Assuring Future Election Integrity: The Path to Fairness

Public mistrust of elections has risen to a level unprecedented in the history of this country. Gallup found less than 20 percent of Americans were “very confident” before the voting in 2020 that votes would be accurately cast and counted. The Left blames Donald Trump for making the allegations and the Right is convinced there was foul play. 

After the election, the public belief that the results were marred by fraud or irregularities remains quite high according to recent Rasmussen polling. The issue breaks pretty much along party lines, but even a significant portion of Democrats recognize irregularities occurred. This sentiment is even more serious when one considers that traditional and social media have done everything possible to suppress information about election issues. 

Where the public largely comes together is on the question of how future elections should be conducted. There is no major bipartisan split on key elements of election integrity.

Because the “consent of the governed” must be predicated on the accepted legitimacy of elections, this controversy needs to be resolved decisively and with some urgency. Political scientist Robert Dahl argued that legitimacy has a reservoir: So long as the water is at a given level, political stability is maintained. If it falls below the required level, political legitimacy is endangered. 

“It doesn’t lead to a good place if people on both sides continue to feel this way for very long,” says presidential historian Michael Beschloss. American democracy has flourished because citizens “had the faith that if you wait for a while the system would, from their point of view, correct itself. People are losing their faith.” As the founders noted in the Declaration of Independence, “Governments are instituted among Men, deriving their just powers from the consent of the governed.” Without acceptance of the fairness of elections, this consent cannot be supposed to exist.

Why 2020 Election Challenges Failed

Before looking for strategies to shore up election integrity and public confidence, we must examine why the efforts to challenge the 2020 election failed, despite an unprecedented level of public skepticism going into the election. Conservatives cannot expect to fix the system without a critical examination of what went wrong. 

There is, of course, the overriding fact that once votes are cast and results announced, the public and our institutions view acceptance of an election as inevitable, almost like the weather. Most of the public also has a saturation point for political news. A majority of people tire of dealing with the issues and taking the time to pay attention to them. 

Last year’s election challenges also faced the problem that some of the allegedly faulty systems had been adopted by local Republican officials. This backdrop created hurdles for any effective challenges but it was not insurmountable.

But the public’s general disposition to accept things as they are does not explain the resistance to the 2020 challenges or the media’s massive censorship. The Trump team made significant mistakes that must be understood and not repeated, both in future election disputes and in efforts to fix the system.

The challenges were disorganized and unfocused. They could probably be best described as looking like a series of “hail Mary” passes in the last minutes of the fourth quarter. The relief sought was to overturn the election and substitute a decision from the state legislature, a move that neither the courts nor the state legislators were prepared to make. This made it easy for judges to find an easy way to avoid the controversies and for most state legislators to sit on their hands. 

This approach began with election night (and week) observations of ballot counting irregularities. Statistical anomalies were often presented in isolation without convincing explanations of how they could be explained by tampering. The claims of tampering were mostly hyperbole without cogent or carefully crafted technical rationale. The clearest example is not discovering the Fulton County, Georgia election center cameras until days later. Had those cameras been monitored, the “break” in balloting counting and the under-the-table boxes in Atlanta could have been challenged immediately. 

Other times, online sources without impressive credentials were seized upon, allowing for easy attacks on their veracity. The problems with getting on-site judicial intervention for observers to have real access also did not run smoothly or effectively. We were simply not prepared for systematic efforts to block observation and frustrate the normal bipartisan oversight. Democrats were organized in key places to frustrate election monitoring and to create opportunities for mischief.

The legal teams were inadequate for the tasks. The large law firms were compromised by conflicts with many of their commercial clients and non-conservative partners. They either sat out or dropped out. The only lawyer that the president seemed to trust was Rudy Giuliani, who was a criminal prosecutor and not a civil litigator and who obviously had not been in court for many years. This occurred despite the existence of several very successful legal groups that had been operating on election integrity and the good prospects for recruiting legal talent willing to fight the battle. 

In almost all cases, the factual basis for the grievance was not apparent to the public until the special hearings before legislative groups that only occurred after the court cases had mostly been unsuccessful. All of the public hearings were scattershot and lacked focus. Once it was clear that the courts were going to provide factual hearings, the public hearing route should have been immediately organized and used to educate not only the public but also judges and legislators.

There was no clear endgame for most of the challenges. If someone proved that 50,000 dead people voted out of 2.5 million votes cast in a state, what was the court’s remedy? The challenger could not prove who those 50,000 dead people “voted” for or which ballots should be thrown out. Courts and legislatures were unwilling to negate the election on those facts alone. They were uniformly and understandably not going to throw out 2.5 million votes because of 50,000 bad ballots of unknown impact. 

The certification deadlines for the electoral vote under the Constitution precluded election doovers, even if this obstacle had been cleared. These types of claims must be litigated on the voter roll challenges before the election (an effort that many groups, like Judicial Watch, have been pursuing with stellar results). The challenges to electronic vote tallies came late and were never conveyed in a way that courts and legislators understood. But the same issue with the remedy still applied: the alleged facts did not create a political and public perception large enough to force people to act in such an unprecedented manner.

