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Analysis

A Year Later, Sham Election Reviews Continue to Undermine Democracy

One year after a failed attempt to reject the will of the voters, states, local governments, and Congress must act to secure elections from this lasting effort to sabotage them.

January 7, 2022

This was first published by the Amer­ican Consti­tu­tion Soci­ety

Loyal­ists of former pres­id­ent Donald Trump invaded the U.S. Capitol one year ago, carry­ing weapons, waving the Confed­er­ate flag, and insist­ing that the 2020 elec­tion was fraud­u­lent. There was no cred­ible support for the claims of “Stop the Steal” advoc­ates. Never­the­less, Pro-Trump politi­cians have spent the past year attempt­ing to fabric­ate that support. They have dented public confid­ence in the voting process and made it harder for voters, in partic­u­lar voters of color, to vote. Less appre­ci­ated, but no less damaging, is the way they have coopted and under­mined a crit­ical tool of our demo­cracy: the post-elec­tion audit.

Many states have rigor­ous proto­cols for post-elec­tion audits, includ­ing random­ized selec­tion of the elec­tronic tallies to be checked against paper records, a commit­ment to objectiv­ity through­out the process, and conduct­ing the audit in full public view. When these stand­ards are upheld, post-elec­tion audits help check that the outcomes of elec­tions are accur­ate, and they main­tain or restore public confid­ence in our demo­cracy.

The sham reviews follow­ing the 2020 elec­tion were, essen­tially, the oppos­ite of this. They were initi­ated for partisan reas­ons, as part of an attempt to over­turn the will of the voters by lever­aging a reluct­ance to accept the votes cast by diverse popu­la­tions who live in major metro­pol­itan areas. They put the conclu­sion before the process, and estab­lished proto­cols were not followed.

The Arizona sham-review, which targeted only Mari­copa County, includ­ing the state’s largest city, Phoenix, exem­pli­fies these prob­lems. On Nov. 30, 2020, while Governor Doug Ducey (R) was in the process of certi­fy­ing Joe Biden as the winner of Arizon­a’s pres­id­en­tial elect­ors, his cell phone rang. It was Trump. Gov. Ducey wisely silenced the call, but Trump wasn’t finished with Ducey. A few hours later, he publicly accused the governor of “betray[ing] the people of Arizona,” and ignor­ing “so many horrible things concern­ing voter fraud.”

A few days later, Trump began his pres­sure campaign for a partisan review. Senate Pres­id­ent Karen Fann, who over the past two weeks had been in close contact with Rudy Giuliani and others repres­ent­ing Trump’s campaign, called for a so-called “forensic audit” of Mari­copa County, Arizon­a’s elec­tion results. Trump endorsed the sham audit, claim­ing it “will easily give us the state.” A private campaign was also under­way, with Giuliani call­ing the four Repub­lican super­visors on the Mari­copa County Board, includ­ing a call to Super­visor Clint Hick­man on Dec. 4, express­ing happi­ness that “there’s gonna be a forensic audit” and that Trump had reques­ted he call to talk to Hick­man about it.

There was no legit­im­ate purpose for this review. The legal chal­lenges had failed, and the elec­tion results had already been certi­fied. On Dec. 14, the Arizona Senate Judi­ciary Commit­tee held a hear­ing in which Mari­copa County elec­tion offi­cials, the Arizona Attor­ney Gener­al’s elec­tion integ­rity unit, and a county attor­ney all test­i­fied that there was no evid­ence of fraud or manip­u­la­tion in the Novem­ber 2020 elec­tion. Never­the­less, the Repub­lican chair of the commit­tee, with the approval of Fann, issued two subpoenas demand­ing Mari­copa County elec­tion mater­i­als in pursuit of a “forensic audit.”

Demands for these reviews were made in other loca­tions as well, such as one reques­ted in a lawsuit by a resid­ent of Antrim County, MI. Pennsylvania state Senator Doug Mastri­ano, who had urged the Acting U.S. Deputy Attor­ney General to address claims of fraud, success­fully deman­ded a review in Fulton County, PA, at the end of Decem­ber. And pres­sure from the White House contin­ued in Arizona. On New Year’s Eve 2020, Super­visor Hick­man in Arizona was asked to call Pres­id­ent Trump. (Hick­man declined.)

On Jan. 2, 2021, federal lawmakers echoed these requests. Eleven pro-Trump U.S. senat­ors issued a joint state­ment announ­cing their inten­tion to vote on Janu­ary 6 to reject elect­ors from disputed states. The alleged disputes were not based in fact — there was and never has been any factual basis for believ­ing there might be errors that plaus­ibly changed outcomes in the pres­id­en­tial contest. Instead, the Senat­ors were respond­ing to concerns and distrust that Trump and his asso­ci­ates had conjured through polit­ical pres­sure.

