It's taken four months, but the most comprehensive election audit in battleground Michigan's history is over. The bottom line: The certified presidential results were almost precisely correct, so President Biden undoubtedly deserved the 16 electoral votes he got.
The announcement Tuesday was not only a coda on one of the most intense battles in former President Donald Trump's war on democracy. It also was the prelude to efforts by the state's politically divided power structure to boost faith in the system with improvements in time for 2022.
Democratic Secretary of State Jocelyn Benson said she would press the Republican-majority Legislature to require similarly extensive auditing of future statewide elections before the results are finalized. Last fall several lawsuits by Trump allies demanding such audits were rejected by courts.
Michigan was one of the focal points of Trump's efforts to reverse his defeat with lies designed to sow doubt about the result, especially the credibility of absentee vote totals, and his crusade gained alarming traction when GOP election officials balked at certifying the results in Detroit. The federal transition process was permitted to get started, with the formal recognition of Biden as the "apparent winner," only after the normally obscure Board of State Canvassers reversed course three weeks after Election Day and voted 3-0 to lock down the result.
Biden took the state by a clearcut 154,000 votes, a victory margin of 3 points. It was his most decisive victory in the five states that he took from Trump's 2016 win column. That result was affirmed by a statewide "risk-limiting audit" in which more than 18,000 randomly selected ballots from more than 1,300 jurisdictions were reviewed by local clerks.
The audits examined an equal number of ballots cast by mail and by machine, because the method for casting the 2.8 million votes statewide was almost exactly split. Among the findings was that the potential error in tabulating the absentee ballots Wayne County, which takes in Detroit, totaled 17 out of 174,000 submitted.
Polls nonetheless have shown that most Republicans in the state, and nationally, continue to profess distrust in the election results — and Trump continues to assert without any credible evidence that he was the rightful winner.
The audit result should eradicate "any rationale for continuing to question the integrity of the election and the validity of the outcome," Benson said. "Now it's up to every leader to acknowledge that truth."
While momentum is growing for newly restrictive voting rules in the GOP-run legislatures of several other hard-fought 2020 states — Pennsylvania, Georgia and Arizona most notably — Benson and Gov. Gretchen Whitmer, a fellow Democrat, are hoping to forge narrow compromises to preserve some of the election easements created last year because of the pandemic.
One proposal would allow the processing of mailed ballot envelopes to begin well before Election Day so that tabulating could get started soon after the polls closed. The record surge of absentee votes, and the prohibition on opening the envelopes and verifying signatures before Nov. 2, led to delays in results that fueled much of the misinformation and distrust in the process.
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Rosenfeld is the editor of Voting Booth, a project of the Independent Media Institute.
Maricopa County Supervisor Steve Gallardo had heard enough. Half an hour into the board's consideration two weeks ago of a "forensic" election audit — where two outside firms would assess if the voting system used in Arizona last fall had been infiltrated and the results altered — the former state senator said his vote in favor "was a tough pill to swallow."
"We had our presidential preference election, not one complaint," said Gallardo, a Democrat. "We had our primary election in August. Not one complaint. Everyone was happy. We had our general election. No complaint, until a day or two after the general election, when some folks in our community and across this country started looking at the results."
Arizona had the second-closest presidential outcome of any state in 2020, with Joe Biden prevailing by only 10,500 votes — a margin of just three tenths of 1 percentage point over Donald Trump. That margin (only Georgia's was narrower) still did not trigger a recount. But since the Arizona outcome was certified, the defeated president's supporters, including several members of the Legislature, have pressed their attacks against the legitimacy of the results — raising questions about what proof, if any, will ever convince them, and whether the most crucial balloting data that could verify the results is being preserved and made public.
The supervisors governing Arizona's most populous county voted unanimously to begin the audit of their system's hardware and software. And in the state Senate, Republicans who supported Trump have demanded the county turn over all its voting machines and 2.1 million ballots.
