By C. A. “Kip” Crofts
Former U.S. Attorney for Wyoming
President Donald Trump and his supporters proclaimed loudly in the months leading up to the 2020 election that the election would be “rigged” and there would be widespread fraud.
Then, after Nov. 3, he said that he really won the election. This, along with some specific statements he made just before a violent mob attacked our Capitol, has led to his impeachment for incitement of that mob.
On the other hand, the corporate media and half the people in America have insisted the election was fair and just, and that Trump and his supporters are lying. I have not counted, but I’d guess the word “false” or “falsely” has been inserted in thousands of media comments just before they told us what Trump had said about the election.
When I studied journalism many years ago, I learned that unless I’d been assigned to write on the opinion page, I should keep judgmental adjectives and adverbs out of my story and just report the facts. Apparently, the teaching in J schools has changed since then, because every writer wanted us all to be sure we knew what he thought of President Trump’s assertions.
I would guess that everyone in America over the age of six now has a firmly fixed opinion about this. They either agree with President Trump that there was fraud and without it he’d have been re-elected, or they believe he is lying.
So, which is right?
What really happened?
I don’t think we know. As someone who has been involved in the criminal court system for many years, I’m used to having to meet a burden of proof beyond a reasonable doubt, so maybe my standards are too high. But I think in something this important, the questions of who is going to be President and whether an election was stolen, we should know what we’re talking about and not be just asserting what we wish were true.
Everybody knows that politicians aren’t always careful with the truth. Trump is a showman and knew that something said loudly, repeatedly, and with gusto might not be questioned too closely, at least by people who wanted to believe it. (“Mexico will pay for the beautiful wall!”).
But Joe Biden, albeit in a softer voice, does the same thing. Maybe it’s a harmless gaffe (“I’m running for the U.S. Senate”) or a big whopper (his gross exaggeration of his educational record or his statement that the stories about his son and China were just Russian disinformation). He dropped out of a presidential race once after he was caught plagiarizing. So, none of us, Republican or Democrat, should just assume that our guy is telling the truth and the other is not.
We can’t always rely upon the modern media to let us know what is to be believed either. They used to be called the “Fourth Estate” or even the Fourth Branch of Government and I think there was a time when they took that neutral role seriously. But they didn’t even try to hide their bias in this case – they hated Trump and liked Biden, ignoring or downplaying all of Biden’s stretches of the truth while highlighting Trump’s.
There was a time that investigative journalists would work hard to dig out the truth about something, but now they seem to prefer to just quote anonymous sources or make statements without any source at all. It’s easier and cheaper than real investigative reporting. They attack people for saying something “without evidence” when everything reported in the press now is “without evidence” for the most part.
I wonder if, now that Trump is gone, the “mainstream media” can go back to its traditional role as the neutral and fair arbiter of politics in the US — or has it fundamentally lost its way, only to continue as the unofficial media outlet of the liberal wing of the Democratic Party? I hope they find their way, but am not optimistic.
So, my point is we cannot simply accept the word of Trump, Biden, or the press on this terribly important issue. The howling mob that invaded our Capitol was not justified in doing so even if Trump was right that the election was “rigged” and he won. That would be no defense to what the invaders did.
But still as a nation, I think we need and deserve to know, “the truth, the whole truth, and nothing but the truth.” It may be essential to calm the troubled waters and try to move on. But if we find the election was rigged, that could lead to more trouble. I think it’s unlikely that will happen, but it could. We just simply do not know.
Loud accusations of election fraud have been hurled during many past elections, but eventually the fuss dies down and we just wait for the next one. Since the assertion this time resulted in a violent attack upon Congress, perhaps it is time to get to the bottom of the argument.
If there is no large amount of fraud (there will always be some) then we should say so and move on. If we find significant problems we should say so publicly and fix them before the next election.
I know that the winners, the Democrats, would prefer to just slam the door on this controversy and move on. But I’m not sure they can, and I’m sure they should not. If we do that it will leave a festering wound in the body politic that will continue to fuel outrage and perhaps more violence. And if there were problems and we ignore them, it will encourage more of the same in the next election, and soon we will join those countries in the world who pretend to have elections and go through the motions, but everyone knows they are neither free nor fair.
