I've made a big deal of the distinction between voter fraud and election fraud. Basically, the idea is that voter fraud involves actual fraudulent voters--whether dead or alive, for example--whereas election fraud involves the actual tabulation procedures. (More data savvy readers may want to correct me, but I think this rough and ready distinction works for our purposes.)
This distinction is important because it plays into the argument that smart lawyers like Jonathan Turley and (to some extent) Shipwreckedcrew have made regarding what Team Trump needs to do to get their case in front of courts. The point I've made is that there simply isn't enough time to assemble a case based on the FBI or some other entity investigating fraudulent voting. Instead, as Turley argues (convincingly, to me), you need to show that the election system itself--as implemented in various states--is flawed and unreliable in various ways. An unreliable election system defeats the whole concept and purpose of having elections. That argument will get you in front of a court very quickly and stop the clock ticking.
I don't know who Jonathan Cohen is, but he adds to that argument today in a highly recommended blog at American Thinker: The rejected vote count is what matters.
He begins with some common sense observations about voter fraud, as we have traditionally known it. He points out something we've all seen and an outstanding example of which I saw practically first thing this morning:
There is a narrative put out by the Democratic party and their media allies that to contest the election, the Trump campaign must produce enough evidence of fraudulent voters to make up the difference in the vote count. That has very little to do with the bulk of the challenges.
In essence, they're trying to hide the ball, which is a typical liberal tactic. Confuse the issues.
Cohen's argument is that looking for voter fraud per se is a bit like a teacher monitoring an exam:
States have a variety of laws to deal with absentee ballots that are put in place to ensure the integrity of the process. These laws are there because it is a lot easier to cheat with mail in voting. Everyone knows this, though for the last six months there has been a serious effort to deny it.
As a point of comparison, consider how teachers prevent cheating on exams. They sit in front of the room as students take their exam. They watch them to make sure the students are looking at their own papers. This is enough to prevent most cheating.
Now, imagine a teacher deciding after several years without incident, deciding that since she has seen no cheating, there is no real reason to watch the students. Instead, after handing out the exams, she leaves the room returns to her office and returns an hour later to collect the exams.
That's how you prevent--or don't prevent--voter fraud.
There is another type of voter fraud that may play a large role in Pennsylvania, and which has already reached the SCOTUS. That would be the question of excluding entire classes of ballots--those submitted after the statutory deadline. That would be analogous to rejecting the exams of students who hand them in late, and can be readily handled by checking date/time, requiring such stamps on ballots, etc.
Cohen then turns to what I term the detection of election fraud. He points out the crucial problem for Dems and mail in voting (including absentee voting). All that variety of state laws that have been put in place to insure the integrity of mail in voting also have the effect of causing high rates of mail in ballots to be invalidated because it's much easier to run afoul of those laws and screw your ballot up.
Now, we might presume that Dems and GOPers would screw up their mail in ballots at the same rate. However, far more Dems use mail in ballots than do GOPers--roughly 75/25--so we should expect that far greater numbers of Dem mail in ballots will be disqualified for screw ups. But what are we to presume if the absolute numbers of disqualified ballots is relatively evenly distributed between Dems and GOPers? That should lead to a presumption of hanky panky in the counting: election fraud. We now have an unreliable system, or a system that is being systematically operated in a biased--and therefore unreliable--manner. That is, if what you're looking for are electoral results that are impartial.
Cohen suggests that this is one area for Team Trump to focus on, and he points out that the Dem rhetoric of counting all votes--rather than all legal votes--is not reassuring when it comes to systemic integrity. And that leads to Cohen's important conclusion:
A popular narrative has been floating around the media that President Trump has accused the Democrats of voter fraud. That would be something that would be almost impossible to prove in large enough numbers to overturn the election in any of the close races. What is being challenged is the eligibility of the ballots. Here, the President has considerable grounds for a challenge. The argument is a statistical one. ...
If the stats turn out to be suspicious, then the behavior of the election boards in barring Republican poll watchers meaningful access to polling places puts the integrity of the vote count in further doubt. These issues will be adjudicated before the courts.
You can find a statistical argument that could lead to the reexamination of mail in ballots here [h/t commenter Frank]. The point the author makes, as does Cohen, is that statistical evidence can quickly pinpoint the type of larger scale fraud that can arguably change electoral outcomes--which is what you need to get in front of a court. This statistical analysis frees you from mucking around in anecdotal evidence and can be presented in pictures (graphs). It's more compelling and manageable in court.
