The 2020 election is a nightmare from which I — along with millions of others — am trying to awake.
Like many dark dreams, it is uncertain exactly what is happening. Phantasmic ballots come and go. Seemingly insurmountable Republican victories disappear into the mouth of a vote-munching machine and come out the other side as excremental — oops, I mean incremental — Democratic leads just beyond the reach of a recount. And as in any nightmare worth its salt, just when you think it’s about to end, a new trap door opens and you fall into yet one more level of confusion and chaos in a maze with no exit in sight.
But this is America. It’s not supposed to be a Kafka novel.
So how did we get to a place where, days after the election was held, despite many proclamations by news organizations to the contrary, we still don’t know who won, we don’t know who voted, and we don’t know for sure whether the rules were followed in either voting or counting?
Various irregularities have been reported in five big cities, all in strategic states, and particularly in Detroit, Mich.; Philadelphia, Pa.; Atlanta, Ga.; Milwaukee, Wis.; and Las Vegas, Nev. The allegations range from mysterious ballot drops that seem to show tens of thousands of votes for Joe Biden and zero votes for President Trump, inexplicable record turnouts in late-counting counties (all Democrat-dominated) that far surpass turnouts in counties in other states where the votes were counted on a timely basis; and of course the illegal banning of election observers in those very counties where the most outrageous anomalies are reported.
Democrats tell us that there is nothing to see here, and the compliant media dutifully moves along, unwilling to investigate on its own or even express any concern about potential wrongdoing. Even Fox News has turned into a lapdog for the Democrat Party, calling Arizona for Joe Biden long before anyone could know for sure which way the state would turn.
On Thursday night, as Fulton County was just about to swing Georgia into the Biden column, CNN’s John King arrogantly lectured Donald Trump:
“Guess what, Mr. President? We’re gonna count the votes, and if they favor you, we’re gonna show that. And if they don’t, we’re gonna show that. That’s how democracy works. We’re just counting the votes.”
Um, no, that’s not the way it works. News channels don’t count a damn thing. They just report numbers shipped out by election offices in various counties across the country, and if CNN or any other news outfit were actually doing their jobs, they would be alert for patterns suggesting fraud in the numbers they report. If “just counting the votes” were all that it took to have a democracy, then Vladimir Putin’s Russia would be a glorious example of democracy, as would the Islamic Republic of Iran.
But CNN and the New York Times see it differently. Here’s what the Times tweeted on Election Day:
“The role of declaring the winner of a presidential election in the U.S. falls to the news media. The broadcast networks and cable news outlets have vowed to be prudent.”
Well, yeah, I guess that’s better than vowing to be venal, egotistical, elitist, and dangerously biased, but that’s what the news outlets in the U.S. really are. I can’t think of a less qualified set of judges with whom to invest the power of judging winners and losers in the democratic process than Jake Tapper and Rachel Maddow.
Yet they — and their Big (Tech) Brothers at Twitter and Facebook — have set themselves up as the moral authorities on election law. They insist that there is nothing improper about the election because, well, because it ended with the result they wanted. Anyone who disagrees with them, including the president of the United States, they label as a conspiracy theorist.
But let’s think about it. Despite the total lack of curiosity exhibited by the mainstream media, there are many questions about both the casting and counting of votes in multiple states, and it all starts with the amorphous monster Trump has warned us about for months — mail-in balloting. Sadly, there is no way to verify the results of the election as accurate because no matter how many times you recount the votes, you will not be able to ascertain which ones are legal and which are illegal.
When you vote in person, you first make an active choice to vote, confirm your identity as a registered voter to a poll worker, then mark your ballot privately but in the presence of other people, and finally hand it off to a poll worker who scans it directly into a vote-counting machine while you watch. In other words, you establish your legal right to vote and have a secure chain of custody of your ballot until it is scanned, which you yourself participate in.
None of those steps is present in mail balloting. You are a passive recipient of a ballot, your identity is assumed rather than confirmed, you may be marking your ballot under pressure of either family members or strangers, and you send the ballot to an anonymous election worker through any number of insecure methods of transmission. You have no assurance that your vote has been counted, and what’s worse, you may not even be a participant in your own vote being cast in your name.