Why don’t we know for sure what the truth is, and what can we do to figure it out before we are again faced with a situation like this?
First inkling of trouble
When I was young, I didn’t think too much about voting and elections – I just took them for granted and assumed they were done effectively and lawfully. I loved JFK and was proud to cast my first vote for him. I first began to have serious questions about American elections when I worked for the Division of Criminal Investigation in the Wyoming Attorney General’s office.
I think it was in the early 1980’s that we were asked to investigate a case of “election fraud.” As we all know, when you show up at your polling place, you are greeted by a table of workers, usually volunteers, who ask your name. If they verify that the name you give is on the list of registered voters, you are given a ballot and allowed to vote. Sounds simple – right? And it is if everyone is honest and truthful.
In this case a man had walked in and said a name. The election worker replied, “You are not (the name he gave). I knew him. He died last year.” The man immediately turned around and left. The election worker was able to give a general description of the man who tried to vote, but it would fit many people and there was no surveillance camera, so we really couldn’t do anything to identify who he was and the investigation went nowhere. He had been prevented from voting, so no real harm was done. Or was it?
That was only one vote, of course, and would not have changed election results – at least not in state or national races. But in local races in sparsely populated Wyoming, a few such people willing to vote improperly could make a difference. And I think any such fraudulent intrusion into our sacred system should be concerning to all of us. This experience started me thinking about how vulnerable this system was to fraud. If the man had chosen another election worker who did not happen to know the deceased voter, the imposter would have been allowed to vote, and no one would ever have known.
It occurred to me then that this simple system, based on the assumption that all voters were honest, was not a very good one, even back then when things were generally more honest in our country. The analogy is not perfect, but what if we had a law that required all banks to open their lobbies to the public every four years, and to have bank employees sitting there with computer printout lists of all the banks’ depositors, like the poll workers who sit with lists of registered voters.
The public would be allowed to come in and give a name and if the clerk found that name on the depositor list, he or she would then be required to give the person all the money on deposit in the bank for that name, without regard or inquiry as to whether he was entitled to it. Perhaps the person had found your bank statement blowing in the wind on trash day, and knew you had an account in that bank. There would be no requirement for production of a photo ID, and in some states the law would actually prohibit the request for an ID.
So, what did I learn from this that bears on the pending question about the 2020 election? We hear all the time from many sources a statement that sounds like this: “There are no reports of voter fraud. There are no investigations of voter fraud. No one is convicted of voter fraud. So therefore, there must not be any voter fraud.” That statement is meaningless nonsense.
Some crimes, like murder for example, tend to be self-reporting, or obvious, as when a dead body is found. Most frauds are not evident. They depend upon stealth and trickery. That is the whole point. To detect and prosecute this crime, it requires an aggressive and proactive investigation – to find that a crime occurred and who did it. That almost never happens with elections.
Fraud prevention
One obvious lesson is that it is better to have procedures in place to prevent, or at least detect fraud, rather than to rely upon investigations after the fact. And as with money fraud, where the money is often long gone by the time the fraud is detected, it is impossible to “fix” election fraud after the fact. In the little case I saw in Wyoming, if the man had been allowed to vote, and we’d caught him, would we be able to rely upon the word of a man willing to commit fraud to tell us honestly who he’d voted for, so we could subtract that one vote from the total?
In my more than 40 years in the criminal justice system, as a county judge, as director of the Wyoming Division of Criminal Investigation, as a federal prosecutor, and then as U.S. Attorney, that one case is the only one I can recall ever being reported concerning election fraud. Do I think that is because voting is always honest in Wyoming, and no one tries to game the system? No – those 40 years have made me a bit cynical.
I think that if any system concerning something of value to people — whether it be banking, credit cards, unemployment benefits, taxation, or voting — can be fooled, someone can and will figure out a way to do it. And if they are good at concealing what they’ve done, no one will be able to report it.
Unfortunately voting is an “once in a while” occurrence. It requires many people to put it all together, public employees and volunteers who are engaged in a huge project every few years. I think almost always they are honest people. but even an honest person cannot make a poorly designed process work properly. It’s like management of money, whether in banks or in gaming casinos — procedures must be in place to check and double-check, and no one person should have exclusive control of everything.
