Until this past Thursday, most of the fraud being alleged in the 2020 election was of the typical variety you hear about in every election – just more of it. Dead people voting, ballot box stuffing, ballot harvesting, lax verification of voter signatures and other required information, etc. These transgressions, which normally are so small in number as not to affect national elections, were magnified greatly in 2020 because of the huge increase in mail-in voting. However, even on this larger scale, it is extremely difficult to ascertain exactly how many votes should be disqualified if the allegations could be proven. And so far, in every state where these allegations have been made, even the most optimistic estimates for the number of votes to be disqualified don’t add up to being enough to change the outcome.
This reality, along with the pressures of time, have made the maneuvers of Trump’s legal team look scattershot. Lawsuits continue to be filed in some states but are also being withdrawn in others. There are supposedly hundreds of sworn affidavits from eyewitnesses to cheating of some variety or another. But there is no overall view on how, when, or where all those affidavits will be presented in legal proceedings in time to make any difference.
All that changed this past Thursday.
Trump’s legal team presented an entirely new fraud accusation that makes all else pale by comparison. Rigged voting machines. This is not just the garden variety claim of a single compromised machine in one precinct of one state. This accusation describes a sophisticated network of many rigged machines (and participating software technicians) able to switch votes from Trump to Biden in small enough clumps to evade detection, but large enough in the aggregate to change the outcome. The accusation was leveled against machines made by Dominion Voting Systems.1 Not all states use voting machines from Dominion. However, in this election it just so happens that all the key “swing” states used these machines, either in a few counties or across the entire state.
It is further alleged that in some states, most notably Michigan and Pennsylvania, the number of votes that needed to be “switched” from Trump to Biden to ensure a Biden victory proved to be too great a task and/or risk for the rigged machines to handle and still avoid detection. Thus, additional measures were necessary such as submitting thousands of fraudulent ballots into the counting machines that only had one marking (Biden). It was the delivery and submission of these last-minute phony ballots that was supposedly observed by eyewitnesses and documented in sworn affidavits. The combined acts of rigged machines and manufactured Biden-only ballots are presented as the explanation for the extreme statistical anomalies observed in the vote count in critical swing states.2
These are sensational allegations to be sure. But let’s suppose for a moment they can be proven to be true. What could the remedy possibly be? If the malicious software doing the vote switching is as sophisticated as is claimed, it is unlikely that it can be determined exactly how many votes were switched. Therefore, while it may be possible to prove technically the machines were rigged, it may not be possible to know if enough votes were switched to change the outcome. What then? A remedy that disqualifies all the votes coming from a rigged machine would have to include many votes that were legitimate. There is also the broader question of disqualifying all votes counted by any machine from the same manufacturer (Dominion) who produced the specific machines proven to be rigged. This would be a reasonable request since it is likely that at least some of the rigged machines may have included the technical ability to “cover the tracks” of their own nefarious activity. Further, if a large portion (but not all) of the voting machines in a state were from Dominion, should the entire voting result from that state be considered invalid?
The clock is counting down to immovable decision dates set in the Constitution for the election process. As we write this, designated authorities in all the states, including the states with pending legal challenges are now certifying their vote count. The next procedural step after that is for each state to resolve all controversies and send formal notification of their slate of Presidential electors to the federal archivist by December 8th. Then, on December 14th, the official Electoral College vote is held across the country with the named electors from each state. While that vote will conclude by the end of the day on December 14th, those votes are not officially counted and certified until January 6th during a joint session of Congress with Vice President Pence presiding.
The time it would take to prepare, schedule and prosecute a legal case of such magnitude appears impossible to complete in the very short time left before the fixed dates of these remaining election events. If Trump’s team is correct and the machines were in fact rigged, this raises the unpalatable prospect of a fraudulent election carrying the day. Because of this, it has been suggested by some that even without a formal court proceeding, and the evidence of rigged voting machines is compelling, state legislatures could take matters into their own hands. They could directly name a slate of electors for Trump even though Biden was the vote count winner in their state. As Andrew McCarthy points out in a National Review article on 11/21, this would actually be a violation of existing election law in each state, and would be very unlikely to pass Constitutional muster even with the new 6-3 conservative leaning Supreme Court.
The only way to legally achieve this end would be for state legislatures to quickly pass a new law allowing themselves to directly name electors. Of course, any new law would have to be signed by the Governor of that state before taking effect. Since the Governors of the key swing states in question are Democrats, that won’t happen. Thus, we see no viable path for shifting electoral votes from Biden to Trump in the time remaining.
