The progressive Knight Foundation conducted a seminar last week to educate journalists about election law for the upcoming 2024 general election. Co-sponsored with the American Bar Association’s Task Force for American Democracy, the speakers consisted of election fraud deniers, including activists like David Becker of The Center for Election Innovation & Research. Most of the discussion focused on dismissing concerns about election fraud, telling the journalists what to believe instead of going over the actual law.
The speakers repeatedly emphasized that U.S. elections are very secure and that concerns about election fraud arise because Republicans don’t like losing, so they “lie” about fraud and bring lawsuits to “incite anger and potentially violence.” They said the law is well established at this point, so the election must be certified afterward. They ridiculed the “fraud suppression industrial complex” and claimed bipartisan teams were adjudicating elections.
The speakers repeatedly said that the vice president does not have the authority to reject certifying a presidential election, although the disbarment trial of former President Donald Trump’s former attorney and constitutional scholar John Eastman brought out testimony from experts like Berkeley constitutional law professor John Yoo, who has written about historical situations where the vice president did exercise substantive authority in this area. They said it was “deeply disturbing” that state legislatures are passing laws to take more authority over elections.
Dean Heather Gerken of Yale Law School, who clerked for former leftist Supreme Court Justice David Souter and worked as a senior advisor to former President Barack Obama and on his reelection team, opened the panel, setting the tone for the seminar.
“So the first thing is just it’s so easy to make the jump to thinking that there’s something malicious going on, something partisan going on, when you’re just sort of seeing the regular rough and tumble of the way elections work on a year to year basis,” she said. “The second thing that I want to really emphasize, and I know our experts are going to talk about that, though, is that the system has a bunch of safety and fail safes in place.”
Attorney Ben Ginsberg, who wrote an article for The Washington Post in 2020 criticizing Trump for stating there was election fraud, a follow-up piece shortly after saying that election fraud concerns were destroying the Republican Party, and testified before the Democrats’ January 6 Committee, bragged about the election safeguards in place as “so involved, so complex, that we can’t even try to touch on them all.” He advised journalists, “The real experts who you need to develop are the election officials.”
Bob Bauer, who served as general counsel to the Democratic National Committee and in various positions for Obama, stated, “We have the operation of state laws, federal laws, and, frankly, also best practices in various jurisdictions, any number of ways that we have arrived with a very happy place, although one wouldn’t know it from the rhetoric that by and large ineligible voters are screened out.”
Becker, who co-authored a book with journalist Major Garrett titled The Big Truth, which argued that the 2020 election was the most secure in American history, declared, “Every aspect of election administration, from voter registration to vote counting to casting a ballot to certification, is bipartisan. It’s transparent and it’s professional. Every single stage of the process is bipartisan and transparent. … that prevent any significant fraud from occurring.”
He did not address the multiple instances around the country in which laws requiring bipartisan participation on election boards and in other capacities were broken in the 2020 election.
He said, “That’s why we know all of us who’ve worked in elections for a long time, that our elections right now are as secure and verifiable as they’ve ever been, and it’s not really particularly close.” He said that losing candidates “lie” about fraud. “So we should be very proud of our election system and cognizant of the fact that it may be that losing candidates will lie about that election system if if they don’t want to accept the results, but that the facts don’t support their allegations that they have legitimate claims in really close elections, and Ben and Bob knows this better than anyone else.”
Becker said the vice president has no choice but to certify the election. “Certification is non-discretionary, at least currently,” he said. “There’s some attempts to change that, but it’s non-discretionary. And I think one of the things that often gets leveraged by those who may spread false claims about an election after they’ve lost is to leverage perceived differences in the states, when in fact, while specific methods of doing these things might differ between the states overall, the same things are true in all of the states with regard to how our elections are run.”
Becker criticized lawsuits brought currently challenging election wrongdoing.
“So I think one of the first questions people, especially journalists, should ask, especially when lawsuits are filed, is, why now? Why are you bringing this to the courts now?” he said. “So, for instance, if you don’t like what the known certification regime is in a state, or you don’t like the day allowed mail ballots, you may be able to bring a case when that law is put into place or months before an election, but if you wait until you lose to see whether you’ve lost, you don’t have any reason to complain.”
