It’s Time to Concede – for the Good of the Country

A friend sent me this article detailing Trump attorney Sidney Powell’s claims of vote manipulation in the presidential election. She told me Powell is being censored in the US, but I found a lot of articles, like  this one that go through Powell’s charges fairly thoroughly, but say they have no basis in fact. I don’t think discrediting is the same as censoring, but it did make me want to address the charges more completely, especially since Rudy Giuliani is making some of the same claims, with slightly more dramatic flair.  

As everyone knows by now, rather than conceding, the Trump campaign has filed multiple lawsuits in many of the states that were close but ended up in Biden’s column. Given Powell’s contention that she has “so much evidence I feel like it’s coming in through a fire hose,” one would expect the lawsuits to lay out some of this evidence. The big claim the two are relying on in press conferences is that vote counting machines were rigged to produce wins for Biden. This is already a bit inconsistent, since the pre-election predictions of fraud by the campaign were casting doubt on mail-in ballot validity, yet the claims of conspiracy all have to do with voting machines and tabulation systems.  

Perhaps the reason for this new direction is that earlier claims about “truckloads of ballots, all for Biden” being “found,” as if they were fraudulently included, have not gotten enough traction. If you’re talking about mail-in votes, of course they were largely for Biden, because 1) Trump had told his supporters COVID is over, 2) Trump had told his supporters not to trust mail-in voting and to vote in person, and 3) Biden supporters generally were more worried about standing in long lines at polling places, so they either mailed the ballots in or dropped them in the drop boxes. And in Pennsylvania, for example, the Trump campaign had sued to force Pennsylvania not to start counting the absentee ballots, like ours, which had come in over a month prior to the election, until after the polls closed. So they set up a system whereby the votes that were counted later would be heavily weighted for Biden and then they said, “See? Voter fraud! How come we went to sleep and Trump was winning and then we woke up and Biden won?”

These newer claims, then, are an attempt to reframe the debate. Shady companies, links to that most feared of right-wing bogeymen, “socialism” in the (non-existent but suggested) link to Venezuela, and technology no one really understands. So, then, what are the specifics of the lawsuits? This is probably not an exhaustive list, but here are most of the lawsuits, taken from a Time Magazine article,  that have been filed in the battleground states, with my comments below the description of the lawsuit. Sorry for the length of this post, but there are a lot of lawsuits:

Pennsylvania

There are currently seven lawsuits, some of which have yet to be decided:

1. To compel Philadelphia election officials to stop counting ballots.

A federal judge dismissed the request.

Pennsylvania law stipulated that as long as the vote was postmarked by election day, it could be counted up to 3 days later. Of course, Philadelphia, being the most populous area of the state, had the most ballots to count. Now if you have a rule in place that says your ballot has to be received by election day, you the voter can plan for that, but I don’t think stopping counting legitimate votes 3 days earlier than the rules on the ballots stated is just. I think the federal judge was correct.

2. To compel state election officials to allow Trump campaign officials closer observation of the counting process.

Officials from both parties were always allowed to observe. This case revolved around how far away they were allowed to be. The election officials said it would slow down counting votes to have too many observers too close. Eventually, observers were allowed to be 6 feet away.

I would have preferred that they allowed the people to move closer, not because there was any evidence this would stop “cheating” of some sort, but because it would make it harder to doubt the results. But I understand why they didn’t want to do anything to slow up the process and disenfranchise voters who had complied with the rules as a result.

• To compel Pennsylvania Secretary of State Kathy Boockvar and all 67 counties to impose an earlier date for voters to show proof of identification if it was not on their initial ballots.

There were two different lawsuits, one from the campaign and one from local Republicans, both of which involved people who didn’t bring proper identification to the polls. People were allowed to vote on provisional ballots and told to bring identification to the polls after the fact. Two judges ordered officials to segregate provisional ballots. While Boockvar has said there were very few of these ballots, she has not released a number.

This is part of the mess of the system, but doesn’t seem to have anything to do with Giuliani or Powell’s allegations or very much to do with the outcome of the election, but it is definitely a problem, partly due to the fact that there is still a huge disagreement about providing identification. I am on the side of being required to provide identification. I know voting rights people say it “disenfranchises” people, but if you provide a voter ID free of charge, it doesn’t seem to be much of an ask to require people to bring it to the polling place. I always brought my election identification card to polling places and was surprised, in the four states I voted in, that it was never required. But that is a general election problem and doesn’t have much to do with this election in particular. I would also feel more comfortable with the Pennsylvania Secretary of State providing information on the numbers.