The county has refused, even as Trump supporters are urging the Senate to seize the machinery and the paper. Trump's team, including his personal lawyer Rudy Giuliani, speculated in Arizona testimony that Trump votes were secretly turned into Biden votes. Those allegations are part of what has led Dominion Voting Systems, which made the equipment, to sue Giuliani for $1.3 billion. (The company has filed 2,912-pages of exhibits detailing Giuliani's allegedly false statements.)
This fight in Arizona centers on what evidence could be used to satisfy voters that election results are accurate and legitimate.
Seen from afar, Arizona is a national leader in transparent elections. As Sambo Dul, the state elections director, told the National Association of State Election Directors during its recent conference, every step of the process is "aimed at ensuring the security and integrity of our system."
Dul cited programming the voting system without being connected to the internet, using hand-marked paper ballots, the testing of machinery before and after the election — and the audits of reported results, including verifying results before certifying winners. These steps all occurred, and no hints surfaced that the results were wrong.
Maricopa County's audit will go further, Scott Jarrett, director of Election Day and emergency voting for the county, told the county supervisors in January. A forensic audit, he said, will "determine and identify whether our electronic equipment is accurate, reliable and secure."
What the audit will not do, however, is examine what may be the most important part of the vote-counting evidence trail: the computer files created to count votes and the activity logs documenting that process.
The latest voting systems, including those used in and around Phoenix, do not count paper ballots directly. Instead, scanners create a digital image of every ballot card. The images are then analyzed by software, which creates a grid that correlates ink marks (votes) with each ballot's choices. The resulting tally, a spreadsheet of sorts, is built into the vote count. That tally is called the cast vote record.
And it won't be part of the final doublecheck of Arizona's outcome.
In the middle of 2020, lawyers aligned with the Florida Democratic Party sued the state's eight largest counties to force them to preserve ballot images as public election records. The counties agreed to do so in the event of a presidential recount, which was not needed because Trump won the state decicively. Meanwhile, starting this year, Florida will allow its counties to use ballot images in recounts.
Since the Civil Rights Act was enacted in 1965, all materials used in federal elections must be preserved for 22 months. However, that retention requirement predates today's voting systems and has not been updated, even though state and federal election officials have been gradually acknowledging this data is crucial.
For several years, Maryland has used ballot image audits to verify its results before certifying winners. And this week the federal Election Assistance Commission adopted a new, voluntary set of best practices for the states that refers to ballot images but does not urge the states to save them. The massive election reform bill introduced by congressional Democrats, known as HR 1, does not update the election records retention requirements for digital data.
Republicans have also cited digital evidence to push back on conspiracy theories. In Georgia, Gabriel Sterling, the state election operations manager, told the press that his staff used the activity logs in scanners to identify why several thousand votes for Trump were not counted on election night. Basically, the data was not transferred from the precinct scanners to the county's tabulation system. Those votes were added to Trump's totals, although the number was far short of what was needed to change the outcome.
In the Arizona's Senate, pro-Trump Republicans are still seeking to prove Biden didn't win the state. Meanwhile, Maricopa County's audit of its election machinery — but not its presidential ballots and vote count evidence trail — began last week.
"Our equipment is ready," Jarrett said. "It has not been tampered with. It's still in the same state it was during the election and then the post-election."
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Something unseen the past four years happened Monday night: A legitimately elected national leader addressed the country about the strength and resilience of our democracy.
That is what Joe Biden did soon after the four electors in Hawaii cast the final ballots electing him the 46th American president. After nearly six weeks of unrelenting and unprecedented falsehood-fueled assaults by President Trump on the legitimacy of the election, which have been wholly repudiated by judges of all stripes across the country, the unmistakable takeaway from Biden will be this: The system held, the truth has been formalized, and now it is time to move on.
"If anyone didn't know it before, we know it now. What beats deep in the hearts of the American people is this: Democracy," Biden declared. "The right to be heard. To have your vote counted. To choose the leaders of this nation. To govern ourselves."
The message was designed to be heard not only to the 74 million who voted for Trump, tens of millions of whom have come to believe his baseless claims, but also to the leaders of a Republican Party — who have chosen astonishing complicity in the president's efforts over focusing on the coronavirus pandemic and subsequent economic upheaval.
