WASHINGTON, October 23, 2016 — If nothing else, Presidential candidate Donald Trump has again stirred both pundits and souls. He has also stirred the legal minds of Americans from coast to coast. With his recent statement that he may not “accept” the upcoming Presidential race election results if he loses, Mr. Trump may not be able to say anything more outrageous.
There is a difference between “not accepting,” and affirmatively “challenging” the results.
Refusal to accept
Mr. Trump has put the world on notice: he is questioning the legitimacy of the election — but only if he loses. Mr. Trump said if he loses, it will be clear (to him) that the election was rigged.
Consider that for a moment: If the election is rigged, there is no point in having it. Trump is saying he is the only legitimate winner here.
What would it really mean if Mr. Trump is correct, and Secretary Clinton wins? A logical extension of that premise is that Hillary Clinton would be the beneficiary of a rigged election, which would mean she would be heading an illegitimate government, meaning no one would have to pay taxes, meaning defiance against the government and disobedience to the country’s laws would be okay, and further, disobeying law enforcement would be appropriate… where would it end? Mr. Trump’s statement challenges the very fabric of our country.
He has intimated that if he loses, there will have been fraud in the process. How is it that if he wins, Mr. Trump will know the election was legitimate, but if he loses, it could only be the result of rigging and fraud?
Challenging results: Evidence needed
Mr. Trump is certainly free to “not accept” the result. But such refusal is effectively meaningless unless he affirmatively acts to challenge any state’s results. As an aside, his position here is also nonsensical, because he has indicated he would (of course) “accept” the result if he won. To beg the underlying assumption about the statement, how is the process different and challengeable based on the result?
Trump alleges that if he loses, that is proof that the system was rigged, that there was rampant and widespread voter fraud, aided and abetted by media bias and the collusion of powerful special interests.
Legally, general allegations such as those offered by Mr. Trump cannot trigger a recount or investigation. There must be specifics. The votes alleged to be fraudulent must be identified and the number of those votes must be sufficient enough to make a difference. In order to be positioned for such a challenge, hard evidence would be needed. To demonstrate voter fraud, for example, Mr. Trump would have to identify voters involved and he would need to have election records to back up his allegations.
To obtain such evidence, Trump has said that “you need to watch” what is happening at polling places. Gathering the kind of evidence needed to prove voter fraud will be difficult if not impossible to collect in most states, as observers are not going to be allowed. Most states require poll watchers to have credentials or some type of training evidencing an understanding of the process. Even in the states that allow the public to walk in and observe, observers would not be allowed to go anywhere near a voter, a voting booth or an election official. Violations of these proximity rules would result in the removal of observers.
Challenging an election result is possible, as we saw during the Bush-Gore contest in 2000. A challenge, should one occur, is not going to be a national challenge, however. If any challenge is undertaken, it would be on a state-by-state basis, as U.S. elections are actually administered on a state-by-state basis.
Every state has its own laws governing elections. Some states require recounts if the vote count is extremely close, while other states allow a candidate to request a recount under certain circumstances.
Historically, election challenges are mounted in contests where razor-thin final margins could understandably affect the ultimate result. The Bush-Gore race was our nation’s best contemporary example of this. As may will recall, the challenge in 2000 was over the extremely close vote in Florida.Interestingly, few remember that New Mexico’s vote was also close and challenged in that election. But ultimately, the final count in that state effectively didn’t matter in the final national tally as the five electoral votes at stake there wouldn’t have put either candidate over the top for the national total.
There are numerous studies and court decisions that indicate there is not significant voter fraud at all in this country, or at least hardly any. In Mr. Trump’s opinion, however, these studies — given that they were done by untrustworthy academic elites then reported by the biased major media — are thus not credible. Another question begs: Where are the studies that the trustworthy people did that demonstrate such widespread fraud occurred?
Mr. Trump should take comfort that attempts to rig elections routinely fail. Take efforts to pass voter identification laws. These laws have generally been pronounced for what they are: a way to try to control elections. Courts continue to call out those proposing and passing them.
Reading the recent Federal court decision striking down the North Carolina voter ID law was like watching North Carolina legislators getting slapped on their posteriors. The Court flat out stated that such ID laws were designed to prevent specific voters from voting, saying the Republican legislature in that state “targeted African-Americans with almost surgical precision.”
Voter ID laws have been shown, over and over again, to be enacted to oppress particular classes of voters. Viewing the makeup of the states that have tried to enact these laws and viewing the timing of those efforts is elucidating. Texas is a perfect example of this. The day after the Texas law was squelched, an upset Governor Abbot claimed there was rampant, raging voter fraud in his state. He selectively cited a “Dallas Morning News” article, without referencing the numbers in that article, which stated that 80 (eighty) cases of voter fraud had been prosecuted in Texas since 2002. The math thus tells us that of the millions and millions of ballots cast in those fourteen years, 80 ballots may have involved fraud.
Elections are not rigged. They are run by states’ Boards of Elections. State governors often select the board members. There are many more Republican governors than Democratic governors. Hundreds of thousands of citizens volunteer to help run elections. These volunteers are from both parties. Poll watchers are from both parties and assure voting is administered fairly.
The voting process in the United States is the absolute gold standard every other country looks to when evaluating a true democracy. To belittle that process is unconscionable, and so outrageous that it is almost funny.
One of the most important traditions in our country is the peaceful transition of power on local, state and national levels. Our nation’s Founders gave birth to this nation through revolution. They came to this land and created a system of representative government that is now the envy of the world. The Founders understood it was absolutely critical to have such a system and to be able to rely on it, and to be able to affirm the electoral process as well, right through to the peaceful transition of power.
If Mr. Trump truly does not accept the final results of this election as certified by each of the states, as voted upon by the Electoral College and as confirmed by Congress, that act would be unprecedented in American history.
What Mr. Trump should do is what every candidate before him has done: He should state unequivocally that he will accept the outcome of the upcoming presidential election. Then, after the election, if there is some evidence that the election of electors in any state was tainted by fraud or that there was any vote rigging involved, he could challenge the results at that time.
Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980. He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website.
His book “The 8 Critical Things Your Auto Accident Attorney Won’t Tell You” can be instantly downloaded, for free, on his website: http://www.samakowlaw.com/book.
Samakow has now also started a small business consulting firm. His new book “Step By Step, Achieve Small Business Success” is available at www.thebusinessanswer.com.