Donald Trump refuses to concede defeat and continues to contest the election results. Apparently the same ballots that kept his Republican enablers in control of the Senate — for now — and gained them (so far) six seats in the House — these same ballots were somehow fraudulent, but only on the top line, for the Presidential race. As Scooby Doo would say: Huh? If you are alleging ballot irregularities, fine. But a few things you should keep in mind:
- The burden of proof (and the bill for any recount) is on you.
- “Upon information and belief” in your complaint won’t cut it: you need actual evidence.
- Invalidating any individual vote means invalidating the entire ballot, including down-ballot races (yours).
- Hundreds of thousands of spoiled ballots, across multiple states, just aren’t there. Ever.
The idea of “stealing” or “rigging” an election in this way is beyond risible. It defies both common sense and the entirety of human experience. Trump and his allies are pinning their hopes on proving a conspiracy — a concerted, coordinated effort — among many thousands of people. As this On the Media segment demonstrates, it’s an impossibility.
It all would be the basis for a good laugh if it weren’t so serious. Ballot fraud is extremely rare, impossible to carry off successfully (see above), and almost always detected. Nearly every such failed attempt has been the work of Republicans, most notoriously in North Carolina’s 9th Congressional District. (One wonders if they allege fraud because that’s what they’d do?) The accusations in this cycle are particularly galling when senior Republicans at every level speak piously of Trump’s precious rights to contest an election and demand a recount without a peep about the malign intent to undermine faith in the very system that sent them to office. If the integrity of our elections is in question, doesn’t that also undermine the legitimacy of every elected GOP official? In the latest twist, a postal worker in Pennsylvania has recanted his claim that ballots were backdated, a claim that has been relied upon by Lindsay Graham and the Trump campaign as evidence of fraud. Republican donors have raised over $130,000 on behalf of the USPS employee — $130,000 being, apparently, the going rate (see: Daniels, Stormy). According to the Erie postmaster this is not this postman’s first job-related offense.
Small-d democrats ignore this doublespeak at their peril. Sure, any candidate has a legal right to challenge election results; but that right — like all rights — also carries certain obligations: challenges are to be made in good faith and must be supported by actual facts. The claims here have been dismissed by every court that has heard them, because no actual facts are even alleged. Per The Washington Post:
By now, it’s well-established that most of the arguments put forward by President Trump’s reelection campaign in its challenge of the results of the 2020 election are baseless and highly speculative. Even Trump allies, as The Washington Post reported late Tuesday, acknowledge the apparent futility of the effort. Others have reasoned that there’s no harm in going through the motions, with one anonymous GOP official asking, “What’s the downside for humoring him” for a little while?
But as scenes in courtrooms nationwide in recent days have shown, there is indeed a downside for those tasked with pursuing these claims. Repeatedly now, they have been rebuked by judges for how thin their arguments have been.
The most famous scene came in Pennsylvania, where a Trump lawyer strained to avoid acknowledging that their people were, in fact, allowed to observe the vote-counting process in Philadelphia:
At the city’s federal courthouse on Thursday evening, attorneys for Trump asked a judge to issue an emergency order to stop the count, alleging that all Republican observers had been barred.
Under sharp questioning from Judge Paul S. Diamond, however, they conceded that Trump in fact had “a nonzero number of people in the room,” leaving Diamond audibly exasperated.
“I’m sorry, then what’s your problem?” asked Diamond, who was appointed to the federal bench by President George W. Bush.
The downside of humoring him should be self-evident: further public humiliation of the United States, if the last four years were not enough. It even more nakedly exposes Trump for what he is, a spoiled and unpredictable man-baby with his hands on the nuclear codes. Moreover it exposes the gaping flaws in our vaunted system of checks and balances, which are more fragile than anyone supposed. It turns out they are utterly dependent on all actors behaving in good faith.
Attorneys have an obligation to serve the law and the court, not just their clients. Federal Rule of Civil Procedure 11(b) states:
By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.
Trump and GOP attorneys find safe harbor in subsection (4) — “information and belief” — and ignore the more pertinent subsections (1) and (2). These cases are warrantless and frivolous, in violation of (2); and they are being brought — or so it appears — merely to delay the timely certification of votes and undermine public confidence in the electoral process. By any fair reading such motivation violates (1).
Under Rule 11(c) a court may sanction the attorney. law firm, or party that violates Rule 11(b). Perhaps it’s time more attorneys defending these frivolous and capricious suits filed more Rule 11(c) motions. It wouldn’t be pretty; but it might put a stop to the wasteful abuse of process. Republicans are forever running on platforms to reel in what they see as abuses of the courts; but when elections don’t go their way they are the snowflakes at the courthouse door. Another term for cognitive dissonance might be rank hypocrisy.
Common Cents 