Notice that this argument dovetails with Turley's argument: Republicans need to focus on the statistics thrown out by the system itself, not so much on finding individual fraudulent voters and prosecuting them--which leads to delay. Of course, those individual cases are useful in raising suspicions, but at the scale of statewide and national elections, questioning must proceed through statistical arguments if redress is sought for the type of fraud that can change electoral outcomes. Because if the fraud alleged only nibbles at the edges, courts won't take cognizance of them for purposes of challenging an election in a timely manner.
I hasten to add that the above is just one example. As Cohen recognizes, there are other types of fraud. For example, we have seen arguments, and evidence, of election fraud that addresses other types of fraud, notably the actual data movement of votes from one category to another (Trump to Biden), through the manipulation of election databases. However, what all these approaches have in common is a sophisticated analysis of bulk data--often statistical in nature, but not necessarily so in all cases--rather than the collection of anecdotal, individually oriented evidence. These data oriented approaches all point to systemic unreliability, of one sort or another, and that's the important argument that will get the case in front of the courts.
Here's a bonus read from American Thinker today: The Unholy Trinity: The co-chairs of Biden's COVID-19 panel. All you need to do is read the background of this unholy trinity to realize that they represent the new Leftist approach to science and medicine: It's not actually about science or medicince; it's about controlling people.
UPDATE: I want to draw attention to commenter Andy S.'s very recent observation, because he expresses this from the standpoint of a practicing attorney, which I am not:
I speak as a lawyer who is in federal courts all the time. Court's are used to dealing with statistical results and are probably more comfortable with them in cases like elections because it [theoretically] takes the politics out of the equation that you get when you have to reach a conclusion about the intent behind the actions of a person or an entity. It's quite one thing to say, I don't find the DNC to be credible and find that it committed fraud. Unless the judge was appointed by a Democrat, that's going to be immediately suspect. But, it's another thing to say, "I don't know why the results are wrong but the statistical evidence points overwhelmingly to a conclusion that they are wrong. Maybe it's a problem with the computer code. Regardless, the compelling evidence leads to the conclusion that the results cannot be relied upon.
I think this is also consistent with Turley's point -- if it's a systemic problem, the courts need to deal with it.
Again, it's of the essence of elections--or so we used to think--that the results must be objectively reliable. If they're not, then whatever else occurred--most likely a type of political theater--it wasn't a valid election, a real election. The world is full of political theater and fake elections, but Americans have been taught to believe that that's not what goes on here. As Jonathan Turley--and Andy S.--says, the best way to deal with fraud in the context of a national election is to frame the issue in terms of systemic reliability.
The Unholy Trinity is a scary trio indeed. No wonder Joe didn’t want his choices for cabinet and other key positions known ahead of the election. Surgeon general and "medical task force leaders” were not usually key positions until Covid19 came along - suddenly we were awash in very political medical “experts”… Biden & Co will be playing that for all its worth.ReplyDelete
Oddly Dr. Debra Birx, who has been prowling the country with her posse, checking out compliance, etc., came out with a statement that voting at the polls would be no more risky than a trip to the grocery store.
"Surgeon general and "medical task force leaders” were not usually key positions until Covid19 came along"Delete
IOW, until the Dems realized how useful "public health medicine" could be for controlling people. This has been percolating out of public view for a long time, but Covid ...
Isn’t the ultimate control their planned rebirth of their plan for socialized medicine? As I recall (dimly, I admit) Obamacare was not intended to succeed. So then we were to be moved along the conveyor belt to single payer, socialized medicine… Zeke Emanuel’s grand design. Emanuel bragged that his plan was already on Tom Daschle’s desk, awaiting his first day as secretary of HHS. Daschle was a proponent of single payer health insurance. Due to problems he created that threatened his confirmation, he withdrew his nomination and never made it to that office.Delete
I just wonder to what extent a Court will accept statistical results as evidence of fraud. Can a Court infer that there was intentional fraud? I don't know the law here.ReplyDelete
I speak as a lawyer who is in federal courts all the time. Court's are used to dealing with statistical results and are probably more comfortable with them in cases like elections because it [theoretically] takes the politics out of the equation that you get when you have to reach a conclusion about the intent behind the actions of a person or an entity. It's quite one thing to say, I don't find the DNC to be credible and find that it committed fraud. Unless the judge was appointed by a Democrat, that's going to be immediately suspect. But, it's another thing to say, "I don't know why the results are wrong but the statistical evidence points overwhelmingly to a conclusion that they are wrong. Maybe it's a problem with the computer code. Regardless, the compelling evidence leads to the conclusion that the results cannot be relied upon.Delete
I think this is also consistent with Turley's point -- if it's a systemic problem, the courts need to deal with it.
