The “Big Lie” Exposed and the True Threat to “Democracy”

Undoubtedly, the 2020 general election was contentious.  But so are most general elections.

For example, Al Gore repeatedly claimed that the 2000 election was “stolen” by George W. Bush.  Hillary Clinton continues to claim that the 2016 election was “stolen” by Donald Trump.

But not until recent times has a political party (the Democratic Party) sought to weaponize the courts and the legal process to punish those who question an election.

Unfortunately, a dangerous precedent has been set, and it is unclear how this will turn out.

Typically, what is good for the goose is good for the gander.  Should Republicans prevail in the next general election and the losers seek to challenge various aspects of the election, claiming that it was illegitimate (which history shows is inevitable), the precedent has been set to unleash the power of federal, state, and county law enforcement officials to target political opponents with burdensome and costly criminal indictments and for politically-motivated litigants to pursue civil lawsuits for similar reasons.

This dangerous practice must stop.  Using the power of government to attack political opponents who question elections is the biggest threat to our constitutional republic (yes, we have a constitutional republic and not simply a “democracy”).  It is not the questioning itself.

To be clear, the 2020 election was not as pristine as the Democratic Party and its national media propaganda machine would like the public to think.

For example, in Michigan, Donald Trump lost by a mere 154,188 votes.  This is a fraction of the vote when you consider the fact that there were approximately 3 million absentee ballots alone (the most in Michigan history).  Consequently, Trump only lost by approximately 5% of the absentee ballots.

This is a critically important fact because Michigan Secretary of State Jocelyn Benson’s guidance on how these absentee ballots should be treated—she directed the clerks “to presume that signatures are valid”—was declared unlawful.  See Genetski v. Benson, 2021 Mich. Ct. Cl. LEXIS 3, *12, 19 (March 9, 2021) (“[T]he standards issued by defendant Benson on October 6, 2020, with respect to signature-matching requirements amounted to a ‘rule’ that should have been promulgated in accordance with the APA.  And absent compliance with the APA, the ‘rule’ is invalid.”).

But that court decision was issued too late to do anything to remedy the unlawful guidance or to prevent its adverse impact on the election.

This is particularly problematic as the courts have long held that mail-in ballots are exceedingly susceptible to fraud (and the Democratic Party knows this).

As the Commission on Federal Election Reform—a bipartisan commission chaired by former President Jimmy Carter and former Secretary of State James A. Baker III and cited extensively by the United States Supreme Court—observed, “the ‘electoral system cannot inspire public confidence if no safeguards exist to deter or detect fraud or to confirm the identity of voters.’”  Building Confidence in U.S. Election, Report of the Commission on Federal Election Reform at 46 (Sept. 2005).

According to the Carter-Baker Report, mail-in voting is “the largest source of potential voter fraud.”  Report at 46.

Many well-regarded commissions and groups of diverse political affiliation agree that “when election fraud occurs, it usually arises from absentee ballots.”  Michael T. Morley, Election Emergency Redlines at 2 (Mar. 31, 2020).  Such fraud is easier to commit and harder to detect.

As one federal court put it, “absentee voting is to voting in person as a take-home exam is to a proctored one.”  Griffin v. Roupas, 385 F.3d 1128, 1131 (7th Cir. 2004); see also id. at 1130-31 (voting fraud is a “serious problem” and is “facilitated by absentee voting”).

Accordingly, courts have repeatedly found that mail-in ballots are particularly susceptible to fraud.  As Justice Stevens noted, “flagrant examples of [voter] fraud . . . have been documented throughout this Nation’s history by respected historians and journalists,” and “the risk of voter fraud” is “real” and “could affect the outcome of a close election.”  Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 195-96 (2008) (plurality op of Stevens, J) (collecting examples).

Similarly, Justice Souter observed that mail-in voting is “less reliable” than in-person voting.  Id. at 212, n.4 (Souter, J., dissenting) (“‘[E]lection officials routinely reject absentee ballots on suspicion of forgery.’”); id. at 225 (“[A]bsentee-ballot fraud . . . is a documented problem in Indiana.”); see also Veasey v. Abbott, 830 F3d 216, 239, 256 (Fifth Cir. 2016) (en banc) (“[M]ail-in ballot fraud is a significant threat”—so much so that “the potential and reality of fraud is much greater in the mail-in ballot context than with in-person voting.”); see also id. at 263 (“[M]ail-in voting . . . is far more vulnerable to fraud.”); id (recognizing “the far more prevalent issue of fraudulent absentee ballots”).

We will never know the true impact of Secretary Benson’s unlawful guidance on the 2020 election.

Moreover, in Johnson v. Secretary of State, 506 Mich. 975, 951 N.W.2d 310 (2020), a case in which the American Freedom Law Center was one of the law firms representing the petitioners, the Michigan Supreme Court denied a petition for an extraordinary writ that sought an independent audit of the votes in the 2020 election.  Secretary Benson vigorously opposed our request.

The petition ultimately failed by a vote of 4 to 3 (hardly a decisive victory for the Secretary).  In his dissent, Justice Viviano stated, in relevant part, the following:

For the second time in recent weeks, individuals involved in last month’s election have asked this Court to order an audit of the election results under Const 1963, art 2, § 4. . . .  As in that case, petitioners here allege that election officials engaged in fraudulent and improper conduct in administering the election.  In support of these claims, petitioners have submitted hundreds of pages of affidavits and expert reports detailing the alleged improprieties.  Here, as in Costantino, I would grant leave to appeal so we can determine the nature and scope of the constitutional right to an election audit.  After all, “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Marbury v Madison, 5 US (1 Cranch) 137, 177 (1803).  But I write separately to highlight the lack of clarity in our law regarding the procedure to adjudicate claims of fraud in the election of presidential electors.

Johnson, 506 Mich. at 984-85, 951 N.W.2d at 319 (Viviano, J., dissenting) (emphasis added).

The bottom line is that this constant refrain from the Democratic Party (and its national media echo chamber) that there is “no evidence” of election malfeasance in the 2020 election is demonstrably false.

Indeed, the “Big Lie” that Democrats keep shouting is, in fact, a big lie.

Make no mistake, the greatest threat to our “democracy” is not challenging elections—which we have a right to do.  Rather, it is this coordinated campaign by the Democratic Party to use the instruments of government to attack political opponents and to silence free speech.

Undoubtedly, the purpose of this strategy is to chill those who might raise concerns about the conduct of an election.

Indeed, we are witnessing this strategy playout across the nation, including here in Michigan, where Oakland County law enforcement officials are investigating and potentially seeking criminal charges against Andrew Hess, who simply asserted during a recent ballot recount and after he found ballot bags with broken seals and no chain of custody that cheating on elections is “treason.”

The head of elections for the county apparently felt intimated or threatened by Hess’s speech, which is protected by the First Amendment.  A complaint was made against Hess, prompting law enforcement to commence a criminal investigation.  We are representing Hess in this matter.

At the end of the day, “democracy” will not survive unless we stop this frontal attack on the First Amendment.