Being a legal analyst often makes you a killjoy at a party. As millions broke out in celebration over the calling of the election for Joe Biden (including most of my immediate family), I watched with a mix of shared excitement and silent apprehension. It does appear that Biden won this election and his speech last night was the perfect pitch and message for a divided nation. However, there are still legal challenges being filed in a half dozen, new affidavits containing troubling sworn allegations, and relatively close state contests. As someone who has covered presidential elections for networks going back to 2000, those challenges are like live torpedoes in the water – you do not know if one could actually hit below the water line. The issue for legal analysts is that, with the tabulations still occurring, there is little ability to judge allegations of voting irregularities.
We still do not know if there is evidence of systemic fraud or irregularities. Indeed, I am getting the feeling that the Trump campaign does not know. Thus far, the Trump legal team has not submitted hard evidence as opposed to heated allegations.
However, as millions celebrate at what they believe is the finish line, the greatest danger is a Rosie Ruiz election.
Forty years ago, Ruiz became an infamous figure when she was declared the winner of the 84th Boston Marathon in 1980 as the fastest woman. After all, she was seen crossing the finish line before any other woman. The problem was that eight days later, she was found to have crossed the finish line by way of the subway.
The difference between the Boston Marathon and the presidential election is that the latter is designed to avoid a short-cut president-elect. First there is tabulating of ballots, followed by the canvassing of ballots, and then certification of the results. Challenges can continue through the certification stage that should end on December 8th.
There is a certain Rosie Ruiz strategy that is used in elections, particularly in orchestrating a splashy finish and a victorious celebration.
That was the case in 1960 with the election of John F. Kennedy. Many historians believe that Kennedy actually lost the race to Richard Nixon. Instead he was declared the winner with 49.80% of the popular vote. Widespread voting fraud was reported in Illinois and Texas that put Kennedy over the top.
Much of those allegations were hashed out after the media declared Kennedy the winner and the campaign set the narrative with celebrations and transition announcements.
After Bush led in Florida by only 1,784, his campaign rushed him out for a victory lap to create the image of the presumptive president elect. Thus, when the Democrats challenged the results and filed a flurry of lawsuits demanding recounts, they were viewed as fighting to reverse the will of the voters in seeking to strike ballots. The recount led to a change of only roughly 900 votes before, 41 days later, the election was effectively ended by the Supreme Court in Bush v. Gore.
What happened next is often overlooked. Multiple studies found that Gore likely won Florida. However, by that time, George Bush was already sworn in as the 43rd President of the United States. The point is clear. The important thing is not whether you were in fact victorious but whether you were victorious when you passed the line of certification.
Nevertheless, Mayor Kenney was demanding a concession “just as Al Gore did.” In reality, Gore did challenge that election and forced a recount that lasted 41 days. It turned out that the recount may not have identified the true vote count.
To the credit of Joe Biden, he showed admirable restraint in claiming victory. The question is whether he will now show even greater leadership in supporting a full and open review of key state races.
For its part, the Trump legal team will have to ramp up its game. Thus far, there has been a lack of focus and discipline . . . and a notable lack of real evidence. On Friday, a challenge in federal court in Las Vegas fizzled out for lack of such evidence in front of a clearly exasperated federal judge.
In fairness to the Trump campaign, it is difficult to produce evidence if you have not been allowed access to balloting or key records. Moreover, there is some skepticism over claims that this election was effectively flawless, even in cities with long and checkered histories with voting irregularities. We have never had an election based on such massive numbers of mail-in balloting and there are obvious concerns over authentication of ballots. The primary concern is not that tabulation workers are filling out ballots or burning ballots. Rather the concern is how mail-in ballots were sent out, authenticated, and processed. There are many accounts of people receiving multiple ballots, groups filling out ballots on behalf of voters, and even some cases of votes filed for deceased individuals.
In truth, the current allegations are more difficult to track than those in 2000. The Florida recount was largely mechanical and obvious. You had a bizarre “Butterfly ballot” and hanging chads on punch voting cards. The 2020 election involves questions of the authentication of ballots and calibration of tabulation equipment. If such standards are set too low, there would be virtually no instances of irregularity because the threshold standards are too low. We simply do not know and would not know until there is greater access to information.
All elections have such problems even without the use of tens of millions of mail-in ballots. The question is whether such irregularities are systemic or merely episodic. The current margins in states like Pennsylvania are not likely to be overcome by aggregating small pockets of challenged ballots.
The Democrats have sought to ignore recounts or judicial review, the opposite position taken in 2000. The concern is that we still have had no meaningful access to the underlying evidence and, while the odds are not high, it is still possible that challenges could find traction in the courts. If there proves to be a real problem in a key state, the massive celebrations could change in character dramatically.
Again, there is currently no evidence of systemic fraud in the election but there is ample reason to conduct reviews. Biden himself should tell the Democratic Party to support such scrutiny and transparency now that the initial tabulations are being completed. That is not easy for any politician, but it would be the ultimate presidential act by the presumptive president-elect. Biden is no Rosie Ruiz. Biden has shown a respect for the process and this was a hard fought victory. He can cross the line without mass transportive assistance. This is the way to show it.