly, but if so, it probably would have been identified by independent legal experts by now.  

This should not be taken to imply anything about the people behind the lawsuits. Really smart people can believe sincerely in things that are really really dumb. But it’s hard to imagine many lawyers embracing the theories of these suits, or real experts embracing their factual analysis. Whatever the authors may intend, the lawsuits are themselves a kind of soft fraud on the public. For those who read them, they show how thin any claims of voter fraud really are, but for those who only read sympathetic reports about it, they can look like proof that our election system failed. 

It didn’t.