Jonathan Turley: America should welcome review for close counts
Just when you thought the 2020 election could not be any more bizarre, a hearing in Las Vegas over the challenges of the Trump campaign went full Monty Python. After days of charges of fraud, we are finally at that “bring out your dead” moment from Monty Python and the Holy Grail. The Trump campaign continues to say that some ballots have been “cast on behalf of deceased voters” as well as thousands of ineligible voters in Nevada, and federal judge Andrew Gordon demanded the names. When no evidence was provided, Gordon refused to intervene last night.
In the movie, two men try to toss a protesting old man on a death cart in the Black Plague. When the driver insists the man is not dead, the thugs insist “he will be soon” and ask him to “hang around.” But after trying to convince the driver to wait, they club him and throw him on the pile. As shown by Gordon, when it comes to elections, judges do not just “hang around.” You bring out your dead or your case is dead.
So if the Trump campaign is premature in claiming a deceased electorate, the Biden campaign is premature in claiming Donald Trump is deceased in the race. House Speaker Nancy Pelosi has referred to him in the past tense and Joe Biden as president elect. Philadelphia Mayor Jim Kenney called on the president to “put his big boy pants on” and concede like Al Gore even after local officials said they were still counting votes.
Kenney appeared to have blocked out any memory for the 2000 election, when Gore challenged the results and fueled that intense battle. Trump is simply doing what Gore did. With George Bush leading in Florida by under 1,800 votes, his campaign sent him on a victory lap to create the image of president elect. When Democrats challenged the results and filed lawsuits demanding recounts, they were viewed as fighting the will of the people. A close recount led to a change of around 900 votes before the election was sent to the books with the Supreme Court ruling.
Multiple studies found that Gore likely won Florida, but Bush was already sworn in as president. Democrats said that Bush was illegitimate and that the Supreme Court should not have ended the recount. Often the case in our politics, both parties are now in different sides of the same issue. The consistent element is that both parties support the process to the extent that it is demonstrably in their favor. Trump appears to trust the process when he is ahead but views any deficiency for votes as fraudulent, while Democrats want all votes included but not recounted.
We are finishing only the second of four stages for the election. After the voting stage, states entered the tabulation stage. We will soon begin the canvass stage, in which local districts confirm their counts and can face challenges or recounts. Finally, there is the certification stage, for which final challenges can be raised. Trump is not deceased just yet. Biden has reason to claim a lead as the odds are heavily against Trump. One or two states could flip on a Hail Mary challenge. But Trump needs four of those to win in a feat that would hyperventilate Aaron Rogers.
Yet the public should welcome close scrutiny of such swing states. There are valid reasons to examine the figures based on the unknowns in a new kind of election. The outcome will be determined by millions of absentee ballots for various states, some of which have never used such a degree, and legitimate concerns were raised before the election.
States also used rolls that are out of date and inaccurate. Some changed rules that govern signature authentication or are accused of reducing the discrimination levels for machine authentication. With Nevada, the Trump campaign alleged that thousands of votes were cast from out of state and ballots were sent to dead voters. But we cannot judge the merits of these claims until we see some evidence. It is hard to see the problems without more access to the ballots and the records of tabulation.
Just as some of us remain skeptical of these claims of fraud, it appears as implausible that this untested form of voting was used across the country without major glitches. Officials in cities like Detroit and Philadelphia with histories of election violations said that the counts of mailed ballots were almost flawless, a claim difficult to rebut without review.
We need a review of counts in critical states to resolve the crisis of faith. A recent survey found that nearly half of all Americans lack confidence their ballots will be counted fairly. A Harvard study also found that under half of young black voters believe that their ballots are even counted. This lack of faith in the electoral process has been fueled by the shift to mailed ballots but builds on increasing distrust of our political system.
Past elections had controversies in faithless electors who switched their votes. The Supreme Court dealt with a number of such faithless electors during the 2016 election and resolved that states can force them to cast their votes in line with the wishes of voters. But this could be the year of faithless voters rather than faithless electors. We lost faith in our political system. Our leaders fueled doubts as Trump said the election was stolen, Democrats accused him of the same with his challenges, and Pelosi has denounced Justice Amy Coney Barrett as illegitimate.
We do not listen to each other anymore. We need neither concessions of defeat nor declarations of victory. We need transparency so that whoever is the next president can lead with legitimacy. It is why the involvement of the courts is not bad. If nothing else, the judge can decline to hold a post mortem on a living candidate on the same grounds of the driver who said, “I cannot take him like this. It is against regulations.”
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.