For months, President Trump and his supporters have contended that the 2020 presidential election would be tainted by widespread election fraud. More recently, the President’s lawyers have filed several lawsuits alleging election fraud and Attorney General Barr has directed federal prosecutors to investigate allegations of election fraud. Of course, the President’s opponents have raised the expected outcry that the lawsuits are meritless and that the power of the Justice Department is being abused for partisan purposes.
My purpose here is not to pick sides in the debate about who should be our next President. I can, however, apply my experience in litigating complex cases for more than three decades to evaluate the obstacles facing the investigators. Ultimately, I have concluded that the investigators face insurmountable obstacles and that the current furor will likely prove to be much ado about very little. Let me explain.
The challenges confronting investigators attempting to prove a material fraud are daunting for several reasons. Ultimately, the investigators can change the outcome of the election if they can prove material fraud—i.e., one which would change the vote count by more than the current margins. Because of the current vote counts, the investigators would need to establish frauds involving tens of thousands of ballots in at least four different states—misconduct which goes far beyond the usual election shenanigans. The largely anecdotal evidence presented to date does not implicate more than isolated handfuls of ballots. Time will make it increasingly difficult to develop or uncover evidence of even larger issues. Finally, the investigations will become largely moot unless the investigators prove their case before Inauguration Day—roughly two months from now.
The contrast to the Bush v. Gore scenario is telling. That case ultimately turned on the treatment of a few hundred votes in a single state. There was little dispute regarding the facts concerning the challenged ballots (e.g., the hanging chads). Instead, the dispute involved the legal conclusions to be drawn from those hanging chads. The entire case could largely be decided based upon that single question. Establishing material fraud in the 2020 election—proving facts supporting a finding of fraud in several different states would be an infinitely more difficult enterprise.
The investigators face huge challenges in mustering the essential skilled staff. Successful fraud investigations require a large collection of skilled lawyers and investigators. If the investigation was run privately, its supporters would need to assemble legal talent with extensive knowledge of election law and the methods for building an election fraud case—expertise typically not found in law firms which specializing in legal issues confronted in commercial disputes. It would not help much if the investigation were run by the Justice Department; its limited expertise in election law would be found in the Voting Rights Section of the Department’s Civil Rights Division—a unit which has likely become an underfunded backwater staffed by lesser talent in this administration. Even if Justice re-assigned career prosecutors from other components of the Department to staff an investigation in the short term, those lawyers would confront a steep learning curve and would soon need to return to their regular duties.
Both privately-funded and Justice Department investigations would quickly run out of resources. Pursuit of investigations involving multiple allegations of misconduct occurring in different locations is notoriously complex and labor intensive. The availability of volunteer unpaid staff for a massive long-term investigation would be limited. (Even lawyers have mortgages to pay.) As a result, any supporters of the investigation would need to commit many millions of dollars to fund the investigation and the willingness of potential donors to pay for the investigation would rapidly evaporate after Inauguration Day. Even if Attorney General Barr was willing to devote Justice Department staff and funding to an investigation, his successors would be far less willing to similarly prioritize an investigation of the election which put them into office.
Even this cynic believes that the integrity of the legal system will prevail. After all these years, I still believe that the system generally works pretty well. For many sound practical and prudential reasons, the law strongly disfavors judicial reversal of election results. That precedent recognizes that judicial involvement in deciding elections is inconsistent with the American system of democracy, except in extreme situations. Yes, many judges have conservative roots, but they have spent long careers recognizing the rule of law and the limited role of the judiciary. They would be disinclined to set aside those fundamental principles and to open the door for exhaustive recurring litigation of past elections in the courts. I have seen some interesting judicial behavior over the years, but I still believe that the vast majority of judges are not active partisans and that they honestly try to apply the law to the facts. Apologies for my naïve, youthful optimism, but I do not believe that the judicial system will case aside those established principles here.
In sum, my conclusion is that none of the current investigations will bear fruit. Most of the chatter about election fraud investigations will slowly dissipate over the next few weeks and, after Inauguration Day, will only be discussed by the people who also believe in the presence of black helicopters. Relax, wear your mask, pour yourself a drink this evening, and look forward to a better 2021.