The campaign never challenged official pronouncements that 2020 was “the fairest election ever.” Fact is, the federal agencies involved with certifying the outcome had done virtually nothing to address the questions raised in the campaign’s challenges. In response to claims that electronic voting could be rigged, the Federal Election Commission argued that was impossible since a paper ballot audit would detect any such meddling. Yet they do not require the systems certified to provide for such a paper trail. And, as we’ve seen, the parties defending the election results have fought real audits at every turn. 

The weakness in our federal election certification and guideline process must be addressed, as discussed below. The bureaucrats and their allies got away with gross generalizations that most casual observers and the media accepted at face value. 

The campaign challenges ignored the only case where Dominion Voting Systems had been challenged in a full federal court proceeding that involved full discovery and a trial. Many useful findings in that case, Curling v. Raffensperger, could have legitimized the challenges and elevated the narrative. It should have been the starting point in all of the challenges. What’s more, Curling was supported not just by Republicans, but also Georgia Democrats and third-party nongovernmental organizations. The quality of the expert analysis and factual inquiries vastly exceeded anything put out later by the campaign’s challenges. 

“The Court’s Order has delved deep into the true risks posed by the new BMD voting system as well as its manner of implementation,” wrote Judge Amy Totenberg. She continued: 

 These risks are neither hypothetical nor remote under the current circumstances. The insularity of the Defendants’ and Dominion’s stance here in evaluation and management of the security and vulnerability of the BMD system does not benefit the public or citizens’ confident exercise of the franchise. The stealth vote alteration or operational interference risks posed by malware that can be effectively invisible to detection, whether intentionally seeded or not, are high once implanted, if equipment and software systems are not properly protected, implemented, and audited.

The judge added: “The Plaintiffs’ national cybersecurity experts convincingly present evidence that this is not a question of ‘might this actually ever happen?’—but ‘when it will happen,’ especially if further protective measures are not taken.” She only stopped short of barring use of the system because it was too close to the election to acquire a new one. 

Even the entertainer Eddie Vedder noted: “I’d like people to be educated on the voting machines, making sure that our democracy isn’t being hijacked by computer technology. There’s no reason there can’t be a paper trail on those machines.” 

For some reason, in the key state of Georgia, with a case already largely decided on the same questions, the campaign did not file to reopen the case. Even if a procedural issue could have blocked reopening of the case (if one could have been imagined) the effort would have placed the case in the spotlight and changed the narrative dramatically. Unlike some of the experts challenged in the campaign’s efforts, those in the Curling case were stellar in the field. But some sloppy pleadings, marginal experts, and inexperienced lawyers were all used to great effect by the other side in the election challenges. All that vulnerability was unnecessary and avoidable.

Now we have quite a few lessons from the unsuccessful post-election challenges as well as a strong basis in public opinion to improve our election integrity. There are ways to increase voter confidence in the system and to keep our base motivated to vote in the next elections. The steps described here can build on the many legislative actions being taken to strengthen voter ID laws, reduce potential fraud by hundreds of thousands of mailed-out ballots based on bogus voter rolls, ban ballot harvesting, and improve election supervision procedures. 

There needs to be a legal challenge to the adequacy of the federal election systems certification rules and guidelines. No system should be certified without leaving a clear paper ballot audit trail. Astonishingly, existing rules and guidelines do not require a paper trail. 

No “adjudication” of votes that can potentially change the voter’s selection should be done without observers and detailed records of the “adjudication” to allow audits. 

Nothing necessary for an effective audit should be “confidential” and “a trade secret” or the system should not be certified to begin with. 

No system that allows weighted voting (where votes can be programmed to equal more or less than one) should be certified. 

Rigid procedures should be specified for USB entry of votes and other manual functions within the electronic system. 

Entry of ballot bunches that do not have a chain of custody should be prohibited. 

These issues need to be raised in a lawsuit and aggressively pursued as soon as possible. Federal certification is not mandatory, but several states require it and virtually all other states rely on it to some degree or another. A set of appropriate federal standards for certification would have inevitable ripple effects on other states that would fundamentally alter the rules for electronic election systems. 

Moreover, election voting and counting centers need to be more aggressively monitored. Republicans should push to have multiple cameras installed in these locations; much the way the Arizona recount is being handled. Those cameras should be manned by observers from both sides and allow zoomed in views if there is an observed potential issue. They should also retain the recordings. 

Rapid response teams need to be set up before the election. One call to the team on any observed serious problem should bring in a qualified local attorney with a predetermined method to obtain judicial intervention. State and local election officials should be pushed to maintain and store election records in a way that both secures them and allows for easier audits and recounts. 

In future elections, recounts and audits should be orderly, prompt, and by default. If the Maricopa County audit or other post-election audits reveal “fake” ballots that have been pre-printed and marked, then election centers should screen for fake ballots in future elections (especially in the larger election tabulating centers).

The issues can be resolved and elections brought back to a standard that the public deserves and respects. Above all, we can’t wait or delay until the next election to fix what is broken.

 

About Randy Michael Mott

Randy Michael Mott holds a B.A. in American history and political science from the University of Iowa with honors, and a Juris Doctor from the Georgetown University Law Center. He practiced law in Washington, D.C. for over 25 years and engaged in complex civil litigation and administration litigation against the federal government. He currently resides in Warsaw, Poland, and is a consultant on EU and U.S. environmental and governmental issues. He is also the chairman of Republicans in Poland.

Photo: Chris McGrath/Getty Images

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