The presidential election was close. Only 84 Electoral College votes separated the contenders. Widespread allegations of ballot fraud were claimed by national party chairmen in 11 states, with court challenges lasting into the middle of the year following the election. Changing the results in just two states would flip the election.
The fraud allegations were serious, including dead people voting and votes far in excess of registered voters in some counties. Yet partisan election boards quickly certified the results while local judges, loyal to the political machines that installed them, threw out legal challenges. Eventually, 650 people were charged with election fraud, but only three were convicted, all given short sentences.
No, this isn’t a story about 2020. It’s a story of 1960. U.S. Sen. John F. Kennedy defeated two-term Vice President Richard Nixon in the 1960 presidential election by 303 to 219 electoral votes (with 15 ballots going to Sen. Harry F. Byrd). Nixon “lost” Illinois by 8,858 votes and Texas by 46,257. Had those two narrow losses been overturned, Nixon would have won and America might not have fought and lost the Vietnam War.
Since 1960, a myth has grown up around Nixon: that as a statesman, he decided not to challenge the results so as not to divide the nation. Even so, the Republican National Committee contested the results in the courts until mid-1961.
It was more likely that Nixon knew there was no practical path to overturning the results, clear evidence of fraud or not. That Nixon played the statesman was a convenient myth for all parties involved.
IT WASN’T JUST 1960 OR 2020
The election of 1876 was even more contentious, with Congress exercising its constitutional role as an arbiter of competing electoral slates sent by the states. Then, as now, the national climate was unsettled. The victorious North was weary of maintaining a standing army in the South.
In the years after the Civil War, some 1,500 black office holders, most recently freed slaves, were elected or appointed, mostly in the South. They held federal and state offices in all 11 of the states that constituted the core of the Confederacy. President Grant won reelection in 1872, prevailing in all but three of the 11 states of the old Confederacy—Georgia, Tennessee, and Texas—with the votes of black Republicans.
But four years later, as federal troops were being drawn down, the Ku Klux Klan emerged as a terrorist tool of the Democratic Party, driving black Republicans out of office and voters away from the polls. When combined with poll taxes that charged the equivalent of about $20 for the right to vote, literacy tests, and official intimidation, large numbers of black Republicans were prevented from voting.
There was still a viable Republican Party apparatus in Florida, Louisiana, and South Carolina to claim victory, although the Democrats also forwarded competing slates of electors backed by a Democrat winning the governorship in Florida, with two disputed gubernatorial elections in Louisiana and South Carolina that saw the Democratic candidates installed after the presidential electors were assigned to Rutherford B. Hayes.
In the end, rather than risk losing a messy battle over the competing electoral slates, Republicans struck a devil’s bargain, formally agreeing to end Reconstruction in exchange for the presidency. Mechanically, the constitutional crisis was resolved through a bipartisan Electoral Commission, as the Constitution is silent on exactly how Electoral College disputes should be settled.
This constitutional silence appears to be a major oversight. The Founders, skeptical of politicians wielding power at the expense of the people’s liberty, set up a system of divided government—three national, co-equal branches along with the states—in a federal system.
Given that most of the Founders’ concern over the erosion of liberty was aimed at the national government, there was little direction given over how the electors were to be selected beyond three paragraphs in Article II, Section 1. Simply put, these paragraphs specify that state legislatures determine the manner of the electors’ appointment and that Congress determines both the election day and the day the electors vote.
Absent in this process is any sort of a check on the states. What if a state’s electoral system is corrupted? What if big city or regional political machines shift the election outcome, as was alleged in 1960 and 1876?
COURTS WON’T DO IT, THAT’S FOR SURE
The courts have proven to be a notoriously ineffective check against election fraud. Prior to an election, when much of the advance work needed to cheat is accomplished, the courts will generally find a lack of standing, as no harm has yet been done. After a corrupted election, courts will shrug and say the point is moot—the election is already over. As with impeachment, the question appears to be political.
Two relevant lawsuits in the 2020 contest illustrate this principle. Texas filed a lawsuit challenging the election results in Georgia, Pennsylvania, Michigan, and Wisconsin as being tainted by sidestepping state election laws. The U.S. Supreme Court threw out the case, merely stating that, “Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections.”
The second lawsuit was brought in Pennsylvania, where it was contended that a statute, 2019’s Act 77, allowing a huge expansion in mail-in voting, violated the state’s constitution. After the state supreme court rejected the argument more on process than substance, the U.S. Supreme Court refused to hear the case.
