What kind of evidence is needed to prove electoral fraud?

 

Just as President Trump's campaign is vigorously alleging electoral fraud in the 2020 election, so the Democratic Party and its mainstream media allies are proclaiming that there's no evidence of fraud.  Who to believe?  That's up to you - everything's in dispute at the moment, and there's a lot more heat than light on the subject.  However, it helps to pause for a moment and examine the categories of evidence that are, or may be, available to settle this dispute.

There are traditionally four kinds or types of evidence that may be admitted in court (although some argue for a great many more - I've seen up to 23 mentioned in one blog post).  I'm obliged to a useful summary provided by Sivin, Miller & Roche LLP for these abbreviated definitions.  More extensive ones are available in official, private and educational legal literature.

1. REAL evidence - "a thing, of any kind, that was present or used in the case being presented in court. Real evidence can include bloodied clothing, a mangled vehicle, a gun, a knife, money marked by anti-theft coloring and many other items."
2. TESTIMONIAL evidence - "the simplest type of evidence ... any statement made by a witness or other person during the course of the trial."
3. DEMONSTRATIVE evidence - "demonstrate[s] the testimony given by a witness. This is typically done using diagrams, maps, animations and other similar methods."
4. DOCUMENTARY evidence - "any type of evidence that helps to document the issue being discussed in the trial. For example, if the trial surrounds a breach of contract, the documentary evidence would be the actual contract that was breached."

See also the Federal Rules of Evidence for the legal framework within which evidence is admitted, tested and used in federal courts.  Most state court systems follow a similar framework, with local adaptations.  An expanded Summary of the Rules of Evidence, including how they may be applied in court, makes informative reading if you'd like to know more.

Evidence cannot be hearsay - a statement made by a third party, out of court, that is offered in court as evidence to prove the matter in question.  For example, for a witness to say "I heard my supervisor say that she'd been instructed by the administrator to falsify records" is hearsay evidence.  It's what someone (the first party, the witness) says that a second party (the supervisor) said about a third party (the administrator concerned).  In the absence of the second and/or third party to corroborate the witness's statement, and without any additional evidence to confirm it, that evidence cannot be tested, and is therefore inadmissible.

To be admitted in court, all evidence must be:

1. Relevant - It must relate to the case or allegation or charge in question.  Anything vague or general in scope, rather than directly relevant to the issue at hand, probably won't be admissible in court.
2. Material - To be admissible in court, evidence must be essential or necessary;  important or pertinent;  decisive;  of substantial consequence;  carrying weight;  of material significance.  Unnecessary, unimportant, inconsequential matters are not admissible.
3. Competent - Showing that the evidence offered is really what it appears to be;  authenticating it factually, historically, in connection with other evidence, etc.  If it can't be authenticated, it's not competent evidence.

Of course, opposing counsel will be doing their best to assert that any given piece of evidence is irrelevant, immaterial and/or incompetent, thus removing it from consideration.

Note that a mere conjecture or inference that something happened is not in itself admissible as evidence.  If President Trump's legal team allege that electoral fraud took place, they can't just do so on the basis of statistics that suggest it.  They're going to have to provide real and/or testimonial and/or demonstrative and/or documentary evidence to substantiate the statistics.  Without such evidence, they will probably have no case.  Of course, they're trying to gather such evidence as quickly as possible, and we're already aware of some parts of it - for example, affidavits from individuals claiming to be eye-witnesses to electoral fraud, and that sort of thing.  Those affidavits - which are potentially testimonial evidence - have yet to be admitted as such in any court, and/or tested against countervailing or opposing evidence, and/or the witnesses cross-examined by opposing counsel, to prove or disprove their veracity.  All that remains to be seen.

In the present case, to prove that electoral fraud affected the 2020 Presidential election, what sort of evidence is out there that we know of?

1. Real evidence - electoral rolls that contain the names of dead and/or otherwise untraceable or non-existent voters, some of whom can be proved to have voted;  source code or other evidence from software that calculates and/or tabulates electoral results;  etc.
2. Testimonial evidence - affidavits and sworn statements from witnesses claiming to have personally observed electoral fraud in operation.  These witnesses may be cross-examined during a trial, if one ensues.
3. Demonstrative evidence - Security camera footage;  news footage;  recordings of telephone conversations;  floor plans of voting and/or counting centers;  etc.
4. Documentary evidence - Instructions and record sheets from voting and/or counting centers;  guidance issued by electoral administrators;  software user guides;  prior court rulings that were or were not observed;  etc.

Arguments that there's "no evidence" for President Trump's claims ignore the very large quantity of evidence allegedly already gathered by his legal team.  However, that alleged evidence has not yet been tested in court.  We don't know yet whether some or all of it is relevant and material and competent.  That remains to be seen.

There are also many reports in the news media - both mainstream and fringe - that are speculative and unproven.  It's dangerous to point to such reports as evidence unless they're corroborated by trustworthy sources and/or other information.  For example, there have been widespread reports (like this one, for example) that US "armed forces" raided the "offices" or "data center" of an electoral services company, Scytl, in Frankfurt, Germany.  Those reports do not appear to be true.  The company has issued a formal statement denying them, and no US agency has confirmed them.  (Besides, the United States has no legal jurisdiction in Germany.  If a raid was to be conducted there, it would be carried out by German agencies, with the US at best in some sort of consultative or advisory role.  What's more, the US armed forces have no law enforcement role except inside our borders, and even then only in support of legitimate law enforcement agencies, unless martial law has been declared.)

Another factor in this particular case is time.  The presidential election and its aftermath are governed by a timetable determined by the US constitution and laws derived from it.  There won't be sufficient time to examine, test and admit (or reject) much evidence before everything is overtaken by the press of events.  Thus, any court case applying for that timetable to be suspended or overturned is going to have to provide very strong evidence, that can be quickly tested against the rules, in support of its case.  Failing such evidence, the application cannot succeed.  We can expect the other side to do its best to disqualify such evidence on the basis that it can't be tested timeously, and/or that it fails the tests outlined above.

This is why state courts probably won't be the ultimate venue for this issue to be decided.  They may come to a conclusion regarding events in their state, but that can't be applied to the nation as a whole.  In the same way, federal courts will refuse to intervene unless it can be clearly demonstrated that the issue affects more than one state, and is therefore (at least potentially) national in scope.  That's probably going to require state courts in at least two states to find in favor of President Trump's campaign, and/or for evidence to be provided to federal court that proves electoral fraud is a real, demonstrable problem that affects the results of the election nationwide.  That's a tall order.

Can it be done?  Can President Trump prove his case?  Right now, I'd say the odds are against him.  His legal team have to overcome enormous obstacles to prove that electoral fraud happened.  They must produce relevant, material and competent evidence that can be tested and found admissible in court.  What's more, they have to do so in time for the issue to be judged before the electoral timetable overtakes them.

On the other hand, members of his legal team sound confident.  Rudi Giuliani has said he's "never seen an election case with half this evidence of fraud".  Sidney Powell "told Lou Dobbs of Fox Business that she is going to 'release the Kraken,' and that she 'can hardly wait to put forth all the evidence we have collected on Dominion'."

As one who believes the statistical evidence that electoral fraud has corrupted the results of the 2020 Presidential election, I hope Mr. Giuliani's and Ms. Powell's confidence is not misplaced.  However, they don't have to convince me.  They have to convince state and federal courts . . . and that's going to be a very tough job.  In a few weeks, we'll know how they did.

Peter