Election Correction

Scientific Method to 2020 Election: Are Your Results Repeatable?
"Five Red Statehouses Could Overturn the Election," Part 2.

 

Jan. 29. The best test for allegations of election fraud is to conduct repeat elections with legitimate anti-fraud safeguards. Republican state legislatures have the power to do this -- and probably overturn the election.

 

When scientists get an experimental result, they confirm it by repeating it under controlled conditions. Science is based on repeatable evidence. Conjecture and opinion are not supposed to play a role.

 

In the 21st century, it's strange that Americans never, ever repeat our election day "tests" when there is doubt about the results, or the conditions they were held under. All we get is conjectures and opinions, which of course never prove anything.

 

It's unacceptable to ask, "Is this result correct?" A scientist could not answer this question by simply intoning, "Concede gracefully," or "Grin and bear it," or "Shut the hell up!" Why is "Like it or lump it!" our only rule in national elections?

 

In real life, what is failed or broken needs to be fixed or replaced. It's common sense. "It is more honorable to repair a wrong than to persist in it," Thomas Jefferson wrote.

 

We Americans are supposed to be very litigious. We can be sticklers on principle, and perfectionists in our work. We'll shoot a scene for a movie over and over, until it's just right.

 

Yet we don't dream of pushing the replay button on a doubtful election, even to save the life of our Republic. We have automatic runoffs for close results, but nothing for fraud, irregularities or illegalities.

 

Supposedly repeat elections would impact political stability and "faith in our system, right or wrong." On the contrary, you can have faith in a system that has enough faith in itself to take the test again, fair and square. A lot of us do not trust the last election.

 

Another excuse is that repeat elections will be an extra expense. Then how come the rest of the world can afford them? Moreover, there is a way to test this at minimum financial and political cost.

 

In a disputed election, start with repeat election probes in a few key areas in the critical swing states. In these small-scale forensic test elections, adhere to the anti-fraud safeguards enshrined in state voting laws, which were not observed in November. The costs of such sampling retrials can be quite modest.

 

"Where there's a will, there's a way." It so happens that Republicans control both houses of the state legislature in five of the six swing states where the result was closest. Flipping any three of these would overturn the presidential election.

 

Republican statehouses should seize the initiative and the moral high ground. Start "compliant runoffs" -- repeat election probes in those five states pursuant to each state's fair voting laws. Small-scale test elections are well within their powers over elections. If the results vary widely from November's vote, that will muster popular backing for statewide repeat elections.

 

Investing in a fairness runoff can actually save money. It will be a deterrent to avoid future problems.

The way elections are now, with no risk of a repeat test, and enormous pressures to stand down, the door is wide open and the welcome mat is out -- it's practically an enticement to fraud and irregularities.

 

The pressure to shut up and put up is huge. A false equation is being made between the Capitol riot and legitimate questions about the conduct of the election. This has made even the conservative mega-donors threaten to cancel campaign funding for Republican congressmen who stand too tall on the fraud issue.

 

We hear two opposing narratives about the election. The Trump camp points to broad-brush indications of irregularities -- the loosening of safeguards and tiny margins of victory for Biden in key states, early Trump leads wiped out by late floods of mail-in votes, and so on. Yet third parties such as the courts and Attorney General A. G. Barr kept saying they found no signs of fraud. Which one is right?

 

The problem might be: Can you even recognize a fake ballot when you see one? Does it tell you where it has been? Is it easier to detect fraud, or to prevent it in the first place?

 

An acquaintance of mine who was an auditor in a CPA firm told this story about auditing for fraud. He was sent to check the accounts of a manager who was suspected of embezzlement. The auditors combed through the books for months, but found nothing. Some time later the culprit was indeed caught -- rather embarrassing for our sleuths. All they could say is, Sorry, but fraud can be very difficult to trace. That's why audit reports are barred (no pun intended) from promising to detect it.

 

A ballot is just a mute piece of paper or computer entry. It doesn't come with a video showing how it got there. And how do you audit millions of them? You can only probe a handful.

It is a lot to ask of the courts or other experts to separate the gold from the false when it all looks the same. To get gold, we need gold standard election safeguards to ensure trustworthy votes from the start.

