Benjamin L. Ginsberg practiced election law for 38 years. He co-chaired the bipartisan 2013 Presidential Commission on Election Administration.
The president has cited “fraudulent” voting and “rigged” elections, including in Tuesday night’s debate — but has produced no evidence of widespread ballot fraud in past elections or in 2020 to justify his abandonment of a core principle of American democracy. Republican leaders rightly rebuked the president’s words, if not the president himself.
As a Republican lawyer who has spent four decades monitoring elections and looking for fraud, I can say with confidence that evidence to support the president’s words and threatened actions does not exist. The president has consistently been behind in the polls, and his aim appears to be seeding chaos in order to somehow cling to power.
The potential damage to the country is obvious. But the evidence-free Trump onslaught on elections also threatens the party that he heads, both now and in the longer term.
Most immediately, the president’s merger of his election-fraud message with the confirmation of a Supreme Court justice puts Republican senators in an uncomfortable position. Trump has argued that confirming a new justice is “very important” to winning any post-election cases. This casts aspersions on the justices’ independence and makes confirming Judge Amy Coney Barrett a cornerstone of Trump’s election chaos strategy.
It poses problems for Senate Majority Leader Mitch McConnell (Ky.) and other Republican senators, especially incumbents. Republican senators swallowed their reticence, and many their past words, to agree to a very tight pre-election confirmation timeline because of the immense long-term benefits of having a 6-to-3 conservative majority on the court.
But Trump’s self-interested, and overt, linkage of Barrett’s confirmation with his post-election litigation plans to retain power through the court tarnishes Republican senators’ reasoning. They can regain some credibility by exerting their leverage over timing and insisting that the president commit to a peaceful transfer of power if he loses.
Trump’s words also place the conservative justices in the uncomfortable position of being told they have an obligation to vote with Trump, no matter what. Before assuming certain victory, the president should remember their lifetime appointments and the outcome of Trump v. Vance, in which the court voted 7-to-2 to reject his claim of absolute immunity from the New York district attorney’s subpoena for his financial records.
On another front, Trump’s rhetoric requires Republican lawyers to reevaluate their positions in more than 40 voting cases around the country. Those cases hinge on whether various protections in state laws — including matching signatures, enforcing postmark rules, purging voter rolls and requiring witnesses for absentee voting — are needed to stop fraud.
The great danger for the Republican Party is that the president’s claims will shine a spotlight on whether proof of widespread fraud exists to support their positions. Again, such proof doesn’t exist.
Rather than suffer a series of defeats, Republican lawyers should evaluate the evidence and settle some of those cases they joined reflexively to counter Democrats. As a general matter, Republicans are on the strongest ground in the cases in which they are arguing to uphold existing state laws against Democratic attempts to weaken protections. In such situations, the elected legislature and governor have made a policy judgment that should be respected. The Supreme Court has been reluctant to allow unelected judges to overturn elected officials’ decisions, especially close to elections.
But in other cases Republicans need to guard against having their arguments for preventing fraud look like efforts to stop groups from voting because they might not support the president. That more Democrats than Republicans seem to be getting ready to vote by mail makes the president’s rhetoric on mail-in ballots sound like a blatant attempt to stop non-supporters’ votes from being counted.
Then there is the question of what happens after Election Day, in particular to Republican candidates in tight races. Imagine a down-ballot Republican candidate clinging to a narrow lead in a state — especially a presidential battleground state — where Republicans are litigating, pre- or post-election, on the basis of fraud.
That Republican — picture Senate candidates in Georgia, North Carolina, Maine, Colorado, Arizona, Iowa or Montana who want to defend their leads — would have the added burden of explaining away Trump’s claims that the results are rigged or fraudulent. In such a situation the president’s words are certain to be used against those candidates.
The president’s absence of commitment to the peaceful transfer of power and his call to invalidate millions of mailed-in and absentee ballots are his latest actions painting the Republican Party into a dangerous corner. Granting his wish to disenfranchise millions of voters without evidence of widespread fraud would actually cause a “rigged” election and threaten a peaceful transfer of power. As when he urged his North Carolina supporters to vote both by mail and in-person, Trump would be the arsonist firefighter committing the crime about which he complains.