Free and Fair Elections

Let’s be honest. The 2020 U.S. Presidential Election is over. When the electoral college votes, Joe Biden and Kamala Harris will take the helm on Jan 20, 2021. Yet, over 70 million Americans don’t believe that election was free and fair. Are they right?

As always, I’ll identify my biases: I am not a lawyer, nor have I had any training in election law. I am a member of the Libertarian Party, so I do not feel tied to any Republican or Democrat candidates. I do lean conservative, and as a Christian, there are many things within the Democratic Party that I don’t agree with, but as a student of the Constitution, I can say there are plenty of unacceptable norms within the Republican Party as well. Donald Trump did some astounding things as President, but he was not a good leader. Joe Biden can’t seem to put two thoughts together, and it’s clear that other people are going to be making all his decisions going forward, so I expect no better leadership from him. Hopefully the rhetoric from the extremes of both parties will be tempered going forward.

According to the academic publication Encyclopedia of American Civil Rights and Liberties: A free election is one in which all citizens are able to vote for the candidate of their choice, and a fair election is one in which all votes have equal power and are counted accurately. There is a deeper resource that further defines legitimate elections here, but this piece won’t focus on the larger definition; that would make this article even longer than it already is. I don’t think it’s possible to say the election wasn’t free. Even the Libertarians were on the ballot in all 50 states. The American Right wants to say the poor media coverage, the disparaging treatment of the sitting President, and the inability of the Democrat state and local governments to control the domestic terrorism that has run rampant all make the election unfair. Was Trump’s campaign made more difficult by these things? Absolutely. However, none of these things fall into the simple definition of a fair election.  It’s likely based upon the definition of fair from above that each person will interpret it differently based upon their core values, so here’s where we have to decouple our thoughts from our feelings. There are those who believe that it was exceedingly important to ensure a fair election by ensuring a ballot made it to every registered voter. This could be true. But isn’t it also true that some people don’t want to vote? Is trying to coerce a vote out of a person who doesn’t intend to vote actually fair? If that person doesn’t want to vote, how do you ensure that person is the one filling in the ballot? On the counterpoint, if you don’t ensure that everyone has the ability to vote per their rights, can you really say that it was fair? What is the minimum standard for fairness? As it turns out, it depends entirely on the individual states.

Per the denial of Texas v. Pennsylvania, the Supreme Court held that presidential elections are entirely sovereign to the states. No state has standing to challenge the election results of another state. Art III of the Constitution clearly states “In all the other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction…” meaning that there is no black and white which defines the original jurisdiction of a State v. State legal filing, despite Art III earlier defining federal judicial authority over “Controversies between two or more States”. The Supreme Court has the ability to deny a case solely on the basis that it has not been filed in a lower court. In the case of Texas v. Pennsylvania, there was no opportunity to file in a lower court, so many legal experts thought there was a chance that the Supreme Court would hear the case. In order to prevent further legal action, the Supreme Court allowed the case on the docket prior to dismissing it; this decision made further actions by Texas moot, sealing the results of the election. The determination from SCOTUS defines the fairness of the election by the jurisdiction of the voters, which is by their state. Every citizen of the defendant states may have been subject to a poorly administrated voting process, but they were all treated the same. Because the Electors Clause places the authority entirely on the state legislatures, if the state legislatures don’t take any action, no one can make them, especially not the government of another state (no legal standing). The Electors are entirely a state-defined process, and their results are simply delivered to the President of the Senate, who counts them and announces the winner.

“But what about the voter fraud,” some of you are shouting! How could the Supreme Court say that the voter fraud was ok!? They didn’t. All they said was that the individual states are responsible for a sound election. The defendant States in the Texas lawsuit may have had unfair processes, but standing under the 14th amendment does not appear to exist, because there was no evidence of fraud presented. To bring a case would require clear and convincing evidence, which will take much longer to collect and collate. It would take even longer to meet the evidentiary standard for a criminal proceeding (which would not be a federal case), defined as beyond a reasonable doubt. As I understand it, the evidence presented was all about voting procedure changes, not the voting procedures. I cannot comment on the authority or jurisdiction of law enforcement to look into violations of individual states election laws, but I don’t think they’re interested in digging. It’s also unlikely that the FEC would find anything financial tying any allegations of fraud to any campaign.

Was the election free and fair? Let’s debate.