 

With tons of data, it's also easy to miss the forest while checking the trees. That's why the science of statistics was invented -- to find the patterns in large numbers of records. In picking where to start with compliant runoff probes, you would look at statistical indicators:

 

Are registered voters a normal percentage of the total number of eligible voters? Are the voter rolls accurate, or haven't they been weeded out for years? Are there too many voters over 90 or 100 years old? Was the voter turnout normal? Are voting trends in line? Is there a big discrepancy in voting preference between in-person, mail-in, absentee, and late ballots?

The court could order a repeat election based on statistical discrepancies, or in response to Trump v. Boockvar. Congress has the power to take measures against electoral fraud, but declines to.[1] This is primarily the responsibility of the state legislatures.

 

Isn't it too late now, after certification of the electoral college vote and the change of government has taken place?

 

No, for several reasons.

- The federal statute of limitations on major fraud is seven years.

- Our Constitution was not designed to resolve election fraud and irregularities. The Constitution is a civil code, and its provisions are not intended for handling criminal matters like fraud. The electoral college certification procedure in Amendment XII definitely does not contemplate irregularities. We have not yet begun to tackle the issue.

- A repeat election is the only way to decide the election fairly and observe due process.

- VP Pence was mistaken to proceed with certification, since he explicitly recognized the fraud issue. Every citizen has the duty to not condone fraud, but to oppose it. His proper course was to stay the proceedings until these concerns could be resolved. The wheels of justice grind slowly.

- The vote in Congress then violated due process, as the Democratic Party acquitted itself of the charges against it. No one can legally acquit themselves.[2] 

- Amendment IX specifically states that no provision of the Constitution shall be construed to deny the rights of the people -- such as the right to due process, and to a fair election free of irregularities.

- This means that formal provisions, like the certification or timing of elections and inauguration, do not override the essence and purpose of elections, which is that the people's true voice shall be heard.

- If repeat elections return a clear result in favor of Trump, either the principle of legitimacy, or the Supreme Court, will tell Biden to concede.

 

Neither party has ever considered repeat elections as the way to discover the true will of the people, or to set due process above party. Both parties apparently prefer to exercise power without asking us. The Democrats ignored due process by deciding electoral college challenges in their own favor. Republicans were similarly ready to let their House delegations or state legislatures decide the outcome directly.

 

Under the Elections Clause of the Constitution, the State legislatures -- not the governors, nor the courts, nor Congress -- have the chief power to establish voting laws and organize elections in their states. [3] While they no longer select electors directly, they are the bodies who can hold runoffs, whether statewide, or small-scale and forensic.

 

Looking ahead, Congress should take its share of the responsibility to ensure federal election integrity, and pass a law mandating repeat elections where the result is close and state laws have not been followed. It should also pre-empt such situations arising by finally adopting the main safeguards recommended by the Carter-Baker Commission on Electoral Reform in 2005.

 

Regardless of the outcome, repeat elections will be a win-win for the nation. A conscientious exercise for election integrity will be a victory for fair play and due process over "might makes right," for mutual respect over fear and factionalism, and a renewal of political stability and national unity. It will show the world that we have not lost our way, nor the ability to learn new solutions to old problems.

 

Resources and Notes

 

TABLE - Five Swing States where Republicans Control Both Houses of the Legislature

 

In three of these five states, Arizona, Georgia and Wisconsin, the total margin for Biden was only 43,000 votes. If Trump had won these three there would have been a tie at 269 electoral college votes each -- quite a close call. In Pennsylvania, Democrats control the state Supreme Court. The constitutionality of its intervention into election procedures is at issue in the case Trump vs. Boockvar now before the US Supreme Court. https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/20-845.html

 

In early December a major lawsuit, Texas vs. Pennsylvania, was filed with the U.S. Supreme Court by the State of Texas along with a good number of other states and over 100 Republican Congressmen. The plaintiffs noted that election laws established by state legislatures were not followed, but were illegally set aside in Georgia, Pennsylvania, Michigan and Wisconsin, "which flooded their citizenry with tens of millions of ballot applications and ballots in derogation of statutory controls."[4]

 

https://www.supremecourt.gov/DocketPDF/22/22O155/163052/20201208133328638_TX-v-State-MPI-2020-12-07%20FINAL.pdf These races all resulted in narrow victories for Biden, quite possibly due to these illegalities. These four states have a total of 62 electoral votes, so if they had gone to Trump he would have won by 50 electoral votes, 294 to 254.