There were no surprises as electors convened in ceremonies for casting separate paper ballots for president and vice president — foreclosing yet another of Trump's imagined paths to overturning the results and stealing re-election. (The biggest disruption was in Michigan, where officials cited "credible threats of violence" in closing the capital in Lansing while the 16 Biden electors met.)
"In America, politicians don't take power — the people grant it to them," Biden said afterward. "The flame of democracy was lit in this nation a long time ago. And we now know that nothing, not even a pandemic or an abuse of power, can extinguish that flame."
Electors in 32 states and D.C. are legally required to vote the way most people in their jurisdictions did, laws the Supreme Court unanimously upheld this summer, and votes for others are extremely rare because electors are almost always partisan loyalists. There were no such "faithless electors" on Monday.
Biden and Vice President-elect Kamala Harris, who took 81 million votes nationwide, have each earned 306 votes in the Electoral College to 232 for Trump and Vice President Mike Pence.
An extraordinary lawsuit by Texas, filed directly with the Supreme Court, sought to delay the Electoral College meetings in state capitals from coast to coast and block the votes of 62 electors in four battleground states carried by Biden. The justices rejected the suit outright on Friday night — but not before Trump intervened and persuaded almost two-thirds of the current Republican state attorneys general (18 of the 26) and almost two-thirds of the current GOP House members (126 of the 193) to join him.
It was the most prominent of several dozen courthouse defeats for Trump since Election Day, and the second in days at the Supreme Court. But the president's attorney Rudy Giuliani vowed Sunday that five more lawsuits would be filed in state courts this week.
Transition officials signaled that in his speech to the nation Biden would underscore the breadth of his win — a margin of 7 million votes that helped him flip five states Trump won in 2016 — in urging GOP leaders in Congress to not only accept his victory but also negotiate compromise legislation soon after the inauguration. Biden will have the support of the smallest Democratic majority in the House since World War II and at best 50 members of his party in the Senate, but only if Democrats win both seats in Georgia next month.
A quick acquiescence by prominent Republicans was far from certain, though, in part because so many of their supporters say they really do believe Trump is being robbed of a second term. Polling in the last week underscores this. Quinnipiac found just 60 percent of voters, and only 23 percent of Republicans, view Biden's victory as legitimate. Fox News found 36 percent overall, almost all of them identifying with the GOP, think the election has been stolen from the president
On Sunday, for example, House Minority Whip Steve Scalise — one of the Republicans who backed the Texas lawsuit — declined to commit even to calling Biden the president-elect after Monday and encouraged Trump's lawyers to keep fighting.
The previous day, thousands of Trump supporters rallied against his loss in downtown Washington, and dozens were arrested after skirmishes with anti-Trump demonstrators at night.
"I worry about the country having an illegitimate president, that's what I worry about. A president that lost and lost badly," Trump said in a Fox interview that was taped Saturday.
And on Sunday, he offered this comprehensively incorrect summary of the state of the election on Twitter: "Swing States that have found massive VOTER FRAUD, which is all of them, CANNOT LEGALLY CERTIFY these votes as complete & correct without committing a severely punishable crime."
The results will be sent to the Capitol, where Pence will be called on to preside Jan. 6 at the joint session of Congress where they will be formally tabulated. Several House Republicans have vowed to seek to block the counting of votes from several Biden states. And they could delay the final step if at least one GOP senator — Ron Johnson of Wisconsin has signaled he's willing — supports their parliamentary move. But that would only succeed if majorities in both halves of Congress go along, which is not going to happen because the House is under Democratic control.
Trump's crusade has further heightened anxiety about the Electoral College system, which gives outsized weight to smaller states at a time the nation is becoming increasingly urbanized. Combined with the nation's increasingly polarized demographics, it has produced two presidents (Trump in 2016 and George W. Bush in 2000) who lost the popular vote — and that could have happened again with shifts of less than 100,000 votes in three states.