He singled out the lawsuits being brought over noncitizens voting.
“You know the rules going into it, and by the rules are set, and we’re seeing that play out in some way right now, for instance, with the claims of noncitizen voting whether, whether or not it’s an issue. It isn’t. We know it isn’t. We know that noncitizens on the voter rolls and voting comprised a negligible, near zero amount total,” the activist said.
Becker claimed that Republicans failed to produce any evidence in their election lawsuits.
“Very importantly, courts are going to — and I’m confident in this, because they did this in 2020 — they’re going to hold litigants to evidentiary standards. You can’t litigate these cases and make claims on social media and expect to get a court to rule in your favor if you don’t have evidence. And we are now 46 months, I think, almost exactly since the 2020 election, we’ve had well over 60 cases challenging in that election right after, we’ve had defamation claims against people who lied about the election where they could have raised as an absolute defense that they were telling the truth, and there is still not a shred of evidence that it presents to any court anywhere in the country that calls into question the outcome of the 2020 election,” he said.
He said that Fox News settled a defamation lawsuit from Dominion Voting Systems “rather than have to present evidence about the truth of their claims.” However, a lawyer familiar with the case told The Arizona Sun Times that Fox News settled because the judge made it clear, addressing the motions for summary judgment, that the jury would be given instructions to treat statements that Rudy Giuliani and Sidney Powell had made as false.
Ginsberg spent time criticizing attempts to question certification of the election, citing his previous experience as a “Republican lawyer” for emphasis. “It has never worked in every instance the courts — both Trump appointees and Obama appointees and everybody else in between — have agreed that it is not discretionary, that it is a mandatory action of election officials.”
He ignored the top constitutional scholars like Eastman and Yoo, as well as Republican officials like former Arizona Republican Party Chair Kelli Ward, who have differing opinions. Trump’s vice presidential running mate, JD Vance, recently stated that he would have advised disputed states to submit alternate slates of electors in the 2020 election.
Becker critiqued complaints about election fraud.
“I think one of the biggest myths that both sides use is they try to chin up their faces and raise money off claims of widespread fraud or widespread vote suppression, and we know that votes don’t occur. We know that voter fraud is extremely rare. It’s one of the easiest crimes to catch. When it is caught, it is investigated and prosecuted, the states do remarkable jobs of that. And we also know that while there have been attempts by legislators to suppress votes, those efforts largely fail,” he said.
He didn’t mention cases where judges have stated that voter fraud is difficult to detect. In two 2020 election cases, Iowa District Court Judge Ian K. Thornhill found that the mere possibility of fraud was enough to grant an injunction stopping an illegal action by an election official.
“While the Defendants claim that voter fraud with absentee ballots is almost nonexistent, it is also the type of fraud that is almost impossible to detect,” the activist said. Thornhill struck down actions taken immediately before the election by two county auditors regarding early ballots.
At the same time, Becker acknowledged, “It is right now easier to vote in the United States than it has ever been in American history. It’s easier to get registered than ever before.”
He said it was “false” to tell voters they might experience problems like long lines when voting on Election Day. He didn’t mention the long lines hundreds of thousands of mostly Republican voters encountered on Election Day in Maricopa County in 2022. Arizona State Representative Justin Heap (R-Mesa), who won the primary election in July, defeating incumbent election fraud denier Stephen Richer, ran on a platform that emphasized stopping the disenfranchisement of those 300,000 Republicans. Courts have often overturned elections where voters faced long lines.
Bauer said elections now are “more secure, more professionally managed than ever before. There is no question, but the degree of the degree of resilience and the structural protections that are currently in place are very, very strong, and both Republican and Democratic election officials will attest to that around the country, the ones who’ve done it the longest, who have the most experience, who are the most professional in their approach.”
He continued to criticize concerns about election fraud, “if it’s done in a way that ultimately promotes a false view of the system, it doesn’t serve the voters, and it is extraordinarily unfair to the election officials who work so hard and in terms of myth busting.”
