“Last-minute changes to longstanding election rules risk other problems too, inviting confusion and chaos and eroding public confidence in electoral out-comes” – Supreme Court Justice Gorsuch
Ron Pisaturo recently commented on the “burden of proof” regarding the U.S. 2020 Presidential Election. He writes:
“The burden of proof should always be on those who seek to certify an election. That burden is especially difficult in a close election. That burden has not been met in the 2020 election for President.
“In a year when the number of mail-in ballots increased by an order of magnitude, safeguards should have been increased. Instead, the safeguards were reduced. Indeed, state officials went so far as to circumvent state law in order to reduce safeguards. Requirements for voter and witness signatures were reduced or eliminated. Requirements for voters receiving blank ballots by mail were reduced or eliminated. Requirements for dropping off completed ballots were reduced or ignored. Regional counting centers were set up for the first time, requiring more transit of ballots, and allowing for enormous counting rooms so that official observers could be corralled far away from the action they were entitled to observe—yet still be told that they could not complain because, after all, they were in the room.
Evidence of illegal votes—minors voting, non-citizens voting, non-residents of states voting, individuals voting more than once, individuals without residential addresses voting, late votes being counted, broken chains of custody of ballots—has been identified, impacting many thousands of votes, far more than the slim margins of victory in more than enough states to swing the election. Instead of investigating this evidence, state officials have ignored it, or—worse—have obstructed investigations into this evidence.
“Hundreds if not thousands of sworn affidavits have testified to violations of election law or to outright fraud, again impacting many more votes than the margins of victory in various states. Instead of investigating these allegations, state officials have ignored them and obstructed attempts to investigate these allegations.
“The courts have mainly refused to consider the evidence, on the grounds of standing or laches. Plaintiffs were deemed either too early, with no harm yet inflicted, or too late. Three Wisconsin Supreme Court Justices who actually considered evidence decided in favor of President Trump. But in most cases, when courts did consider evidence, the standard of evidence applied was that of a criminal case—though plaintiffs had a tiny fraction of the time usually needed in a criminal prosecution, and in the absence of investigation or even cooperation by law enforcement and other government agencies. This posture by the courts gets wrong the burden of proof in this matter. The certifying of an election is a positive act, requiring proof of diligence in upholding the law to secure the election.”
Mr. Pisaturo argues later that based on this line of reasoning, “State legislatures, elected by the people, could select electors. The U.S. House, elected by the people, could elect the President.”
You can read the full post here.
Though I agree that the removal of election safeguards may have determined the final election result, I’m afraid I have to disagree with his remedy as the over-turning of results requires legal proof of fraud.
That there may be fraud is not legal proof that there is fraud
I agree that the “ad hoc” rule changes imposed by Democrat activists via judicial activism in the courts have enabled the ability to commit and hide massive fraud and may have determined the election’s outcome. However, I disagree that the election results declaring Biden-Harris the winner should be over-turned as it has not been legally proven that fraud determined the election result.
In this article, I will only be dealing with the Democrats opening “the door to fraud” in various states before the election by various “ad hoc” election rule changes that reduced or eliminated election fraud safeguards. I will not be making any comments on the allegations of actual fraud committed during the election (which would require at bare minimum a thorough review of all the court cases and associated evidence).
Biden’s chief virtue in this election was that he was not Donald Trump.
To set some context, though I was pulling for the Democrats to lose, I thought Trump would lose the election without “last-minute changes to longstanding election rules, “so I have no “skin in the game” in this respect. Like, Hilary Clinton, Trump’s unpresidential personality (watch the first 2020 Presidential debate if you can stomach it) created a large block of voters who would vote for an imaginary candidate to ensure Trump did not get elected.
For many Democrats and “Never Trump” Republicans, Biden was not an ideal candidate. Biden’s chief virtue in this election was that he was not Donald Trump. It is Donald Trump who made a non-entity as Joe Biden becoming President possible.
As I was picking, though not pulling for, Biden-Harris to win (I am not pro-Trump, as much as anti-Democrat), my issue in this article is not with the election outcome but with the means of achieving it.
Last-minute (“ad-hoc”) changes to long-standing elections rules decreased election integrity
One issue I have with the ad-hoc rule changes regarding the implementation of universal (as opposed to absentee) mail-in voting is that it permits ‘ballot harvesting’ that makes it near impossible to detect certain kinds of fraud.