However, there are two other possible paths that could potentially impact the election result even at this late date (both are longshots):
- Vote-certifying officials in the states where the allegedly rigged voting machines were employed could decide not to certify based on evidence presented to them. If that evidence was presented in court as part of a lawsuit against the state, the court could potentially rule to prevent the state from certifying its vote. Without a certified vote, a slate of electors from that state cannot legitimately be chosen to participate in the electoral college vote. To make a difference, this theoretically must occur in enough states to lower Biden’s total electoral vote count below 270. If that happens, the Constitution then dictates that the next President would be chosen by the House of Representatives. In that scenario, Trump has the advantage because of the Constitutionally mandated method for how the House must vote in such a circumstance. This will be explained below.
- Biden wins 270 or more Electoral College votes and the normal process moves on to the formal counting of those electoral votes on January 6th. During that count, in front of a joint session of Congress, it is procedurally possible for an “objection” to be raised questioning the validity of a state’s electoral votes which may have been rendered suspect by rigged voting machines. At least one member of both the House and Senate are needed to raise a formal objection. If this happens, the House and Senate then separate and deliberate among themselves for two hours to decide whether to uphold the objection. Both the House and Senate must agree to uphold the objection, or it is dismissed. Objections can potentially be raised for each and every state. It is theoretically possible for enough objections to be raised and upheld by both chambers that Biden’s electoral vote total would drop below 270. If that happens, the election process moves to the House of Representatives.
If the vote does move into the House of Representatives by either of the above pathways, a special Constitutional rule applies. Each state represented in the House gets only one vote. That results in only 50 votes being cast in the House as opposed to the usual 435 votes cast by each member of that chamber. As it turns out, despite the Democrats having an overall greater number of House members than Republicans, the Republicans currently have the majority of representatives in 26 individual states. The math works out like this because the Democrats have big majorities in delegate-rich states like California and New York. Republicans have the majority in delegate-lean states which are larger in number. The result of the 2020 House elections did not change this arithmetic. Therefore, in theory, the House would vote 26 – 24 to elect Trump President unless one or more of the Republican controlled states defects and decides to vote for Biden.
We’re not holding our breath for either of these scenarios. If after a Biden inauguration on January 20th it is ultimately proven beyond any doubt that voting machines were rigged and enough votes were switched and/or manufactured to elect Biden instead of Trump, we’ve got a big problem. There will be no legitimacy whatsoever to the Biden administration and no possible remedy to correct the problem until the next election.
In that eventuality, how could voters be assured that the NEXT election isn’t also rigged? The loss of voter confidence would be enormous and would likely lead to very low turnout in the next election, further delegitimizing the government. Since Democrats still control the US House of Representatives, there will be little chance of any federal legislation enacted to address this problem. And since Biden will be populating the Department of Justice with his own appointees, there’s also little chance of any action there. Afterall, the scheme worked to the advantage of the Democrats – why would they want to change it?
At the state level, the key states where fraud was purported to be the most rampant, Michigan and Pennsylvania, have Democrat Governors. Why would those Governors ever sign legislation in their state to change a voting system that could potentially be used to ensure their party remains in power? It gets personal for the Democrat Governors of Michigan, Minnesota, and Wisconsin who are all up for reelection in 2022. And while Pennsylvania will have an open gubernatorial race in 2022, the outgoing Democrat Governor will want to preserve the present voting system to guarantee he has a Democrat successor.
The specter of rigged voting machines is a monster allegation with leviathan consequences. At present, these allegations are being treated by the news media as lunatic fringe claims with time running out. It will be clearer in the coming days/weeks if Trump’s lawyers truly have credible evidence of a scam. If so, don’t expect to get any of the details from the usual news sources. Almost all the major media outlets have a lot to lose if any of this is true. It would further degrade their polling credibility (if even possible) and make them look like fools for ignoring what could potentially be the biggest political news story of the century. Of course, the risks are just as high for Trump’s legal team. Their reputations will take a big hit if the allegations of rigged machines are false or can’t be proven. This is high stakes poker.
1 It has already been acknowledged by all parties that a Dominion voting machine “mistakenly” switched 6,000 votes from Trump to Biden on election night in Antrim County, Michigan. It was described as a software “glitch” that has since been corrected.
2 Examples of statistical anomalies:
- 300,000 more votes for Biden then there are registered Democrats in Pennsylvania. That total came from just 11 of the 67 counties in the state.
- Biden receiving 100,000 more votes than the Democrat Senate candidates in Georgia.
- Biden receiving 70,000 more votes than the Democrat Senate candidate in Michigan.
- Nearly 90% voter turnout in both Wisconsin and Minnesota – far exceeding turnout numbers in the four most recent national elections (including the historic Obama election in 2008).