• To compel the Montgomery County Board of Elections to stop counting mail-in-ballots

The campaign and Republican National Committee filed suit to halt the process of counting mail-in ballots in Montgomery County, one of the counties in suburban Philadelphia, alleging that the board of elections was counting 592 ballots that had not been placed in secrecy envelopes and was therefore not complying with requirements. Pennsylvania election data shows Montgomery county overwhelmingly voted for Biden.

On November 13, a judge denied the request from the campaign, and ordered that the county could count the ballots. At an oral argument for the case on November 10, the lawyer representing the campaign, Jonathan S. Goldstein, told the judge they were not accusing the county administrators or the voters casting these ballots of voter fraud.

This seems to be another “technicality” issue, given that Goldstein said they were not accusing anyone of fraud. It would be nice if we knew what proof there was that 592 ballots had not come in in secrecy envelopes, because I know in Bucks County, where I voted, they were quick to throw out ballots that were not in the second envelopes and the instructions clearly stated that they would.

5. To intervene in an already existing dispute before the US Supreme Court about whether ballots the state received after 8pm on Election Day should count.

After Pennsylvania’s Supreme Court extended the ballot receipt deadline to Nov. 6, state Republicans twice appealed the case to the US Supreme Court. The first time they were unsuccessful, and the second time the court declined to expedite the decision before the election, but left open the possibility of hearing it afterwards. On Nov. 6, Supreme Court Justice Alito, in response to a motion from Pennsylvania Republicans, ordered state election officials to segregate any ballots that arrived after election day. State officials had already ordered counties to segregate any ballots that arrived after Election Day, likely anticipating a future challenge.

Many of the Pennsylvania suits seem to overlap. This is another lawsuit involving mail-in or absentee votes that were mailed by election day but received after election day. Pennsylvania law, recognizing the likelihood that votes cast on time could still arrive late, allows this 3-day window. There’s been a long tradition of military votes coming in after election day and being counted. This is one of those times, too, when the “states’-rights” Republicans suddenly want a decision at the Federal level, even though election processes are generally determined by the states.

6. To stop Boockvar and seven individual counties from certifying the election results

The campaign filed a 105-page lawsuit on Nov. 9 alleging state officials created a “two tiered” system to ensure Biden would win the state by allowing vote-by-mail – a violation of the constitution’s equal protection clause – and that the results should consequently not be certified. The seven counties named as defendants in the lawsuit – Allegheny, Centre, Chester, Delaware, Montgomery, Northampton and Philadelphia – all voted for Biden.

Litigation is still ongoing, and the Democratic National Committee has filed a motion to intervene. Legal experts have said it is unlikely the case will succeed. Hasen wrote in the Atlantic that the claims are “ludicrous.” On Nov. 13, two attorneys with the law firm Porter Wright Morris & Arthur withdrew from representing the campaign. On Nov. 15, the campaign filed an amended, narrowed, complaint that focused solely on voters that had been allowed to correct deficiencies on their ballots. On Nov. 16, the second group of attorneys representing the campaign withdrew from the case.

Talk about cherry picking. The entire state allowed vote by mail, but the campaign sued counties voting for Biden. But regardless of the outcome, which seems likely to be against the campaign, given the number of lawyers jumping ship, this is again not about voting systems, but about mail-in paper ballots.

7. To stop Bucks County from counting mail-in ballots

The campaign had previously filed a lawsuit in state court on election day to stop Bucks County – my home county and a county where Biden narrowly won – from counting mail-in ballots (this would include mine, so I am particularly sensitive to it), but the lawsuit was dismissed. The campaign filed another complaint on Nov. 8, alleging that the county accepted over 2,200 defective ballots. A conference is scheduled for November 17.

It is unclear if the majority of these ballots were cast for Biden or Trump, although Democrats in the state overwhelmingly voted by mail this year. But even if the court rules in favor of the campaign and throws out these ballots, it is unlikely to change the outcome. Biden leads Trump by 16,000 votes in the county, according to unofficial results.

This is the last lawsuit filed in Pennsylvania and involves approximately 2,200 votes, so it’s unlikely to make a difference. It is another lawsuit attacking mail-in ballots.

Nevada

With Trump narrowly trailing Biden in the state, the Trump campaign has backed two cases to impact the counting of ballots:

1. To impose an injunction on the automated signature-verification machines used in Clark County as ballots continue to be counted.

A federal judge rejected the request on Nov. 6, ruling that federal judges should not be involved in state election administration and there is no evidence Clark County is doing anything unlawful.