Nice spot on hiding the ball. This is where propaganda turns to group think becomes such a powerful messaging tool. Thought develops beliefs and beliefs become religions.
Next thing you know you are no longer discussing voter fraud, you are telling someone their version of Christ is crap.
If these things do overturn in court can you imagine the upheaval that lays in wait?
I honestly wonder if these guys truly think out the consequences of their actions or if they just stop at "win at all costs".
No good will become of this and I dread the results for us as a country.
"wonder if these guys truly think out the consequences of their actions...."Delete
That's one reason why the Durham busts are so important: such busts would likely wake up at least some Dems/ elites, to the nature/ scale of the fire being played with here.
Missouri, Kentucky AGs Join Lawsuit Challenging Pennsylvania Mail-In Ballot Deadline ExtensionReplyDelete
Victor David Hanson explains Trump's legal argument at 3:46 of https://www.youtube.com/watch?v=6idYZ25Qq6wReplyDelete
"There's about 5 lawsuits based on the premise that the U.S Constitution says how people vote in an individual state is determined by the state legislatures.
But in all of these states that are under contention, in the last 20 days state governors, electoral boards, or registrars have added to or subtracted from the law.
They felt that COVID meant they could extend the days that you were eligible to vote, or they said it doesn't have to be postmarked. In extremis, throw away the law.
And so the Trump forces are arguing that any state that went beyond what their legislature had prescribed, all those ballots are invalid."
That probably sounds fine to most people, but the problem is identifying the ballots that violated state law. In some cases it can be done--late ballots in PA--in other cases it's more difficult. Each state presents different issues. The second part of the problem is showing that these actions would have changed the outcome of the election.Delete
The good news is you don't have to make an either/or legal strategy decision. You can pursue both. And the statistical/systemic argument is key, because it doesn't have to waste time messing with individual ballots to get a remedy.
"any state that went beyond what their legislature had prescribed, all those ballots are invalid."Delete
How could an election which allowed such ballots not be declared invalid?
In olden times, when ballot boxes were *literally* stuffed, and when it was impossible to tell legit from fake ballots, what remedies did judges use in such situations, other than calling new elections, or turning to the legislature?
And, in this case, the ballot boxes, in multiple state, were (simultaneously?) sequestered, in rooms where only Dems had access.Delete
"So, Your Honor, how can the public have remote confidence, that this slew of ballot boxes weren't hugely stuffed?
Wasn't such a situation *exactly* the sort, that
the legislature was aiming to avoid?"
"The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States."ReplyDelete
Art II Sect 1 U.S. Constitution
"The electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President."
3 U.S. Code § 1 - Time of appointing electors
Not that this is particularly relevant, but by what reasoning is it permissible for a State to even entertain the notion of accepting ballots after close of polls on Nov 3rd. Decades ago I voted almost exclusively via absentee and the rule was absolutely rigid no ballot would be counted if received -- received -- after closing of polls on election day, no wiggle room whatsoever. Post marks were irrelevant. Of course that was so long ago that a signature of the voter had to be notarized on the ballot.
Good stuff, Anon.Delete
"by what reasoning is it permissible for a State to even entertain the notion...."
This covid thing was here for many months, plenty of time for states to get their act together, to facilitate voters being able to meet the Const. deadline.
And, in any case, the passages you quote show, that the states have no Const. authority to regulate when voters choose Electors.
These above arguments are so obviously pertinent, that I suspect that DJT could've brought them to court well before casting of votes, but had strategic reason not to.Delete
And, if ever there were a Supreme Court during my lifetime with the balls to decide a tough case as the Constitution unambiguously requires, it is the Thomas Court (consisting of Thomas, Alito, Gorsuch, Kavanaugh and Barrett).
Quite, esp. since recent ACB's addition makes possible such a Thomas Court.Delete
Not a bad strategic reason.
...and if I were totally honest, I would say I think there is only one possible squish among those five and that would be Kavanaugh. I hope to hell he never forgets what the Left did to him.ReplyDelete
Cassander, and I hope Kavanaugh never forgets that President Trump stood by him to the end. He never weakened or faltered.ReplyDelete