This is particularly true when there is a lot of cash, where no paper trail will be left. Votes/ballots are like cash. Once the ballot is allowed into the system there is no way to track it and withdraw bad ones after the fact. After the election, as with the 2020 presidential election, there may be a few grumblings, but no one has the resources or the inclination to perform a total audit to see if it was fair. Mostly, people go back to what they were doing and just wait for the next election.
And people charged with conducting elections are generally elected, perhaps making it unlikely they will be motivated to do an audit that might reveal that they failed to conduct a free and fair election. Law enforcement agencies have other things to do. They will react to a specific report, as we did that one time, but they won’t go out looking for fraud unless someone gives them that assignment and makes it a priority.
People place great stock in the pronouncement by Attorney General Bill Barr that his Department of Justice saw no widespread fraud in 2020. All the time I was in the U.S. Attorney’s office we were required during election season to appoint a prosecutor to react to reports of election fraud.
But as I’ve explained, the people who had committed the fraud were not inclined to report it, and no one else could because they didn’t know about it. And no one is usually proactively looking. So, AG Barr’s comment is essentially meaningless — all it means is he emailed the U.S. Attorneys across the country, and they all said, “Nobody reported anything here, boss.” So that pronouncement, coming from the Attorney General, sounds like the end of the discussion, and is constantly cited by those trying to put an end to questions, but it really means almost nothing as we look for “the whole truth” of this matter.
Courts not the place for resolution
Part of the basis for those arguing the election was just fine is that there have been numerous lawsuits filed across the country by Trump’s agents and no judge anywhere has found any significant fraud. Once again, I think it is misleading to read too much into that. Courts are not the places to resolve this, despite President Trump’s assertions that they would. No judge is going to want to wade into this political controversy if he can avoid it.
Courts are charged to resolve specific and finite “cases or controversies” between people or parties. It is not their job to establish political policy for elections. So usually before the election courts will say that speculation about allegedly poor election procedures that have been adopted by a state will not be ruled upon just because they may theoretically cause problems in the future. And after the election there is too short a time for anyone to conduct an adequate investigation of all of it in time to gather sufficient evidence to convince a judge that the whole election was fraudulent and must be overturned.
There is no time for anyone, even if they had the resources and the authority, to conduct a thorough investigation to see if the election had sufficient problems to justify a drastic remedy like ordering a new election.
Judges need to be told even if they see problems what an appropriate remedy might be. No judge is going to order a completely new election just because he hears a few anecdotes of bad procedures that are a tiny fraction of the whole number of votes cast. He would have to order the state to fix all the procedural defects and then conduct a new election in a short period of time because there is no practical way to parse out the votes that might have been bad, that might have been affected by the problems the judge has been shown, and decide how to adjust the reported totals.
Even if he ordered the state to fix the problems and hold a new election, no state could actually do that in the time allowed. How likely is it that any judge is going to order such a remedy even if he agrees that problems with some small percentage of the total votes cast have been proven?
And I think the chances that some judge, based on that small sample of proven problems, is going to issue an order that reverses the findings of the election — declaring Trump to be the winner without a new election — are exactly zero. No reasonable person would ever think they should do that. No lawyer who knows how courts work would consider that to be a likely outcome and could with credibility advise his client that it might happen.
I cannot imagine any lawyer advising President Trump that might happen. And it turned out to be a terrible tragedy that many people besides Trump apparently believed that was actually going to happen if they made enough noise. I’m a registered Democrat but, likely because I subscribe to a conservative magazine, I was getting four or five emails a day asking for donations to support those lawsuits. It sounds to me like there might have been a bit of fraud there — like asking for money to help turn coal into gold. I was still getting those requests after the Congress voted to accept the election. I wonder what happened to all that money? But unfortunately, enough smoke — allegations and some facts that likely were true — leaked out of these lawsuits to give just a bit of credibility to the claims of Trump and others that there were problems with the election, and that fanned the fire of controversy and eventually led to the assault on the Capitol by people who really believed the election was stolen. But in addition to the people in the mob that stormed the Capitol, I think there are reasonable citizens, who would never join such a mob, who also heard the stories of what seem to be problems with the election coming out of those states, and who are concerned and would like to learn the whole truth.