The most important thing to remember about mail ballots is that once they are separated from their secrecy envelope, they are completely unidentifiable. They may have come from legal voters, or they may not have. They may have come in the mail, or they may have come in the soda delivery truck. They may have come one at a time, or they may have come 100,000 at a time.
And no one will ever know.
But the boobs on cable news say there is no reason to worry about mail ballots. They say we should just trust the folks who count the ballots because, well, why would anyone cheat to elect the most important public official in the world? Just move along, there’s nothing to see here.
And that is what makes it so frustrating for not just the president but for his supporters who think there may have been deception in the vote-counting process. Because if there is fraud, how the hell do you prove it?
There are only two avenues for a candidate who thinks he has been cheated out of a rightful victory, and both of them have the potential to make him look like (as Jim Acosta accused Trump of being) a “sore loser.” One is the judicial process, which is where we are now, and the other is a constitutional process, about which I will say more in a minute.
The judicial process allows a candidate to go to court to present evidence of fraud or violations of law in the casting or counting of ballots, but then what? Trump’s lawyers have already proven that their election observers were illegally blocked from watching vote counting in Philadelphia. They are also making the case that illegal votes have been cast in Nevada, and raising serious concerns about why vote counting halted mysteriously in big Democrat-run cities during the small hours of the morning the day after the election. But if Republicans prove wrongdoing, what exactly is the solution?
Remember, you can’t distinguish a legal vote from an illegal vote once they have been counted, so what can a judge do? What could the Supreme Court do?
Well, in one small part, the Supreme Court is actually well-positioned to act. That’s because the court has already heard one case based on the constitutional provision that federal elections are the sole province of state legislatures. The court split 4-4 on a ruling that would have prohibited Pennsylvania from counting ballots received for three days after Election Day because that rule was implemented by a Pennsylvania court, not the Pennsylvania legislature. The federal judges ruled it was too late to change the lower court mandate, but ordered Pennsylvania to keep the late votes segregated in case the matter ripened into a controversy.
Well, controversy it is. So it is expected that the full court — now including Amy Coney Barrett — will revisit the matter of those late ballots and very likely throw them out. There is little doubt that they are unconstitutional.
But that could only reverse one small measure of mischief, and would not necessarily repair all of the errors of the election. For the rest of those — ones involving procedure or illegal ballots that cannot be distinguished from legal ballots — the courts have limited options. In fact, there really is only one certain judicial remedy, and it is so extreme that almost no one would envision it being used — namely, throwing out the results of the election and mandating a new election to be held in a particular state, be that Pennsylvania or elsewhere.
This would obviously have to be done on an expedited basis since the Electoral College vote is scheduled on Dec. 14, but there is no reason why an election could not be held in a timely manner on a date determined by the court and administered by representatives of the court. Or perhaps I should say there is no reason why that could not be accomplished except for the lack of willingness to intervene that we can expect from either district judges or Supreme Court justices. It would be a heavy lift.
So that brings us to the constitutional solution. This one is more elegant, but it still requires a heady dose of chutzpah. As noted, under Article II of the U.S. Constitution, the state legislatures are solely responsible for determining how each state’s electors are appointed. If a legislature were convinced that the presidential election in that state was tainted, it could convene and pass an emergency resolution declaring the election null and void and then choose to appoint a slate of electors by fiat. Since the claim of misconduct is being made by Republicans against Democrats, you can assume that it would take Republican-controlled legislatures to make such a bold move.
Fortuitously, Republicans do control both houses of the legislature in Michigan, Pennsylvania, Wisconsin, Georgia and Arizona. Nevada alone among the contested states has a Democratic legislature. If legislators are convinced that the presidency has been wrested out of Republican hands through chicanery or corruption, they could set the matter right by exercising their constitutional prerogative. This is a heavy lift also, but if states intend to ever exercise their authority under our federal system of government, there would be no more appropriate time to do so than when one party seeks to arrogate unto itself power that it has not earned through a free and fair election.
The republic is at stake, and that’s not just a nightmare. It’s reality.