Ginsberg added, “And I think what Bob said is absolutely important, David, about the fraud suppression industrial complex.” He warned about early results coming in on Election Day showing Trump ahead, that get people worked up if he falls behind later.
Ginsberg defended the problem of huge numbers of Democrats versus Republicans working at the polls, blaming the Republican Party.
“But the ability to put poll workers of your party in a polling place rests with the party, so that’s not administrators, unless there’s something gone wrong, in which case you’ve got the litigation,” the lawyer said.
Also, Bauer said there weren’t any problems facing election observers.
“I have not heard of a single allegation that a party attempted to take advantage of a legal right to have an observer and was thwarted by the intention. … I’m not aware of a lawsuit that was required then to force an election official to accept the observers that could be appointed pursuant to the relevant state law. There have been lawsuits filed about poll worker parity, but, but that’s just because the suit’s been filed doesn’t mean it’s meritorious,” he said.
He ignored the numerous complaints around the country that the Republican Party was unable to place observers at polling locations or forced to place them in locations where they could not see anything.
The speakers directed journalists to official government sites and to election officials for further guidance. Bauer reassured journalists that when a judge doesn’t allow something into evidence, that evidence is meaningless. “You’ve got to report when a lawsuit is filed,” he said. “But a lawsuit being filed, or the volume of evidence that’s attached to a pleading, or the number of affidavits, means literally zero until that evidence has been scrutinized.”
He told journalists that the lawsuits where judges don’t accept evidence are brought to “incite anger and potentially violence.
He said, “I think, don’t look like the kinds of lawsuits you would find if you did a search in the legal records for Ben Ginsberg or Bob Bauer, those cases that were really litigated over evidence and where there were both sides were well represented by counsel and allowed their evidence to be scrutinized by courts, but are cases for political reasons and publicity reasons to stoke up the base, importantly, to raise money and to and to incite anger and potentially violence.”
Becker criticized local Republican officials who go against the grain.
“There may be some rare act of instances where people are hired to run elections who are not qualified, regardless of their politics. Shasta County, California is a great example of that, where someone who literally has no experience running elections has been has been hired by a highly partisan county board to oversee a presidential election for his first major election after that same county board basically harassed the existing person out of office someone who’s been working there for two decades as a professional,” he said.
Alex Haberbush, the counsel of record for Eastman who was involved in litigation over an election in Shasta County, told The Sun Times regarding the official who was pushed out, “Joanna Francescut, Shasta’s Deputy Registrar of Voters at the time, testified in court that the Elections Office violated California law regarding ballot name placement for ten offices during the March 5 election. She further admitted to multiple other procedural and technical violations, attributing them to her failure to properly train and supervise her staff. Notably, Francescut was absent from the office on the day these violations occurred, attending a ‘training seminar’ instead. Perhaps it would be more prudent to have a Registrar of Voters who prioritizes hands-on oversight of staff over seeking reassurances that the election process is already sound.”
Ginsberg admitted that “35 percent of the country doubting the veracity of elections is a really troublesome place to be.”
Becker responded, “I’m about as confident as I can be, despite all of the efforts that could occur, all of the machinations, all of the lies that might occur between November 5 and January 20, that the person [who] actually wins the election is going to have their hand on the Bible on January. The thresholds are higher now, I think they will still be raised by some of Congress who will seek to disenfranchise entire states. What I am very concerned about, however, is that those who oppose democracy have been organizing for four years. They have been organizing all across the country, particularly in smaller, rural, redder counties, where there are hundreds of activists who have been abusing and harassing and in some cases threatening election officials for four years.”
He said, “They will be incited to anger. They will be incited to donate, and they may be incited to violence. And I’m not just worried that violence could occur in one place at one deaf time, like the Capitol on January 6, but it could occur in counties all over the country at various points in time. … I think their account that a candidate is likely to proven that he’s willing to incite that kind of anger and violence.”
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Rachel Alexander is a reporter at The Arizona Sun Times and The Star News Network. Follow Rachel on X/Twitter. Email tips to [email protected].
Photo “Stop the Steal Rally” by Chad Davis. CC BY-SA 2.0.
