Recently, the word “unity” is being brandished by Republicans in the wake of the January 6th riot in the Capitol to ask the country to look past what happened and why it happened. But real unity requires agreement, agreement on basic principles and agreement on basic facts. Republicans offer neither and, in fact, turn their backs on the things that have historically provided unity.
The United States of America are able to be united based on their fundamental agreement to the principles of the Constitution, principles that Republicans purported to champion in the past. Let’s review some of the fundamental principles that once united us, and, as we do, ask yourself whether you agree, and whether you believe that Republican leaders agree, based on their statements and conduct.
1. The people of each state have the power to determine who their electors will be, and those are electors should vote in accordance with the votes cast in their state.
2. If there is a disagreement about the validity of certain votes, or the outcome of the election, state law determines whether and how an audit or recount must be held.
The doctrine of state sovereignty (the right of a state to have control over its own laws and procedures) and Tenth Amendment to the Constitution, among other principles, assure that neither the Supreme Court nor Congress have power to determine state law. Once a state court has determined a question of state law, the doctrine of federalism requires that federal judges and Congress must defer. This was once an article of faith among Republicans, and still is for any of them who are truly conservative.
3. If people who have standing want to challenge an election result, they may appeal to a court.
The doctrine of standing is one of our basic rules of law to restrain the powers of courts, and to ensure that the parties before the court have a legitimate interest in the outcome. No matter how many people are injured by a person’s conduct, I don’t have standing to sue them unless I have been injured myself. I have no standing to enforce application of zoning laws to a house on the other side of town, nor to force my neighbors to get a divorce, no matter how badly they need one. More to the point, one state does not have standing to tell another state what its election laws should be. In this case the rule of standing is a way to ensure state sovereignty, and not a mere legal technicality.
4. The court will decide the appeal based on standard rules of evidence. Foremost among these is the requirement that a person testifying must do so under oath and must have first-hand knowledge of the facts they testify to, and may not rely on hearsay or mere suspicion.
Centuries of experience have taught us that if trials are going to be how we as a society determine what the truth is, we need to base that determination on a reliable basis. These bases include the requirement that a witness to what happened at a car accident or a murder, must have actually witnessed the event in question, and cannot be relying on what they heard someone else say (or, as lawyers call it, “hearsay”). We have a right to cross-examine our accusers, and you cannot cross-examine someone who is not in court. Similarly, a person who wants to give expert testimony must actually be an expert. A document introduced in evidence must really be what it seems to be, and not a forgery or a bad copy. These rules of evidence are not mere technicalities, but rules proven over the centuries to avoid bad decisions.
The requirement of testimony under oath is another such rule. The sad reality is that people lie, even in court. But we have come to believe that people are less likely to lie if they will be punished for lying if they are caught. Not a perfect system, but maybe the best we can do.
5. The party challenging the results in a court proceeding has the burden of proving that: 1) they have standing to bring a challenge and 2) they have shown by a preponderance of credible evidence that there was a problem with the election that would change the result.
The burden of proof is another established principle for how we make decisions as a society. Very often both sides to a dispute will have some evidence in support of their decision. In such cases, our determinations as to what the truth is and what the parties’ legal rights are, depend on who has the burden of proving what. In criminal cases, the burden of the prosecution is to prove guilt beyond a reasonable doubt. In civil cases, like election challenges, the burden is lower and is framed differently from state to state, but generally requires a “fair preponderance of the evidence.” When Rudy Giuliani makes extravagant claims of fraud, and then asserts that fraud has not been disproved, he is disingenuously trying to shift the burden of proof from himself to the states. That may work at Four Seasons Landscaping, but will not work in court. No one should be surprised when his cases are thrown out.
A related burden is the burden of pleading. Under the laws of most states, fraud must be pleaded with particularity – that is you have to specify what the fraud was and how it affected the outcome. This is not a mere technicality, but avoids the court’s wasting time and the taxpayer’s money on vague claims that would not affect the result. So, for example, if the margin in a particular election is 10,000 votes, a complaint alleging only two instances of fraud would be, and should be, dismissed immediately. But for the requirement that fraud be pleaded with particularity you might get all the way to trial before finding out that the claim, even if proven, has no effect on the result.
6. A party unhappy with the lower court decision rejecting their claim can appeal to an appellate court, up to the highest court in the state, or the US Supreme Court if federal rather that state law is involved.
7. Once any legal challenges are resolved, each state certifies the result and selects its electors accordingly, and sends its votes to Congress.
8. On January 6, Congress counts the electoral votes submitted by the states Representatives can object to votes submitted by a state, and if a majority of both houses concur in the objection, votes can be rejected
9. Congress counts the electoral votes that survive the objection process and determines the winner of the election.
This is the presidential electoral process that is the basis of our unity. It is what We the People agreed to when we ratified, and then amended, the Constitution. It is what we have adhered to until now, with one notable exception in 1861. It is noteworthy, but should not be surprising, that the constitutional process does not include:
- the ability of one state to challenge the process or results in another state
That would violate core principles of standing, state sovereignty and federalism. As desirable as it might be to have a national, and not a state-by-state, election of the President, until we amend the Constitution to allow that, the laws and process of each state must be respected
- the ability of Congress to conduct its own audit of a state’s election results
Once again, this is essential to protect state sovereignty and federalism, principles modern-day Republicans seem to apply only when they find it convenient.