 

One flaw in the Texas suit was that it apparently argued to have the state legislatures appoint electors without regard to flawed election results, which is not in accordance with their laws. It is strange that no party or branch of government has suggested repeat elections -- especially when losing parties stand a fair chance of overturning the result. Plaintiffs might do well to ask the Supreme Court to support repeat elections in conformity with state law as a form of relief in Trump vs. Boockvar.

 

What are the obstacles to wider acceptance of repeat elections?

- Parties might not want to spend extra funds on a repeat election. One would prefer not to allow campaign advertising, if the aim is to repeat the conditions of the first election as closely as possible, but SCOTUS has ruled against such bans.

- People tend to look for reasons not to adopt new ideas. The fact that this has rarely been done in the first 200 years of the Republic will be used as a "reason" not to. Here are some tendencies to watch for:

- Literal-mindedness: lack of attention to basic principles, failure to think outside of the box, expecting detailed precedents or instructions.

- Timidity

- Trivial objections ignoring the significance and cost benefit ratio

- Obfuscation and confusion

- Apathy, fatigue

- Opposition by vested interests

 

Is it constitutional for a state legislature to call repeat elections?

Yes. Maine has held repeat elections several times. Florida had an initiative on the ballot to require repeat elections for amendments to the state constitution. Opponents did not question its constitutionality.

Article II of the Constitution states that "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors" for the offices of President and Vice-President. In McPherson v. Blacker, the Supreme Court's interpretation was that "the legislatures of the several States have exclusive power to direct the manner in which the electors of President and Vice President shall be appointed." Currently, the states decide this by popular vote, in the same elections as congressional races.

Also, the Tenth Amendment stipulates that: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

"Laws requiring people to register to vote in advance of elections or mandating that they vote at their assigned polling places are exactly the types of restrictions that the Elections Clause permits." https://constitutioncenter.org/interactive-constitution/interpretation/article-i/clauses/750

State legislatures might need to pass special legislation enabling the repeat elections, which can then include extra safeguards like hand ballots and voting in person only.

 

ENDNOTES

[1] Congress has the "power to protect the choice of electors from fraud or corruption." https://constitution.congress.gov/browse/essay/artII-S1-C2-1-2-1/ALDE_00001121/   However, it has failed to pass legislation to stop fraud, such as recommended by the Carter-Baker Commission.

[2] Regarding a conflict of interest in Congress, most of the allegations of a link between Nancy Pelosi and Dominion Voting Systems were found to be untrue by USA Today, except that her former chief of staff is indeed a lobbyist for Dominion. https://www.usatoday.com/story/news/factcheck/2020/11/20/fact-check-alleged-dominion-democrats-links-wrong-misleading/6248542002/ 

[3] Article I, Section 4, Clause 1, The Elections Clause: "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations." Historically this has been interpreted to mean the state legislatures set the laws governing conduct of elections, while the Federal government intervenes rarely, in cases where state laws are seen as unconstitutional.

The Democratic Party is seeking to change this balance of power with its "For the People Act." https://en.wikipedia.org/wiki/For_the_People_Act While some of its points sound good, it would make it much more difficult for states to impose safeguards against fraud. It includes some self-serving propositions to tighten the Party's hold on power, so that it might be better termed the "For the Party Act." On Jan. 28 Democrats introduced the "Vote at Home Act." This could set off a tidal wave of ballot harvesting and vote buying that would swamp all Federal elections indefinitely, ushering in one-party pseudo-Marxist rule to America. 

[4] https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/22o155.html , https://www.supremecourt.gov/DocketPDF/22/22O155/163052/20201208133328638_TX-v-State-MPI-2020-12-07%20FINAL.pdf  (pp. 10 and 17 of 44)