What is to stop someone from creating ballots for those who do not vote, or creating ballots that had a different candidate selected and switching them in, or simply destroying ballots in between the point of voter drop off and receipt at the counting station? Recounting would not detect fraud of this kind.
In the case of creating fake ballots for mail-in voters, such fraud would not be detected unless a voter who was not expected to vote in person finds out that they had already voted by mail when they appear at the polling station on election day. To detect such fraud would require a year-long discovery investigation — and even then, it could come up inconclusive.
Last-minute (“ad-hoc”) changes were not justified because of the pandemic
Given Fauci’s declaration that in-person voting is as safe as going to the supermarket so long as one observes social distancing guidelines and wears a mask (and isn’t the Democrat party the party of masks?), the “because COVID” excuse for these changes is groundless. Such game-rigging brings up the aphorism: “Our ends are noble, therefore by any means necessary.”
The problem with the new “universal” vs. traditional “absentee” mail-in ballots: fewer safeguards against fraud
As John R. Lott pointed out (months before the election) in “Why Do Most Countries Ban Mail-In Ballots?: They Have Seen Massive Vote Fraud Problems “:
“Thirty-seven states have so far changed their mail-in voting procedures this year in response to the Coronavirus. Despite frequent claims that President Trump’s warning about vote fraud/voting buying with mail-in ballots is “baselessly” or “without evidence” about mail-in vote fraud, there are numerous examples of vote fraud and vote-buying with mail-in ballots in the United States and across the world. Indeed, concerns over vote fraud and vote buying with mail-in ballots causes the vast majority of countries to ban mail-in voting unless the citizen is living abroad.
“There are fraud problems with mail-in absentee ballots but the problems with universal mail-in ballots are much more significant. Still most countries ban even absentee ballots for people living in their countries.
“Most developed countries ban absentee ballots unless the citizen is living abroad or require Photo-IDs to obtain those ballots. Even higher percentages of European Union or other European countries ban absentee for in country voters. In addition, some countries that allow voting by mail for citizens living the country don’t allow it for everyone. For example, Japan and Poland have limited mail-in voting to those who have special certificates verifying that they are disabled.
“France has made an exception this year to the ban on absentee ballots to those who are sick or at particular risk during the Coronavirus pandemic. Poland and two cities in Russia have adopted mail-in ballots for elections this year only, but most countries haven’t changed their regulations.
“France banned absentee voting in 1975 because of massive fraud in Corsica, where postal ballots were stolen or bought and voters cast multiple votes.”
His entire paper is worth reading to understand the problems with universal mail-in ballots as presently implemented.
Kimberly Strassel also notes:
“…the beauty of ballot harvesting is that it is nearly impossible to prove fraud. How many harvesters offered to deliver votes, only to throw away inconvenient ones? How many voters were pushed or cajoled, or even paid–or had a ballot filled and returned for them without their knowledge? And this is before questions of what other mischief went on amid millions of mailed ballots (which went to wrong addresses or deceased people) and reduced voter verification rules.” [See Kimberley Strassel: The 2020 Election “Fix”.]
The “fraud” was in the rule changes that enabled mail-in voting without the proper checks and safeguards
How does the voter – or a third party – determine that a mail-in universal ballot was actually for the candidate the voter chose? Under the present set-up in the 2020 election, one cannot verify a valid result without letting the voter view his mail-in universal ballot and verifying its’ accuracy (assuming the ballot has not already been destroyed). No such mechanism (such as blockchain) was put in place to go along with the ad-hoc rule changes.
Such ad-hoc rules make the same criminal standard “onus of the proof” under in-person voting to show fraud inapplicable as the “fraud” was in the rule changes. Under such an arrangement with the greater potential of fraud built-in, the “burden of proof” for indicating fraud with universal ballots needs to be different from those used with in-person voting (and absentee balloting).
Most courts have applied the principle of standing or laches to dismiss such claims of fraud by Trump supporters without further investigation (on procedural and not substantiative grounds), though not without minority judge opposition. Laches is “the legal doctrine that an unreasonable delay in seeking a remedy for a legal right or claim will prevent it from being enforced or allowed if the delay has prejudiced the opposing party. The doctrine is an equitable defense that seeks to prevent ‘legal ambush’ from a party who is negligent in failing to timely make a claim.” Read a key Wisconsin election court case to understand how this was applied.
The chaos created by “last minute” election rule changes erodes public confidence
The ad-hoc election rule changes pushed on by Democrat activists, administrators, and judges using COVID as an excuse to conspire together against the will of elected state legislatures were unnecessary and have given Trump an avenue to claim the election was stolen from him.