The Trump campaign had held a press conference on Nov. 5 introducing Jill Stokey, a Nevada voter who claimed that when she tried to cast a ballot, she was told someone had already cast a mail-in ballot in her name. She alleged that the signature verification technology used in Clark County, the most populous county in the state, enabled someone to cast a mail-in ballot in her name. Her lawsuit asserted, without evidence, that “lax procedures for authenticating mail ballots” had resulted in “over 3,000 instances of ineligible individuals casting ballots.”

Aaron Ford, Nevada’s Attorney General, called Stokey’s allegations “absurd.” “While the Attorney General’s Office normally does not comment on pending litigation, I feel compelled to dispel the misinformation being circulated to undermine the public’s trust in our election,” he said in a statement.

We know errors occur, so it’s possible that something happened that made it appear that Stokey had voted by mail when she hadn’t. And this actually does involve an electronic system of some sort, so it’s in the same universe as Powell’s assertions. It’s still quite different, though, and you would think that if other people had run into the same problem, they, too, would have come forward. So it seems, at best, a one-off clerical error of some sort.

2. To compel state election officials to allow the public closer observation at a Clark County ballot-counting facility.

The Trump campaign, Republican National Committee, and a plaintiff, Fred Krause, filed a lawsuit before election day in state court seeking to halt the counting process in Clark County until they could observe the process.

A district judge rejected the lawsuit, ruling they lacked standing to bring the claims and had no evidence to back up their arguments. The plaintiffs appealed to the state Supreme Court, which accepted the request to expedite the case, but denied the request for immediate relief. In a November 5 order, the State Supreme Court said the campaign and state Republicans had reached a settlement. According to local news, the settlement included expanding observation access, so that all counting tables would be visible to the public. On November 10, the campaign officially filed to dismiss the suit.

Again, I’d be happier if they had allowed access before the election to avoid the appearance of impropriety, but I can understand how much harder a counter’s job would be with someone stand over his or her shoulder. And this is saying the general public, not just appointed officials, which seems ridiculous and a little dangerous. But this is another lawsuit dealing with human ballot counting, not some system programmed to incorrectly count the ballots.

Michigan

When the Biden currently leads Trump by a little more than 155,000 votes. The state has seen at least three cases since Election Day:

1. To halt the counting of absentee ballots, on the grounds that campaign officials had not been given access to observe the process as required by state law.

Michigan Court of Claims Judge Cynthia Stephens denied the campaign’s request on Nov. 6.

The campaign lost on a technicality because they hadn’t served the defendants with a copy of the lawsuit.

This was another lawsuit about absentee ballots, which the campaign assumed would be largely in Biden’s favor. No allegations of fraud or vote count manipulation.

2. To halt the certification of election results in Detroit, Michigan’s largest city and a Democratic stronghold.

Judge Timothy Kenny denied the motion for injunctive relief on Nov. 6, saying there was no evidence that oversight procedures had not been followed.

The case was not brought by the Trump campaign, but by a conservative group, the Election Integrity Fund, and sought to stop election workers in Detroit from “curing” absentee ballots that could not initially be read by a machine, a normal part of the ballot counting process. The case alleged that the work had not always been overseen by election inspectors from both major political parties, and that certification should be delayed until inspectors could review the process.

This involved counting ballots that for some reason couldn’t be counted by the machine, a normal procedure and one that anyone who has to rely on scans or automated scoring is familiar with. There will always be a certain number of ballots that for some reason the machine can’t read (weird ink, light writing, etc.). These ballots are segregated and counted by humans. Although, once again, this involves a machine, there’s nothing in this process that involves hacking the machine results.

3. To halt the certification of election results because of voter fraud

The campaign filed a federal lawsuit on Nov. 10 against Michigan’s Secretary of State Jocelyn Benson, the Michigan board of state canvassers, and Wayne County (where Detroit is located), alleging that the results should not be certified because the defendants “allowed fraud and incompetence to corrupt the conduct of the 2020 general election.” The campaign said in its complaint that they have over 100 sworn affidavits from election challengers to prove these allegations. An examination of the affidavits found no evidence of fraud. The majority alleged they faced intimidation when trying to raise objections, and were frequently admonished to stay within six feet of election officials. The two Republican election certifiers in Wayne County have refused to certify, then certified, then tried to rescind their certification. So far they have not been allowed mulligans.

Again, this is a local issue, albeit quite a contentious one, with charges of racism and fraud, but it has nothing to do with the system tabulating votes incorrectly.