President Trump is not a lawyer, has not worked in government, and seems to be incredibly naive about how things really work in government and in the courts. He may have honestly believed what he was saying, and, unfortunately, his 600-pound ego may have prevented him from listening to more reasonable people, if any were left on his staff by then. Whipping people up into a frenzy was what he was good at — what he always did at his rallies. But even if he did not intend to send his followers to commit violence at the Capitol, he should have been smart enough to realize what they might do in response to his words.
We are told there have been recounts, and manual counts to verify voting machine tallies and it is said those prove the election was legitimate. That may be an accurate measure of how well the machines work, or how accurately the original count was made, but it says nothing about whether or not fraud or mistakes have occurred in the process that controls who gets to vote — before the tally, manual or machine-made ever occurs. It cannot tell us if dead people, non-residents, non-citizens, people in comas, or others not qualified to vote, for whatever reason, have been allowed to cast ballots.
The statements by the Homeland Security official who said there was no hacking are, for the same reason, useful, but not dispositive of the entire question. He knew nothing about who had been allowed to vote in the normal way. All he really claimed to know was that no foreign power had hacked into the machines to alter the count. Unfortunately, he, and some others, when a microphone was pushed in their face, and, disliking Trump, made what sounded like far-reaching pronouncements that the entire election was valid when they actually did not know that to be true.
Complete Examination Needed
What we need is a complete examination of the entire process. Someone needs to go, especially to the battleground states, wherever the vote was close, and audit the entire election. They need to get a list of everyone who voted and then they need to go out and do the necessary field work to verify that each voter exists and was qualified to vote.
I suspect most would be fine. But I also suspect you’d find a significant number, which would vary from one jurisdiction to another depending upon procedures in place, where fraud, or at least mistakes, had been made. You would find dead people who had voted. You would find people who had voted twice. You would find addresses for the voter that were vacant lots, empty buildings, or just places where the person was not known, You would find nursing homes where the voter was in a coma or otherwise incapable of voting.
In places that allow others to collect votes (vote “harvesting”) you may find situations where someone showed up and collected a large number of ballots that may or may not have been completed. Nursing homes, retirement homes, public housing, and large apartment buildings – anywhere mail is delivered not to each door but to a central mail room — would be especially susceptible to fraud in this manner. If someone shows up at such a place and says he’s there from the election office to collect all ballots, he likely will not be challenged. And then he is free to fill out blank ballots and discard completed ones that don’t vote the way he wants.
Some states mailed out huge numbers of ballots to people on old and outdated registration lists, having no idea if the person was still a qualified voter, still alive, still in the jurisdiction. I assume many of those ballots ended up lying around in various places, just as junk mail does, but in this case, there would be a huge incentive for someone to collect that junk and use it.
You might find voters who were homeless and hear stories about someone who came and paid $10 for completed or blank ballots. There were stories in the news about voters being paid with gift cards to vote, and you’d have to be naive to think the person making the payment did not also strongly suggest for whom the vote should be cast.
I think they’d also find votes that, while not intentionally fraudulent perhaps, were certainly questionable, and that procedures intended to make voting “easier” because of the pandemic created the path for fraud or mistake. There were news reports in at least one state that when mailed-in ballots were defective, perhaps lacking a signature, date or some other procedural thing required by state law, the voter would be called and allowed to come in to “correct” the ballot so it could be counted.
On its face that seems innocuous enough and certainly well-intentioned to make voting easier during the pandemic, but it isn’t fair. What if there were 10 such defective ballots and only three people could be reached by phone before the ballot had to be discarded or counted? Is it fair to allow some, but not all, to correct their ballots after they are cast? And if the person who determined the ballot was defective learned in that process for whom the person tried to vote, isn’t that a huge invitation for fraud – to only call the voters you agreed with to invite them to come in and correct the ballot and to not call the voters whose vote you didn’t like?
There is a huge difference between the long-standing absentee ballot process, where limited numbers of qualified voters are allowed to specifically request that a ballot be sent to them by mail, and the pandemic-inspired practice of mailing ballots to everyone included on what are too often old registration lists where no effort is made to keep them up to date.