Supreme Court Justice Gorsuch predicted such a contested outcome before the election:
“The Constitution provides that state legislatures—not federal judges, not state judges, not state governors, not other state officials—bear primary responsibility for setting election rules. Art. I, §4, cl. 1. And the Constitution provides a second layer of protection too. If state rules need revision, Congress is free to alter them. Ibid. (“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 . . .”). Nothing in our founding document contemplates the kind of judicial intervention that took place here, nor is there precedent for it in 230 years of this Court’s decisions.”
The clamor for judges to sweep in and address emergent problems, and the temptation for individual judges to fill the void of perceived inaction, can be great. But what sometimes seems like a fault in the constitutional design was a feature to the framers, a means of ensuring that any changes to the status quo will not be made hastily, without careful deliberation, extensive consultation, and social consensus. [See: U.S. Election 2020: Last Minute Rule Changes Responsible For Election Confusion, Chaos and Low Public Confidence in Results.]
Gorsuch presents additional arguments on why this was an inappropriate use of judicial activism to rewrite election law (see Tara Smith’s insightful editorial on the appropriate use of judicial activism). Continues Gorsuch:
“Last-minute changes to longstanding election rules risk other problems too, inviting confusion and chaos and eroding public confidence in electoral out-comes. No one doubts that conducting a national election amid a pandemic poses serious challenges. But none of that means individual judges may improvise with their own election rules in place of those the people’s representatives have adopted.”
One post-election Rasmussen poll indicated that “Sixty-two percent (62%) of Republicans say it’s Very Likely the Democrats stole the election, a view shared by 17% of Democrats and 28% of voters not affiliated with either major party.” Trump sycophants would naturally agree with Trump’s claims of election fraud, but I find it remarkable that in this poll, nearly 1 in 5 Democrats “think the Democrats stole the election.”
That is a considerable erosion of confidence.
Given that Biden-Harris won under such a “set up,” the 2020 Presidential election’s validity will always be questioned. This is unfortunate.
Restoring election confidence and integrity
I am not saying the election was stolen. I’m saying I don’t know as the appropriate “checks and balances” provided by “longstanding election rules” were removed in this election. As I wrote previously:
“The mass fraud did not happen on election day; it happened much before.
“The “fraud” or “fix” was in the rules of the game before the election even began.
“In an election based on objectively valid rules, the onus of the proof for election fraud requires one to produce positive evidence of fraud.
“But for an election based on invalid rules – which reward fraud and help hide it – does the same principle apply? Is objectivity in evaluating the results of an election with non-objective rules even possible? It is uncertain that the kind of investigations going on now can uncover that kind of fraud.”
To validate an election, one does not need to falsify all allegations of fraud merely; one needs to positively show that the mechanism in place has revealed the voter’s actual intent. The removal of many time-tested election safeguards in the 2020 election has cast doubt on that mechanism.
Congress should form an Election 2020 Investigation Commission
Given that many of the cases surrounding electoral irregularities were denied a substantial review by the courts and given a procedural dismissal, Congress should form an Election 2020 Investigation Commission to investigate the matter thoroughly.
Hopefully, in the future, if the U.S. continues to use “universal” mail in voting for elections, they need to implement the appropriate checks and safeguards to ensure election integrity and to restore confidence in American elections.
Congress should certify Biden-Harris as the Presidential election winners
I think the election results with Biden-Harris as the victor should be certified as the time to contest “ad hoc” election rules is before the election.
If Trump and the Republicans failed to accomplish this before the election, it is unfair to voters who acted in good faith and voted with mail-in ballots to have their votes repealed after the election. This was the reasoning behind dismissing his claims based on the grounds of standing or laches.  
Biden-Harris will be certified as the winner and will end up occupying the White-House, but it won’t be pretty. The stink over the election rule changes made by the Democrats will give Trump a “moral” victory that he would not have had if the Democrats left longstanding election rules in place and did not tinker with election rules allegedly “because of COVID.”
— Mark Da Cunha
Update (2021.01.07): Like other commentators, I was hoping Congress would peacefully certify Biden-Harris as the winners and also establish as a sign of good-will an Election 2020 Investigation Commission to give an outlet to those Americans who believe the 2020 election was stolen. Unfortunately, when I said “it won’t be pretty,” it became far worse than I thought, as an idea of a bi-partisan Election 2020 Commission was pushed aside as a mob of MAGA hat and flag-waving anarchists stormed the U.S. capitol, eliminating any “moral” sympathy for the Trump side.
