The progressive Knight Foundation held a seminar for journalists on Wednesday going over election law in preparation for the upcoming election. It was one of several virtual conferences the organization has held recently, focusing this time on “debunking common election law myths.”
Speakers included Bob Bauer, who served as general counsel to the Democratic National Committee and in various positions for Barack Obama, and David Becker of The Center for Election Innovation & Research, who co-authored a book with journalist Major Garrett titled The Big Truth, arguing that the 2020 election was the most secure in American history.
The seminar began with opening remarks by the president of the American Bar Association, Bill Bay. He said, “These efforts reflect the close connections between journalists and legal professionals.” In Arizona, the mainstream media and State Bar of Arizona (SBA) have a close relationship. The editor of the SBA’s magazine, Tim Eigo, is also president of the Phoenix Society of Professional Journalists.
Bay added, “Our system of elections is among the safest, most secure and the most accurate in the world.”
The discussion began analyzing the breaking decision by the Supreme Court in Virginia, which upheld an injunction backing the state removing 1,600 noncitizens from the voter rolls. Becker admitted, “It’s unusual, because the Supreme Court in the past has been a lot more circumspect about injecting into pre- and post-election litigation unless it was absolutely necessary. … This is the first time we’ve seen the Supreme Court get involved in this immediate period right before the election.”
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, said he was “surprised” at the ruling. He said normally the courts refuse to get involved in elections immediately prior due to the “Purcell principle.”
According to SCOTUSBlog, the Purcell principle is the presumption that “courts should not change election rules during the period of time just prior to an election because doing so could confuse voters and create problems for officials administering the election.”
Ginsberg predicted, “It simply does telegraph that the issue of noncitizen voters on the rolls will be part of post-election [challenges] if it’s a close election.”
Becker downplayed the significance, claiming that the numbers of noncitizens on voter rolls are “exceedingly small” so “I think I would suggest we should look skeptically at claims post-election brought by a losing candidate … when those claims could have been brought earlier.”
Moderator Margaret Talev, a journalist who writes articles like “Voters see Walz as more authentic than Vance,” and who made a name for herself asking about J6, “Why are a segment of Americans so upset with the process that they’re willing to resort to violence or willing to believe conspiracy theories?” asked the panelists which state had myths that should be refuted.
Ginsberg said in Arizona, there’s “the red wave, and the red mirage, and the blue wave,” explaining that although Republicans will appear to be winning at first on election night, it will evaporate and the Democrats will end up winning due to the timing of counting ballots.
Becker insisted it’s a myth that ballots used to be counted faster in the past. “We’ve never counted ballots on election night,” he said. “We’ve never been able to do that. It’s always taken a long time.” However, he provided no evidence of any previous drawn out elections.
He also claimed, “It’s just that margins are much narrower now than they used to be, and so there were enough ballots to be able to call the race earlier in the period of time after the polls closed than there is now.” Again, however, he provided no evidence of how or why margins are allegedly narrower now.
Bauer urged, “Please, please journalists, turn your attention to what the election officials themselves return to tell you [instead of] what appears on social media.” He said there is only “one truly reliable source of information, and that’s the election officials.”
He emphasized the fact that attempts to delay or reject certification of the election didn’t work previously in 2020 due to the courts, assuring journalists that it would likely not be an issue again. It was decided “quite decisively in the state of Georgia in particular,” he noted.
Bauer diminished the significance of a recent ruling by the Fifth Circuit Court of Appeals, which held that the state could not accept late ballots. He said, “It will obviously not affect the presidential election, because we know precisely what the outcome of Mississippi is going to be,” and pointed out that Republicans have not brought it up in a similar court case in Nevada, where a court ruled the opposite.
Ginsberg reinforced Bauer’s opinion about certification. “Certification is not a winning strategy, and it’s [incoherent] a great deal why anyone thinks it would be. First of all, it’s never worked. It’s crystal clear in every state law that it’s a mandatory action, not discretionary.” Ginsberg did not address the significant body of constitutional legal experts who have concluded that historically, the role of the vice president in certifying the election is discretionary.
He said that the reason some officials have chosen not to certify the results is because they “don’t like the presidential results.” He claimed that if it happens, other races on the ballot won’t get certified either, which could hurt congressional seats for Republicans.
Bauer repeated Ginsberg’s claim about certification, “Experienced election officials have been vocal on both sides of the aisle that certification is mandatory.” He said that lawsuits after the election cannot request decertification. “That’s not the point in the process at which that is done.” He acknowledged that he took sides on the issue. “So I do think we’re better prepared on this issue, just because it’s come up so early and has been tested successfully so legally.”
Becker cited the prosecution of two Cochise County officials by Arizona Attorney General Kris Mayes for attempting to delay canvassing of the 2022 election due to their concerns about election improprieties. “There are county officials who are under indictment in Arizona for refusing to do their duty that they’ve sworn an oath to do with certifying the election.”
A member of the audience asked the panel how to debunk claims that “the number of voters is exceeding the amount of voter registration in a place like Maricopa County.”
Becker responded, “This is a general theme, and I think you’ll hear these kinds of citizen activists out there who’ve been enraged by election outcomes they don’t like.” He said their concerns will be due to “misinterpretation” so “we should just all be very, very skeptical of any of those claims.”
He claimed that elections are very secure, “We’ve been doing this for 250 years,” he said. “Election officials have somehow managed the highest turnout in American history in the middle of a global pandemic, and their work has withstood more scrutiny than any election in world history. … Those processes are secure, and I think we should be very skeptical of those claims, especially when they’re coming from and being amplified by losing candidates.”
Ginsberg emphasized that election officials are “your most trusted sources” due to their “granular knowledge of all the safeguards in the system, all the checks and balances.”
Bauer added, “We are also going to see not just conspiracy theorizing by people inclined to believe for political reasons, partisan reasons, whatever, whatever they want to believe about some plan being asked to subvert the outcome of the election.”
Becker said that claims of “vote flipping” used to come from the Democrats. He dismissed the claims. “To my knowledge, there has never been a case documented in any way of a machine actually flipping a vote from a candidate that was clearly pressed to a different candidate,” he said. “It is, in every case, been shown to be some kind of calibration issue on machines. But much more usually, user error, which is understandable.”
Ginsberg reinforced Becker’s opinion that voting machine tabulators aren’t changing votes, since journalists can observe testing on the machines before and after elections, and there are “observers from both parties and accuracy tests” and a “post-election audit.”
Becker attacked X owner Elon Musk, who has stopped the censorship of concerns about election fraud on the platform. “Debunking the disinformation that’s flowing is done in such a way that it’s a fire hose, and now a social media platform by someone who has gained the algorithms to make it even worse,” he said. Becker singled out Pennsylvania, “I’m seeing Pennsylvania. It seems to be a big epicenter for it right now, already with the disinformation that’s flowing out of that state.”
During a previous seminar in September, the panel focused on dismissing anticipated concerns about election fraud.
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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 “Heather Gerkin” by Yale Law School; “Bob Bauer by NYU; and “Ben Ginsberg” is by Hoover Institute.