So, what if a person on the registration list has moved out of state, but left a forwarding address at the Post Office, and thus receives a ballot in the mail? The person may not have even thought about going back to his former residence to vote unlawfully, but if he gets a ballot in the mail and it takes him 10 minutes to fill it out and mail it back, he may think, “They sent me a ballot, so it must be legal. Why not send it in?” That process — mass mailing — was well-intended, but was a huge invitation for fraud in my opinion, and to that extent at least I think President Trump was right in warning the process could be abused.
At the very least we need to make sure those procedures are not allowed to take root and become regular aspects of voting in the future unless some means can be devised to verify what happens. Perhaps a means could be found to submit the chip information from a Real ID Act drivers’ license with the ballot to verify it. We have an 18th Century voting system that simply isn’t up to the challenges of modern life.
Ironically it may be that President Trump guaranteed his own defeat by telling his supporters, truthfully enough, that mail ballot procedures were not fair, thus discouraging them from voting that way. I wonder how many Trump supporters may have voted for him by mail but were discouraged from doing so by his loud and frequent statements against the system and then did not to the voting place, for whatever reason, on election day to vote in person?
Audit a huge undertaking
It would be a huge and expensive undertaking to honestly audit the election, and it may be necessary to confine it to just a representative sample of voters large enough to statistically guarantee reliability. Who would do such a thing and who would pay for it? Obviously, we need to try to achieve objectivity if any truly unbiased entity could be found in America today. Elections are primarily a state responsibility but obviously the Congress has an interest in elections for president. So, there would be a mix of state and federal law involved in those aspects of the investigation that were criminal, and the state’s election office would be involved in the procedural questions. There was a day when some honest news entity might have done such an investigation, so they could have claimed Trump was lying about a rigged election “with credible evidence” rather than just repeating the party line. But journalists don’t seem to do that anymore. They, just like Trump, loudly proclaim what they believe, or hope is true, and leave it at that. If they cite any source at all it is just another like-minded publication, perhaps an “anonymous official” or just an official-sounding person who really can’t know “the whole truth.”
After the debacle of the 2000 election, with the images of election workers examining “hanging chads” with magnifying glasses, we had a commission, chaired by former President Jimmy Carter and James Baker, a Republican official in the Reagan and George H.W. Bush administrations, that embarked upon an examination of voting procedures. They made a number of recommendations.
One was to improve voter registration lists, with procedures to keep them accurate and up-to-date, purging the dead, people who had moved away, etc. And most significant was a recommendation that a photo ID be required to vote, and that steps be made to insure everyone qualified to vote could easily get one.
After 9/11, because the hijackers who flew into the Twin Towers and the Pentagon had obtained drivers’ licenses that allowed them to board the planes — from a state that freely issued them, without question or verification, to anyone who asked — Congress passed the “Real ID Act” that required states to take steps to verify identifying data before issuing a drivers’ license. That is the sort of ID that should be required.
Sadly, no one paid much attention to the recommendations they made, and many bitterly opposed requiring a photo ID to vote, saying such a restriction was voter suppression. That is a false argument. It is voter suppression only if the government makes it hard for a legitimate citizen to get the ID. States should ensure that it is easy, and free if needed by some citizens, for them to obtain a valid ID card. They can use it for other common purposes – like boarding airplanes and cashing checks.
Remember my silly analogy above about the free-money-day banks might be required to hold? Do you really think banks would actually disburse money without verifying identity? Isn’t honest voting, the bedrock of our democracy, at least that important?
Some election officials say a photo ID is not required because election workers verify voters by comparing signatures. I think that is mostly another meaningless statement that may make some people feel good, but that cannot withstand examination of the reality.
When I was Director of DCI, we worked for about two years to get one of our Crime Lab people certified as a handwriting examiner who could testify in court in forgery cases. He underwent many weeks of training at the FBI lab, and was ultimately tested by having to achieve a perfect score in correctly sorting a large number of known handwriting exemples, some of which were correct and some that were not. To suggest that some lay person who works in the voting office, or a citizen volunteer, can accurately verify ballots by quickly looking at a signature strains credulity to say the least.
What results?