Getting rid of the system would require a constitutional amendment, effectively meaning rural states would have to go along. Since that looks out of the question, a leading alternative is a workaround called the national popular vote interstate compact:
States with a combined 270 electoral votes would pledge those electors to the nationwide popular vote winner. So far 15 states plus D.C., with a combined 196 votes, have joined.
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Two extreme long-shot lawsuits are still sitting at the Supreme Court, a day after it waited just minutes before dismissing the first challenge to the presidential election it looked at.
There was not a word of dissent, from President Trump's three nominees or any of the other justices, as the court declined Tuesday evening to consider a bid by Pennsylvania Republicans to overturn Joe Biden's clear victory in the state.
Hours later came the deadline set by federal law for states to lock down their election results, and their assignments to the Electoral College, and make them almost totally immune from further challenges. While that essentially locked in Biden's election as the 46th president, it did nothing to stop Trump from continuing to falsely claim he won another term — or to prevent almost all his fellow Republicans in authority from appeasing the unprecedented effort by a president to delegitimize democracy with baseless conspiracy theories about voting fraud.
All but one state appears to have entered the so-called safe harbor on time, which means Congress must accept the electoral votes cast next week when they arrive for tabulating at a rare joint meeting of the House and Senate, to be held Jan 6.
The exception is Wisconsin, which has seen as much election turmoil as any since the pandemic upended voting and spurred a wave of litigation starting this spring. The state has been delayed because lawsuits by Trump allies, in several ways similar to the one from Pennsylvania that got spurned Tuesday, are on appeal to the Supreme Court and in the state courts.
The other suit before the justices, filed only Tuesday, is a claim by Republican Attorney General Ken Paxton of Texas that the state's citizens' political rights were unconstitutionally limited when rules for mail-in voting were relaxed in Wisconsin, Pennsylvania and two other battlegrounds Biden carried, Georgia and Michigan. All of them have Republican-majority legislatures. They account for 62 of the 306 electoral votes Biden can legitimately claim, but Texas says all those votes should be disallowed.
The high court has the power, but is not required, to decide lawsuits one state brings against another.
Attorneys general from the defendant states dismissed the Texas case with an array of colorful language.
But Trump on Wednesday said he would put lawyers to work arguing the Texas side of the case, declaring on Twitter: "We will be INTERVENING in the Texas (plus many other states) case. This is the big one. Our Country needs a victory!"
He offered no other details, such as whether he would ask his campaign attorneys or the Justice Department to get involved.
A Wisconsin appeals court will hear arguments Thursday on a long-odds suit alleging the state Elections Board permitted the finalizing of election results despite claims of irregularities in Milwaukee and Madison — and that as a result the statewide result should be tossed and the GOP Legislature should get to pick the electors.
Missing the safe harbor deadline does not nullify Wisconsin's 10 electoral votes, but it will make them slightly more vulnerable in Congress, where GOP Rep. Mo Brooks of Alabama says he will mount a challenge he has not detailed. Still, it's essentially inconceivable the Democratic-majority House would vote to throw out any slate of Biden electors.
Pennsylvania's 20 electoral votes, which Biden carried by 80,000 votes, were locked down Tuesday by a single, 18-word sentence ending with the word "denied."
The appeal, by Republicans led by Rep. Mike Kelly, argued that a state law enacted last year (with just one GOP "no" vote) allowing all Pennsylavnians to vote by mail without an excuse violated the state Constitution — and so all 2.5 million mailed ballots, mainly cast by Democrats, should be thrown out. Gov. Tom Wolf, a Democrat, argued in his brief to the justices that their getting involved in such a purely state matter would be "one of the most dramatic, disruptive invocations of judicial power in the history of the republic."
Meanwhile, almost all GOP members of Congress are declining to commit themselves publicly to the correct answer to the question: Has Biden won the election? Some say they may do so after the electors meet across the country Monday, while others say they will wait until Congress counts their votes in four weeks.
Meantime, their refusal to agree on the facts is furthering the undermining of voter confidence and putting a cloud over the peaceful transfer of power and the onset of the Biden administration.
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