- the ability of Congress to object to a state’s certified results not because of fraud proven under state law, or because of a failure to follow the constitutional process, but because a number of constituents are concerned that there might be fraud
Otherwise, a demagogue would be able to interfere with an election by repeating baseless accusations of fraud until some voters became concerned. An objection based on voter fear rather than fact abandons the rule of law for the sake of political expediency, and ought to be treated as a violation of a member’s oath to defend the Constitution.
- threats of violence to interfere with vote-counting and to threaten state election officials, the vice president or members of congress with physical harm if they certify the election
This is what the Founding Fathers feared above all else. It is hard to imagine anything that is more violative of the rule of law and the oath to defend the Constitution.
In addition to agreeing on basic principles, unity can require agreement on basic facts. In the case of the 2020 election, certain facts are beyond dispute.
- Following the process described above, states reported vote totals that would give Joe Biden 306 votes in the electoral college, more than the 270 votes needed to win the election.
- President Trump asked for audits and recounts in a number of those states. None of those audits or recounts showed irregularities sufficient to change the result of the election in any state.
Note that it is simply not true, as some Democrats assert, that “there was no evidence of election fraud.” There undoubtedly was such evidence, and in some cases, there was evidence undeniably showing fraud, as in the case of a man who voted twice, once for himself and once for his mother. In fact, there is some fraud in every election. The question is whether the level of fraud, mistake or irregularity in this election was sufficient to change the outcome, a question that each state answered “No.”
- President Trump and others on his behalf had the opportunity to bring court challenges to the counts in any states they wanted, and in fact they brought over sixty lawsuits. Most of those cases were dismissed, with dismissals upheld on appeal. None of the lawsuits were successful in changing enough votes to make a difference in the electoral count in favor of Joe Biden.
The President exhausted his legal remedies in trying to change the results of the state counts, audits, and recounts. Those who claim that the cases were decided on “technicalities” (whatever that means) should be aware that cases are decided on “technicalities” like filing deadlines, standing, and failure to plead fraud with particularity every day. To deny the legitimacy of a court decision because of this sort of technicality is to deny the rule of law. What exactly is it that the deniers want to substitute for the rule of law?
- In accordance with the constitutional process, Joe Biden’s victory was certified by the states, the Electoral College, and by Congress.
Most people are unfamiliar with the details of the election process because there are other principles that have guided us, principles not contained in the Constitution but which are essential to the functioning of our democratic republic.
10. Ever since John Adams turned over the reins of government to his arch-enemy Thomas Jefferson, we have relied on the principle of a peaceful transition of power.
11. As part of this peaceful transfer, the loser in a presidential election concedes once the outcome under the process described above has become clear. Al Gore won the popular vote, but conceded the 2000 election after the Supreme Court stopped the recount in Florida. Hillary Clinton won the popular vote by 3 million votes, was behind in the Electoral College by only 80,000 combined votes in three states, and knew about substantial Russian interference that most voters did not; nonetheless she conceded the 2016 election. Richard Nixon who had good reason to suspect that actual voter fraud in Illinois (courtesy of the Daley machine) had cost him the presidency, conceded the 1960 election.
Throughout our history, the way we have achieved unity after a hotly-disputed election is for the loser, out of a patriotic concern for the good of the country, to concede not only the result of the election, but its legitimacy. President Trump and most of his supporters refuse to do this. What principle of unity do Republicans offer in its place? Quite simply, none.
Rather, Republicans continue to adhere to a strategy that ensures disunity. Challenging the legitimacy of a democratically-elected Democratic president has become a feature of Republican politics. Republicans challenged Obama’s citizenship; Donald Trump announced months before voting started that the 2016 and 2020 elections were rigged; a majority of congressional Republicans voted to overturn the results of the 2020 election, despite full compliance with the process laid out in the Constitution. Republicans in recent years have regularly questioned the validity of our elections, and have thereby spread doubt about the basis of our unity.
At best, Republicans in 2020 may simply be taken in by Trump’s latest con — using bogus claims of election fraud to raise money for himself. At worst, they may be cynically perpetuating the lie that the election was stolen to increase their own chances of holding on to power. But whatever the reason, the absence of a concession by Trump or Congressional Republicans that Joe Biden is the legitimate winner of the 2020 election, it is hard to see what basis there could be for an agreement to create the unity everyone wants. I offer a modest proposal.
First, sunlight is the best disinfectant. After Joe Biden is sworn in, the bogus nature of claims of election fraud should be exposed in public on a state-by-state, claim-by-claim basis. This could be done by reading transcripts from actual cases, but might get a broader audience if Rudy Giuliani — on national television and subject to rules about fraud and perjury and making misrepresentations to a tribunal — had to provide actual evidence of the President’s claims, with witnesses subject to cross-examination. Talk about must see TV. If Congress cannot or will not conduct hearings, an enterprising network might take up the challenge.
Second, I agree with Ted Cruz and some other Republicans that we need an investigation to restore our faith in the integrity of our elections. Ideally it would be conducted by an independent commission and not merely a bipartisan one, since given our current inability to escape the gravitational pull of tribalism, the work of a bipartisan Commission would invariably result in a food fight rather than fact-finding. The Commission should re-examine the issue of voter fraud, even though such claims have been discredited repeatedly. But it should look into other more serious issues with election integrity – issues like money (especially dark money) in politics, systematic campaigns of misinformation and disinformation, voter suppression, and gerrymandering. There should be a public report of the results with recommendations and, if applicable, referrals for criminal prosecution.
The 2020 election has been a wake-up call on the fragility of our democracy. But if, in the end, we are able to achieve a system of transparent, free elections going forward, it will have been worth it. And that should be something we can truly unify around.