What do I think will be the result of an honest examination of the election? I may be the only person in the U.S. who is willing to say that I really don’t know. Everyone else seems to have made up their minds one way or the other. I suspect such an audit would find way more errors and fraud than we should have in this important part of our democracy. But, and I emphasize that I have no way of knowing for sure — I suspect we won’t find enough fraud to have changed the outcome of the election for president.
We had a bizarre set of circumstances this time. COVID gave many reasons to encourage mail balloting, which obviously, even if it was the hated Trump who said it, does make for more opportunity for fraud and error. But neither he nor the people who opposed him have any way to truthfully say whether the problems were significant enough to have made a difference, and his assertions otherwise are likely wrong — but we still need to know rather than to just say that loudly and repeatedly. No matter how many people call him a liar, they, like he, say that “without evidence.”
During the campaign I really thought Trump was going to win. I wasn’t going to vote for him – I wrote in Tulsi Gabbard. In 2016 I wrote in Jim Webb. As a veteran I’m never going to vote for a commander-in-chief who has chosen to avoid military service — just a quirk of mine as a veteran who’s served in a couple of wars.
But Trump seemed to draw incredible energy. He had huge rallies with loud supporters. By contrast, Joe Biden hardly campaigned at all, and when he did he seemed to always do or say something goofy, lying about his education, dismissing rare questions about his son’s bizarre doings in China, Ukraine, and elsewhere, and sometimes offering to go in the alley to fight people who disagreed with him.
He threatened to ban a rifle that does not exist. He seldom talked about his policies, and when he did, they sounded pretty moderate and extremely vague. He seemed like an amiable old guy who was frankly past his prime. I’m his age, and I need my nap after lunch. I would never presume to take on the awesome responsibility of being President.
But I, along with others, underestimated the huge number of people, including, I suspect, some Republicans, who were just tired of all of Trump’s BS and didn’t want to listen to him for another four years. Biden wasn’t so much a great candidate so much as he was just “anyone but Trump.” One of the things that suggests to me that Trump did not in fact win is the fact that many Republicans down-ballot did fine. Except for Georgia, likely lost for Republicans by Trump’s loud talk about not trusting the election, Republicans did pretty well, making significant gains in the House. If the Democrats really did rig the election why would they have chosen to defeat Trump, but not all those other Republicans?
I find myself wondering if Trump could have ever become “presidential” and learned to speak with courtesy and without insulting people. And, if so, would he have won a second term? I, along with many, thought he never really had a chance to be a good President. Certainly, he brought much of that on himself, with his big mouth and his flying twitter thumbs. But he was immediately attacked and many Democrats who now say he’s lying about the 2020 election being “rigged” were the ones casting aspersions about his win in 2016 – that the Russians elected him. There were people talking about the “resistance” and impeachment before he was even inaugurated. His call to Ukraine was ill-advised and clumsy for sure, but was it really any worse than Biden bragging about how he’d used tax dollars to extort the same Ukrainian government to fire a prosecutor who was investigating the company Biden’s son “worked” for?
The people who “testified” at Trump’s impeachment trial sounded to me like minor bureaucrats who thought their view of foreign policy was correct, and they seemed to be mostly saying that an elected President had no right to ignore their advice or act in a way they deemed inappropriate. It sounded like they had hurt feelings. They had apparently not read the Constitution and not realized that an elected president, whether they like him or not, has some Constitutional powers over foreign policy that they were obliged to follow, or, if they couldn’t, to resign. Rather than resigning on principle, they chose to try to get Trump fired. As inappropriate and rude as Trump could be, he was the president, and all of this seemed petty and unnecessary and unfair to a lot of people.
Trump was like the bull in the arena with the mounted picadors riding in to stick him with lances in order to enrage him enough to put on a good fight for the matador and the audience who came to see violence and gore. And Trump reacted just as the bulls do.
However the audit turns out, we need to find out what the truth is, and to fix problems if they exist. If the auditors find out Trump was right it will create a hell of a mess and likely more riots by his supporters. But despite that risk we need to know the truth before we can ever put this behind us.
Even if it turns out as I suspect — that there were fraud and mistakes and bad election policy indeed, but not enough to have elected Trump — then we still need to know. And we need to change procedures before we have another election so that this argument will not happen again.
Elections will never be perfect, but I think they need to be, and can be, a heck of lot better than this one.
