January 5, 2022

A Year Later – Sham Election Reviews Continue to Undermine Democracy

Gowri Ramachandran Senior Counsel in the Democracy Program, Brennan Center for Justice at NYU Law

collage of newspaper headlines regarding the 2020 election including "democratic process" "dismiss fraud claims" "ballots set afire" "suppression" "invalidate ballots" "recount by hand"

This blog is part of ACS’s Blog Symposium remembering and analyzing the January 6, 2021 attack on the Capitol.

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 Texas, Florida 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.

Democracy and Elections, Election Law and Administration, National Security and Civil Liberties