Opinion: Carolina Journal Opinions

More fake election news

Back in October, I used the phrase “fake news” to characterize an AP story that painted a highly distorted picture of election law litigation in North Carolina and other states. Recently Time published a story by Molly Ball that puts a similarly misleading spin on the facts. In “The Secret History of the Shadow Campaign That Saved the 2020 Election,” Ball describes “a well-funded cabal of powerful people, ranging across industries and ideologies, working together behind the scenes to influence perceptions, change rules and laws, steer media coverage and control the flow of information.” Their work, she says, “Touched every aspect of the election”:

They got states to change voting systems and laws and helped secure hundreds of millions in public and private funding. They fended off voter-suppression lawsuits, recruited armies of poll workers and got millions of people to vote by mail for the first time. They successfully pressured social media companies to take a harder line against disinformation and used data-driven strategies to fight viral smears. They executed national public-awareness campaigns that helped Americans understand how the vote count would unfold over days or weeks, preventing Trump’s conspiracy theories and false claims of victory from getting more traction. After Election Day, they monitored every pressure point to ensure that Trump could not overturn the result.

As far as the scale and sophistication of that shadow campaign is concerned, Ball’s description is accurate. However, she also insists that the cabal of powerful people who organized it and carried it out “were not rigging the election; they were fortifying it.” Against what? Against Trump and his “henchmen” who were, in her words, “running their own campaign to spoil the election.” That, in my view, is a gross mischaracterization at best. Indeed, given that the actual sequence of events and the actual motivation of the parties were pretty much the opposite of what she claims, a less charitable way to characterize Ball’s account would be to call it a lie.

As Ball acknowledges, the Democrats hatched their plan to “fortify” the election in the fall of 2019, and they began implementing it in earnest in the spring of 2020. She says this was done to protect the election from a Republican attack, but the only evidence she provides of such an attack are President Trump’s tweets: the ones he posted in the spring of 2020 complaining about the Democrat’s effort to maximize mail-in voting, which was already underway by then, and the ones he posted in the fall of 2020 accusing the Democrats of having run a successful shadow campaign to keep him from winning—the very campaign, in fact, that Ball describes in such detail. The timing of these tweets alone contradicts Ball’s claim that the cabal was responding to a Republican attack on election integrity, but the narrative really falls apart when it comes to control of “the flow of information.” On that score, it is simply ludicrous to compare Trump’s late-night tweets to, say, the way the media imposed a complete blackout on news about the Hunter Biden laptop scandal.

What happened here in North Carolina is typical of what happened throughout the country. The Democrats kicked off their “fortification” campaign in the spring of 2020 by lobbying the General Assembly to further relax the state’s already very permissive absentee voting rules in ways that would have eliminated virtually all of the protective provisions designed to prevent voter fraud and ballot harvesting. After getting some but not all of what they wanted from the General Assembly, they moved onto the litigation phase, filing nine separate lawsuits challenging the new, even more permissive election laws on constitutional grounds. And when the courts in those cases also failed to give them everything they wanted, they adopted yet another strategy, one that had already proven successful in other states. They negotiated a “friendly” settlement under which the litigants in one of the cases agreed to drop their suit, and, in exchange, the State Board of Elections (SBE) agreed to ignore the duly enacted law and change the rules in all the ways the Democrats wanted despite the fact that the election was already underway and despite the fact that hundreds of thousands of votes had already been cast.

I call it a friendly settlement because the parties involved—the plaintiffs themselves, the SBE, the private lawyers representing the plaintiffs, the government lawyers representing the SBE, and even the presiding judge—were all Democrats who wanted the same outcome, i.e., to relax or eliminate the remaining protections against voter fraud and ballot harvesting. Throughout this process, which began in the spring and continued into the fall, it was the Democrats and the Democrats alone who sought to “change rules and laws” for partisan advantage. The Republicans only woke up to what was happening when the parties agreed to settle in late September. At that point they made a hastily organized attempt to stop it, by then it was too late.

In a piece discussing the unsuccessful attempt to stop the Democrats’ friendly settlement, I included this quote from Justice Kavanaugh’s concurrence in DNC v. Wisconsin, another case in which Republicans were fighting a rearguard action against a Democratic attempt to undermine duly enacted election laws:

[L]ate-arriving ballots open up one of the greatest risks of what might, in our era of hyperpolarized political parties and existential politics, destabilize the election result. If the apparent winner the morning after the election ends up losing due to late-arriving ballots, charges of a rigged election could explode. … [The] longer after Election Day any significant changes in vote totals take place, the greater the risk that the losing side will cry that the election has been stolen.

And in the conclusion I said:

It should also be noted that Kavanaugh’s point doesn’t just apply to receipt deadline extensions; it applies to any change that undermines public confidence in the outcome of an election. The Democrats have filed hundreds of lawsuits attacking laws designed to prevent election fraud and ballot harvesting, presumably because they think getting rid of those protections improves their chances of winning. By doing so, however, they are playing with fire. If the American people lose faith in the integrity of our elections, if they start to feel they can no longer count on a peaceful transfer of power from one administration to another, the consequences could be dire!

Kavanaugh called it, and so did I! Thankfully, the consequences so far haven’t been as dire as some of us had feared; nevertheless, given what happened at the Capital on 1/6, given that almost 40% of American voters no longer trust the electoral system, and given that Congress now feels it needs to protect itself from the public by a tall fence topped with razor wire and by thousands of armed soldiers, they’re still very concerning. It’s therefore interesting to note that the Democrats who engineered and carried out the “fortification” campaign still regard it as a huge success and intend to keep it going.

Marc Elias is the Chairman of Perkins Coie, the high-powered Democratic law firm that, among other things, arranged for the “dodgy dossier” that was the pretext for spying on the Trump campaign in 2016 and later formed the basis for the Russian collusion hoax. Elias was the mastermind behind the litigation phase of the fortification campaign and was himself the attorney of record for many of the lawsuits, including the one in North Carolina that succeeded in nullifying the state’s election rules through a friendly settlement. Regarding the election, in a recent interview Elias said, “We should celebrate how everything went really, really well,” but he also made it clear that the campaign to weaken or eliminate state laws designed to prevent voter fraud and ballot harvesting would continue because “disenfranchisement is still a huge problem.” “Some of that is partisanship,” he said, “But a lot is racism.”

Elias’s comments may have been a cynical attempt to justify future lawsuits designed to tamper with state election laws in ways that favor the Democrats, but it’s possible he really believes Republicans are racists who just don’t want black people to be able to vote. Heck, it’s also possible Molly Ball really believes the shadow campaign carried out by a “well-funded cabal of powerful people” was justified by the need to “fortify” the election against Donald Trump and his “henchmen.” And because that’s possible, I hereby withdraw my suggestion that Ball’s account could be accurately characterized as a lie. As George Costanza reminds us, “It’s not a lie if you believe it.

 

For more information see:

Fake news: AP says Republicans disrupting election in N.C.

What does an unsigned Supreme Court opinion from 2006 have to do with absentee voting in North Carolina?

Playing with Fire: Democrats’ Reckless Attack on State Election Laws