They deman­ded an “emer­gency 10-day audit,” after which “indi­vidual states . . . could convene a special legis­lat­ive session to certify a change in their vote, if needed” — a scen­ario remark­ably similar to one described in Trump lawyer John East­man’s six-page memo outlining mech­an­isms for over­turn­ing the elec­tion, which was reportedly shared in a Janu­ary 4, 2021 meet­ing in the Oval Office. In the memo East­man describes a scen­ario where “compre­hens­ive audit[s]/invest­ig­a­tion[s]” would be performed by indi­vidual state legis­latures, which could certify Trump elect­ors if the partisan review showed “to the satis­fac­tion of the legis­lature . . . suffi­cient fraud and illeg­al­ity.” Put simply, these audits aimed to provide cover to state and federal politi­cians who wished to nullify Pres­id­ent Biden’s victory.

Trump’s campaign failed. Vice Pres­id­ent Mike Pence was not convinced to go along with any of these delay tactics, the viol­ent attack on the elect­oral vote count­ing process was repelled, and Congress certi­fied Pres­id­ent Biden’s win in the early morn­ing hours of Jan. 7, 2021. But in the year since, the move­ment for sham partisan reviews has taken on a life of its own.

The move­ment’s most prom­in­ent effort to date remains the partisan review of Mari­copa County’s 2020 elec­tion, conduc­ted by the contractor Cyber Ninjas. Cyber Ninjas finally issued a report in Septem­ber 2021, repla­cing the outright lies that have triggered defam­a­tion lawsuits against other Big Lie proponents with copi­ous and mislead­ing innu­endo.

The most atten­tion-grabbing find­ings fit the pattern that purvey­ors of voter fraud myths have long followed: will­ful ignor­ance of basic prob­ab­il­ity, common elec­tion laws, and common elec­tion admin­is­tra­tion proced­ures in order to raise base­less suspi­cions about fellow voters and the dedic­ated public servants who count their votes and certify the results. The report claims it is suspi­cious that some voters share the same full name and birth year — it isn’t. It uses a commer­cial move track­ing service to raise suspi­cions about voters who, accord­ing to the commer­cial service, moved before the elec­tion. But even leav­ing aside the accur­acy of the commer­cial service’s data, tempor­ary moves do not alter eligib­il­ity to vote in Arizona. Unsur­pris­ingly, the Cyber Ninjas audit was promptly used in the continu­ing disin­form­a­tion campaign against our elec­tions, with Trump citing its “crit­ical” — and false — "find­ing” that 23,344 ballots were some­how impacted by the voter purportedly moving.

The push to conduct partisan reviews contin­ues to spread. State legis­lat­ors in Pennsylvania have proposed conduct­ing their own partisan review that would use the Arizona Senate’s actions as a model. Assembly members in Wiscon­sin have launched a partisan effort there, target­ing offi­cials in its largest cities: Milwau­kee, Madison, Racine, Kenosha, and Green Bay. Even after a lawsuit seek­ing to gain access to ballots in Fulton County, GA, for a partisan review was dismissed, Gubernat­orial candid­ate David Perdue has sued Fulton County offi­cials seek­ing a review. Now, even in states that Pres­id­ent Trump won, such as TexasFlor­ida and Idaho, local party activ­ists have deman­ded these reviews over the objec­tions of local elec­tion super­visors of both major parties.

One year after a failed attempt to reject the will of the voters, states, local govern­ments, and Congress must act to secure elec­tions from this last­ing effort to sabot­age them. Elec­tion offi­cials need resources to improve their personal and offices’ phys­ical secur­ity, to fight back against elec­tion disin­form­a­tion, and to secure elec­tion systems against infilt­ra­tion by those who refuse to accept voters’ choices. They should be protec­ted against retali­ation for ensur­ing eligible voters can exer­cise their rights. And through the Free­dom to Vote Act, Congress can protect elec­tion work­ers during the vote tabu­la­tion process, as well as require (and fund) legit­im­ate post-elec­tion tabu­la­tion audits. By provid­ing voters a remedy if their right to vote (and have that vote coun­ted) in a federal elec­tion is infringed, the Act would also protect against the danger of future attempts at sabot­age.

This is a diffi­cult moment for Amer­ican demo­cracy. A disturb­ing propor­tion of the elect­or­ate falsely believes the last pres­id­en­tial elec­tion was fraud­u­lent, elec­tions offi­cials are threatened with viol­ence, legis­lat­ors are seek­ing the right to over­turn results, and state legis­latures are retali­at­ing against those who certi­fied the results. These partisan elec­tion reviews add to the turmoil, feed­ing into disin­form­a­tion around the elec­tion, and under­min­ing legit­im­ate post-elec­tion audits — which show people in the clearest and most trans­par­ent way possible that their votes are being accur­ately coun­ted.