Georgia

The Trump campaign has so far filed one suit:

1. To disqualify about 53 ballots.

A poll watcher in Chatham County reported seeing a stack of late ballots that may have arrived after the 7 p.m. Election Day deadline get mixed in with ballots that had arrived on time.

A Superior Court judge in Chatham County rejected the suit on Nov. 5 after hearing testimony from county officials that the ballots had, in fact, arrived on time. “There is no evidence that the ballots referenced in the petition were received after 7:00 p.m. on Election Day,” the court found.

This involves humans and timing, not systems and conspiracy. It’s also not likely to make a difference in a state that has now finished a hand count of all the ballots and found the results within the margin of error of the first vote count. Biden won the state by about 12,000 votes.

Arizona:

On November 7, the Trump campaign and Republican National Committee filed a lawsuit in state court alleging voters’ ballots had been rejected because they contained “bleeds,” splotches” and “stray marks.” These allegations appear similar to claims circulating on social media that ballots would not be counted if voters filled them out using a Sharpie marker. Election officials have said these claims are false. A lawsuit with similar allegations was filed in the same court system by a group of voters who were represented by a conservative legal fund on Nov. 4; plaintiffs dropped the lawsuit on Nov. 7. They did not provide a reason for dismissing the case. On Nov. 13, the campaign’s attorney filed a notice of mootness, acknowledging the lawsuit was unlikely to change the outcome.

Since the campaign dropped the suit, it doesn’t really matter, but again, it has to do with a small number of ballots being filled out in a way that the machine couldn’t read.

None of these lawsuits, then, appear to have anything to do with Powell’s and Giuliani’s allegations that there was a conspiracy involving voter tabulation companies, Venezuela, Argentina, and, of course, the Democratic machine, all of whom either were paid to install Joe Biden or were the people doing the paying. Both Giuliani and Powell promise that there’s massive evidence, to which they have access, that this fraud occurred, yet they are not sharing any of that evidence with the American people. While they are not providing evidence of a deep state conspiracy, they are doing everything they can to undermine the trust of the American people in the election process.

They are also causing serious damage to at least two corporations, Smartmatic and Dominion, without any proof at all. Their first allegation, that the two firms are connected, has been denied and discredited. Smartmatic tabulated votes only in Los Angeles County, where, as expected, Joe Biden won 71% to 27% for Trump. Note that there was no lawsuits filed in California. Since Biden won California by over 5 million votes, the 3 million that were cast for him in Los Angeles wouldn’t have changed the outcome. Yet Smartmatic had to spend time and money refuting allegations of malpractice and clarifying their relationships with other companies and countries. Dominion, in contrast, did provide voting machines in quite a few states and jurisdictions, having acquired Diebold, the old leader in voting equipment, in 2010. Dominion is a Canadian company with offices in Denver. To address the charges of voter fraud and shady connections, Dominion published a long response on its website. The BBC and AP News have also debunked the charges. There is no reason the BBC wouldn’t verify the charges if they were true. (They love breaking a good story and they have no skin the game). And, as I say, if there were any validity in the allegations, the Trump lawsuits would be quite different in nature.

As it stands, the people who should sue are Dominion and Smartmatic among others. Imagine developing a successful business and having it besmirched by two people who would stop at nothing to curry favor with their boss (and who are finding the lawsuits quite lucrative—Giuliani has been widely reported to be charging $20,000 a day for his services). Think of the Colorado employees of Dominion whose jobs are now threatened because in the future, jurisdictions will probably think twice before giving them their business. The party that sees itself as pro-business seems to have no problem destroying businesses for its own ends. As my friend kept telling me during the Brett Cavanaugh hearings, once your reputation is damaged, no matter how blameless you are, people will think you are guilty.

This all makes me incredibly sad. Sad that so many people, rather than accepting the results of an election and admitting their candidate was flawed, choose to believe in a preposterous and damaging conspiracy theory. I didn’t like Hillary Clinton’s “vast right-wing conspiracy” or her discussions when she was peddling her book that blamed other people or systems for her loss in 2016. But she conceded. Her campaign may have pushed recounts and she may natter on about Russian influence, but she congratulated Donald Trump and people weren’t worried about how to get the exiting president out of the White House. Donald Trump’s inability to accept defeat is damaging, but his enablers are even more damaging. In my lifetime of voting, my candidate has won 5 times and my candidate has lost 6 times. The losses upset me and I tried to educate myself more and figure out what needed to change. I never decided that someone must have cheated if my candidate lost. We need to make elections easier to understand and more transparent going forward, but we also need to stop extremists from destroying the entire system.

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