Where’s the Fraud?

If there is one thing that Rudy Giuliani taught us in 2020, it is that it’s easier to claim election fraud in a parking lot than in a courtroom. At the exact moment the Associated Press called the election for Joe Biden, Giuliani was standing in a landscaping company’s parking lot ranting that the Pennsylvania election was “a fraud, an absolute fraud.” Just days later, appearing before a federal judge he was more circumspect. “This is not a fraud case,” he admitted.

Watching the judge grill Giuliani at the hearing reminded me of Wendy’s famous 1980s television ad in which three elderly ladies visit a fast-food restaurant dubbed the “Home of the Big Bun.” As the women inspected a tiny meat patty under a very large bun one of them barks, “where’s the beef?”

Republicans allowed former President Donald Trump to turn their party into the home of the Big Lie. And after months of hearing Republicans cry fraud in parking lots, in legislative chambers and on Fox News, judges are now asking, “where’s the fraud?” 

We saw this in Montana when a state trial court judge recently blocked several new laws passed by the Republican-controlled Legislature to combat election fraud. Among other things, the new laws ended Election Day voter registration, prohibited most ballot collection efforts and limited eligible voter IDs. Not surprisingly, under the new law, concealed carry permits alone were acceptable ID to vote, while student IDs were not.

After reviewing the evidence, the court rejected that the laws were necessary to prevent election fraud because there was no history of fraud to be prevented. “Election administrators in Montana are not aware of voter fraud relating to the use of student IDs,” the judge wrote. Indeed, the court noted that the state put forward an expert who could not cite any “instances of fraud relating to ballot collection in Montana.” Another Republican expert said plainly: “I am not convinced that voter fraud is a substantial problem in Montana.”

Florida’s new voter suppression law, Senate Bill 90, met the same fate last month. In striking down the law, a federal judge found that “the evidence shows that SB 90 was not motivated by a desire to prevent voter fraud and ensure voter confidence. Not only is voter fraud extremely rare in Florida, but SB 90’s proponents could not even explain how SB 90 would reduce voter fraud prophylactically.”

And, last month an Arkansas judge blocked four laws enacted by the Republican-controlled Legislature in 2021 to combat nonexistent election fraud. After a full trial, the judge in Arkansas concluded that the state “presented no proof that in-person or absentee voter fraud occurred in Arkansas elections.” At trial, the court noted, the “Defendants concede that concerns about voter fraud and election insecurity in Arkansas are baseless and fabricated.”

Arkansas’ explanation for why it enacted its new laws was, in many respects, refreshingly candid. Lawyers for the state explained that the new laws were a response to public pressure created by misinformation about the 2020 election. The state needed to pass new restrictions on voting, they reasoned, because so many people falsely believe there was fraud in the 2020 presidential election. Rather than correcting misinformation, the state figured it was easier to change laws to suit the misinformed.

For his part, the federal judge who threw out Florida’s voter suppression law offered a much more cogent and troubling explanation. In his 288-page opinion, Judge Mark Walker wrote persuasively that the Republican Legislature passed its voter suppression law “with the intent to restructure Florida’s election system in ways that favor the Republican Party over the Democratic Party.” Put simply, according to the judge, Republicans are changing the election rules to advantage themselves electorally.

If Judge Walker is correct and Republicans are able to enact voting laws to fundamentally “restructure” election rules for partisan gain, it will have a profound impact on who wins and loses and what it means for an election to be fair and free. Left unchecked, we can expect to see increasingly more extreme partisan targeting of election laws that effectively dictate the winners and losers of elections. Voting laws will start to look like the laws legislatures enact when engaging in hyper-partisan gerrymandering. In the meantime, traditional tools and tactics for registering, organizing and turning out voters will become less effective as they are targeted and hobbled by new laws.

The question is whether the courts are prepared and willing to protect voters from legislatures intent on gaining unfair partisan advantage in this way. Or, as with redistricting, will the courts too often bow out and allow politicians to rig the system for their own personal, partisan advantage.

So far the courts have held firm. They rejected the false claims of voter fraud we hear from small men peddling desperate lies in parking lots. They debunked the Big Lie and, at least for now, that is a victory for democracy worth celebrating.