Ginsberg’s Washington Post op-ed pitches this moment as a time for the GOP to choose: It can either distance itself from Trump’s rhetoric, or it can set its legitimate concerns about election security ablaze at the altar of Trump.
Trump has in recent weeks alleged that expanded mail-in ballots could lead to massive voter fraud, despite very little evidence of that. He has called the election, which has barely begun, “rigged.” He has said the only way he can lose is via fraud, despite the fact that polls show him trailing in the race by as many as double digits. Most recently, he has encouraged supporters to try to vote twice — which would be illegal — to test the system.
Ginsberg says this rhetoric only undermines the Republican election lawyers whose causes he so frequently spearheaded — as well as the GOP more broadly.
“The president’s words make his and the Republican Party’s rhetoric look less like sincere concern — and more like transactional hypocrisy designed to provide an electoral advantage,” Ginsberg wrote.
He adds: “The president’s rhetoric has put my party in the position of a firefighter who deliberately sets fires to look like a hero putting them out. … Calling elections ‘fraudulent’ and results ‘rigged’ with almost nonexistent evidence is antithetical to being the ‘rule of law’ party.”
Ginsberg delves deep into the numbers on alleged voter fraud, noting that he and his colleagues have scoured past elections looking for it — and have come up largely empty. “The truth is that after decades of looking for illegal voting, there’s no proof of widespread fraud. At most, there are isolated incidents — by both Democrats and Republicans,” he says.
This is hardly Ginsberg’s first foray into a more nonpartisan, good-government space. He served on a bipartisan election integrity commission that in 2013 issued a report on improving American elections. And while the law firm he retired from last week, Jones Day, represents the Trump campaign in the 2020 election, Ginsberg didn’t personally work for the campaign. He has also been respected across party lines for years.
But to be clear, Ginsberg is a veteran of some of the most high-stakes partisan legal battles in American political history.
He was a key figure in a 1985 controversy over an Indiana recount that resulted in House Republicans staging a walkout over the majority Democrats’ decision to seat a Democrat in a razor-thin election.
After the 1994 election, he spearheaded wealthy California Republican Michael Huffington’s challenge to the seating of Democrat Dianne Feinstein in the Senate, in which Huffington alleged as many as 170,000 fraudulent votes. Ginsberg argued that there were enough examples of people who voted in the district but didn’t live there to overturn Feinstein’s win, saying the “lack of proper voter registration procedures make it impossible to know the true count."
During the 2000 Florida recount, Ginsberg offered similar allegations, saying: “Chads were seen on the floor during the process. This produces further evidence that mishandling of the ballots, not voter intent, potentially was yielding new votes.”
Ginsberg also advised the infamous Swift boat effort to tar John F. Kerry in 2004, eventually resigning from the George W. Bush reelection campaign over it. In another Washington post op-ed almost exactly 16 years ago, Ginsberg eviscerated the media for an alleged double standard, accusing Kerry advisers of their own nefarious work.
Ginsberg’s new plea to his party comes as it has almost completely avoided pushing back on Trump’s false and hyperbolic claims about the dangers of mail-in voting. To the extent Republicans have pushed back, it has been a transactional argument: the idea that Trump saying these things might discourage Republicans from voting by mail and could damage their election hopes. (And there’s plenty of evidence for that.)
But Ginsberg goes beyond even that, arguing that the whole thing isn’t just wrong and deleterious to the GOP’s 2020 efforts, but that it will undermine other GOP efforts to truly safeguard elections — and risks undermining democracy as a whole.
And he suggests the cost might be even bigger than just losing in 2020.
“Republicans need to rethink their arguments in many of the cases in which they are involved — quickly,” he wrote. “Otherwise, they risk harming the fundamental principle of our democracy: that all eligible voters must be allowed to cast their ballots. If that happens, Americans will deservedly render the GOP a minority party for a long, long time.”
If anyone is in position to deliver such a warning, it would seem to be Ginsberg. We’ll see if anyone’s listening.