Update (2021.01.11): Steve Hayward makes similar points in “They Stole It Fair And Square” at Powerline:
“The Democrats stole the election fair and square. Of course, I don’t mean that literally; what I mean is that the election was effectively stolen months ago before any ballots were cast when legislatures (and sometimes governors and state courts such Pennsylvania) changed the voting rules to allow expanded mail-in voting, and the cascade of related vulnerabilities that followed. Republican legislatures that went along with these COVID-induced panic changes were foolish if not derelict in their duty. And the Trump campaign was negligent in not fighting against this months ago. President Trump was correct to warn about this outcome. Why wasn’t his campaign better organized to resist this months ago? (I know they did file a few lawsuits, a few of which had some effect, but it wasn’t enough.) I suspect the long-rumored campaign infighting and attention to other things distracted Trump’s senior campaign managers from paying sufficient attention to this.
Fraud is very easy in our election system. Remember that our elections are run by part-timers, amateurs, and volunteers on the county level in America—and we have over 3,000 counties. In such a diffuse system it is easy to conjure up a few dozen votes here, a few hundred votes there. Or worse. It is at once a glory of self-government in America that we actually conduct our elections in this decentralized way involving tens of thousands of citizen volunteers. It is also astounding that we use such a vulnerable and chaotic system to choose our President.
“So the problem with vote fraud is that a remedy is difficult to apply. There aren’t good remedies. If a race is within a few hundred votes or less, a recount or ballot challenges can work to reverse the outcome, though not often. The plain fact is that once a fraudulent ballot is inside the ballot box and counted, it is very hard to get it back out of the box and un-counted. Fraudulent ballots need to be intercepted before they reach the ballot box. It is likely not possible to disqualify enough ballots to change the outcome in three states, which is what Trump would need. The statistical anomalies of this election are good circumstantial evidence of vote fraud, but exactly which ballots, or which vote totals, do you change, and how?
“No court is going to overturn an election result on circumstantial evidence and affidavits of incorrect polling place procedure alone. (I reserve judgment for the time being about the Dominion computer system question.) And the thorough fact-finding necessary for judicial intervention would take time that we haven’t got. This is why both the Constitution and most state election statutes make the legislatures the arbiters of presidential election results.”
(A “hat tip” for the above quote to Gus Van Horn also mentions possible voter fraud in the 2018 California election via “ballot harvesting.”)
 Ronald Pisaturo had pointed out to me in an email that “The Republican Party did bring a case to the Supreme Court before the election [regarding Pennsylvania], but the court declined to hear the case (in a 4-4 decision), evidently because there was not yet any harm done.” He also adds:
Regarding the decision by the Wisconsin Supreme Court, did you see this statement in the dissent by Annette Kingsland Ziegler, J. (¶133, p. 12)?:
“Under the majority’s new rule, a candidate will have to monitor all election-related guidance, actions, and decisions of not only the Wisconsin Elections Commission, but of the 1,850 municipal clerks who administer the election at the local level. And that is just in one state! Instead of persuading the people of Wisconsin through campaigning, the candidate must expend precious resources monitoring, challenging, and litigating any potential election-related issue hoping that a court might act on an issue that may very well not be ripe.”
I do think that the Republicans should have been better prepared. The. U.S. should have been better prepared at Pearl Harbor. But that does not mean that we forfeit our right to fight after the attack. The Democrats opened the door to fraud before the election. But they also committed fraud during the election. Both actions are heinous, and both should have been fought and still should be fought. This crisis is not about Trump. It is about an election being stolen. That is an attack on our nation. Many voters on both sides acted in good faith, and that good faith is being violated, not by voiding a corrupt election, but by accepting a corrupt election.
 This article does not cover other electoral irregularities that were denied a substantial review by a procedural dismissal by the courts. See some thoughts on detecting fraud here:
 Given the U.S. capitol riots during the certification of Biden as President – where much blame is for inciting them is based on Trump’s rhetoric post-election – Trump’s political career is over.
- Kimberley Strassel: The 2020 Election “Fix”
- U.S. Election 2020: Last-Minute Rule Changes Responsible For Election Confusion, Chaos, and Low Public Confidence in Results
- Fauci: No Reason People Cannot Vote in Person
- Objectivists and The 2020 U.S. Presidential Election
- John R. Lott: Why Do Most Countries Ban Mail-In Ballots?