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Hi,
Did you really think the 2020 presidential election would be definitively settled on Election Day? If this year has taught us anything, it’s that nothing’s easy, and nothing’s simple, and uncertainty is one of the prime constants of the human condition. As a country, we’re now used to being able to push a button and have anything from furniture to fine dining delivered to us more or less immediately. No matter how many times we hit refresh, the satisfaction of closure on the presidential election remains elusive, and may well for some considerable time. On top of it all, 2020 now requires patience among an impatient, frayed and exhausted American people.
I don’t know whether Biden or Trump is going to win, and by the time you read this, my opinion may well have changed anyway. Rather than digging through incomplete election results this morning, I’d instead like to propose to you, dear reader, a methodology for processing the claims of election irregularities that we are hearing from both sides, and will hear a lot more of in the days or (gasp) weeks or months to come.
1.Our default assumption should be that votes are being and have been counted pursuant to the law.
Allow me a brief story? Back in Spring 2018, my client and now Oregon State Representative Jack Zika was involved in an automatic recount in the Republican primary. On election night the race was really, really close, and from then on I was aware of every single ballot that was being counted and adjudicated. I was there as our county clerk and her staff scrutinized every last ballot with even the most remote possibility of irregularity. I was in the room as 20 or so diligent folks recounted, by hand, each and every ballot, double and triple checking each. Both sides of the race were ready, willing and able to challenge anything that went wrong. But no one did, because the process went impeccably. Jack ended up winning by two votes.
I’m open to the idea that Nancy Blankenship, the Deschutes County Clerk, is unusually good at her job, because she is very good at her job, but my point is that in a close race everything, and I mean every single ballot, is scrutinized not just by election staff but by representatives of both candidates. This does not mean that fraud cannot occur, but it does mean that people with a vested interest and, in the case of a presidential election, unlimited resources and motivation to contest a voting process are involved in that process. That significantly reduces the likelihood of widespread fraud.
2. Generalized allegations of voter fraud or election irregularities without specific examples should be greeted with skepticism.
Because each campaign has the ability to identify, challenge and publicize specific instances of alleged fraud or other irregularities in the vote count, we should require them to do so. General allegations of irregularities unsupported by specifics, including, critically, the number of votes in question, serve only to confuse voters and obfuscate the proper legal process that will, eventually, deliver closure.
3. Lawsuits are good and necessary (says the lawyer).
Everyone, or almost everyone, agrees that every vote should count. But in a close race, the fine line questions of what actually constitutes a vote, and which is relevant only for a tiny number of ballots, become paramount. Questions like, if a voter left a tiny pencil dot in the middle of a bubble next to a candidate’s name, did the voter intend to vote for that candidate, or was she merely resting her pencil as she considered, and then rejected the possibility? These are questions that can best be answered based upon state and federal law, and lawsuits are the way you resolve these questions. They are a necessary part of deciding a close election fairly and pursuant to the law. Think hanging chads in 2000. Whatever you think of that outcome, but for the myriad lawsuits filed by the Bush and Gore campaigns, we’d still be in the streets fighting about who won.
Also, if someone thinks there has been fraud, they should file a lawsuit so that the allegation can be tested and adjudicated. We should pay more attention to any such lawsuits, and their outcome, more than the rhetoric of the campaigns.
Undoubtedly, whichever party is ahead in whatever state that ultimately decides this thing is going to scream bloody murder when the other party files a lawsuit to affect the outcome. The best way to reach finality, and critically a finality that at least most of the electorate believes is reached via the established legal process for determining elections, is to allow the lawsuits to run their course, albeit on an expedited basis.
4. The goal is finality.
We all have our preferences for who wins, but the more important thing is that we achieve a final, legally binding result. We have an incredibly extensive system of laws, from the U.S. Constitution to federal statutes to state constitutions to state statutes to local ordinances to centuries of case law all intended to guide us to a final outcome. That system has not yet failed us, and adherence to it is of paramount importance for the preservation of our country as we know it, and I’m not exaggerating. We should denounce any effort by either campaign or its partisans to upset the legal process through force.
It sucks that I felt I had to write that last sentence. If, however, we keep our collective wits about us, we will get through this and on to whatever the next thing is 2020 has in store for us.
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Jeff Eager
jeff@oregonroundup.com
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What I do:
EagerLaw PC – A business and real property law firm in Bend, Oregon.
Insite LGA Corp. – A campaign consulting, strategic communications and local government monitoring firm.
Waste Alert – Local government monitoring for the solid waste and recycling industry.