This leads to a pressing concern. How can illegalities reasonably be proved in the 79 days from Election Day to Inauguration Day—or, more urgently, the 35 days to Dec. 8, the “Safe Harbor” deadline for resolving any controversies over electors and electoral votes? Proving election-changing fraud in a mere five weeks, typically in the face of a state political apparatus that is loath to admit error or fraud or, worse yet, was an active participant in it, is difficult at best and, in a practical sense, impossible.
THERE ARE TYPICALLY TWO OPTIONS
With courts unwilling to accept cases, the typical processes to validate an election come down to two means: recounts and audits. Recounts will, in most cases, simply recount any fraudulent votes and, on occasion, uncover genuine errors or simple attempts at cheating by transposing election returns, hiding ballot boxes, or counting some precincts twice. Audits, routinely done in many states, are a tool to validate that computerized machine counts match with any sort of paper backup the system may use.
Neither audits nor recounts will uncover traditional types of fraud such as aggressive harvesting of mail-in ballots, including from the deceased, those living under a guardianship due to mental incapacity, or people subject to pressure or inducements, such as small amounts of cash or access to a food pantry run by those connected to the local political machine.
We know that election fraud does occur in America, contrary to the repeated claims by Democrats and their allies in corporate and social media. In 2020, in New Jersey’s third-largest city, Paterson, new municipal elections were ordered after massive and systemic vote-by-mail fraud was uncovered. A councilman, councilman-elect, and two others were charged with voting fraud. Also, in 2020 in nearby Philadelphia, former Democratic congressman Michael “Ozzie” Myers was charged with ballot-box stuffing over three years of elections, 2014, 2015, and 2016 by conspiring with and bribing a judge of elections.
We all saw the alarming and suspicious behavior of elections officials in Philadelphia, Atlanta, Phoenix, Las Vegas, and other areas where election observers were blocked or held back so far they were unable to monitor the counting, or were told to go home as counting was done for the night. COVID-19 also provided the excuse that people who stood in line to grocery shop could also not safely stand in line to vote—thus necessitating what was, in many swing states, a massive expansion in by-mail voting with a concurrent relaxing of safeguards, such as signature matching, designed to minimize fraud.
The opportunities for systemic cheating had never been greater in 60 years. The relevant legal question is, was it enough to change the election results? The practical question is, could election-changing fraud be proven in only 35 days?
POLITICAL MACHINES USE THEIR POWER TO WIN
Imagine if a well-placed elections official in Philadelphia came forward and admitted to significant election fraud and provided corroborating evidence. Would the Pennsylvania Supreme Court, a Democrat-majority body thoroughly in the thrall of partisan politics, have acted? Would the Democrat governor or Democrat secretary of state have acted?
The legislature might have acted, but any electoral slate they put forward would have been superseded by the slate certified by the governor. Congress might have acted, but, at best, would have deadlocked, meaning the governor’s certified slate would prevail.
The aftermath of the 2020 election finds the nation unsettled, with legitimate concerns about election fraud overshadowed by the capitol riot and kooky conspiracy theories, such as the tale that U.S. Special Forces were killed in an operation to seize election-related computer servers operated by the CIA in Germany, where the agency was working to change votes from Donald Trump to Joe Biden.
The original source of the rumor was said to be a tweet in German. The translated tweet was rapidly picked up and circulated by QAnon, an informal grouping of conspiracy theorists. It’s probable the tweet was crafted by Russian or Chinese intelligence services with the express intent to increase distrust in U.S. institutions. At the very least, the unfounded rumor distracted from real efforts to uncover and prove election fraud.
Regarding the reprehensible riot at the Capitol on Jan. 6: had the declared election winner been reversed, there’s no doubt the scale of the violence would have been far greater, while the media and elites would have supported it, as they did over last summer’s long season of discontent.
HR 1 has been reintroduced in the U.S. House. 2019’s version passed the House and never received a vote in the Senate. It seeks to cement Democrat dominance of national elections by instituting a national voter registration program, making Election Day a federal holiday, requiring prepaid postage for mail-in ballots, criminalizing some forms of political speech, removing the power to redistrict from state legislatures, and eliminating the ability of state officials to maintain accurate and up-to-date voter lists.
Winning elections with fraud may be easy enough, but governing a people with vanishing trust in the system will be increasingly difficult. The nation would benefit from a thorough and honest review of the 2020 election—but it almost surely won’t happen.
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This article first appeared in The Federalist on January 12, 2021 and is reproduced with permission.
