Time proved to be the enemy in proving election fraud

In election campaigns, we all should be wary of some candidates expressing their opinions in such a way to influence our perceptions of others since “Perception is not reality but, admittedly, perception can become a person’s reality” (Psychology Today).

This is a particular concern during times of competing forces, such as now, as President Joe Biden’s team and all the media, except Fox, are in denial of the obvious daily crisis at our southern border, service stations and food stores, pretending the border is “under control” (by whom?), inflation is temporary and saying to the citizens not able to afford gas “Let them buy an EV.”

Centuries ago, a similar set of competing forces in France began when King Louis XVI becoming king in 1774 began the turmoil of competing forces that led to the French Revolution (1789-1794 or 1799 as there are differing opinions on when it ended). 

These times inspired the French writer-historian Francis-Marie Avouet, with the non de plume of Voltaire (1694-1778), to say “Opinion has caused more trouble on this little earth than the plague or earthquakes.” A flash point for the revolution was the king’s supporter and lover Marie Antionette saying to those who could not afford bread, “Let them eat cake.”

The turmoil in 2022 in the polls showing that President Joe Biden is trailing the “competing force” of former President Donald Trump is causing members of the president’s party, such as Californian Congressman Adam Schiff, D-Burbank, to take actions to prevent losing their power. 

Since the Democrats support the president’s policies, the only course left open to them is the “Hillary” strategy of discrediting Mr. Trump by using the Jan. 6 “hearings” where the Democrats discuss anything they please without risk of any contra evidence or cross examinations of the statements attributed to others.

Congressman Schiff, whose district includes Hollywood, appears to follow the words of J. van Der Meulen of “In order to learn how to word your opinion, you must realize that having an opinion alone is not enough; you must be able to sell it” when he said Mr. Trump’s attorney general (Bill Barr) said he knew Mr. Trump had lost, as did his top advisers, legal team, daughter and even the candidate himself. Hopefully Harvard law taught Adam Schiff that these opinions, even if accurate, would not be permitted in a legal courtroom as they are not statements of fact.

These questions illustrate the importance of the time factor. On the election night of Tuesday, Nov. 3, 2020, President Trump won. Then every night between midnight to 8 a.m., his lead was reduced by the “found” votes so that by Friday night, Nov. 6, the count showed that he had lost. The president’s primary enemy became time as the states were scheduled to certify their elections on Dec. 8, leaving barely 30 days, minus courts celebrating Thanksgiving.  

The states recounted their votes, but this only recounted the votes in the system and did not address the illegal entries in the voting rolls, the irregularities in voting machines, the stuffing of ballot boxes, or the harvesting of illegal votes, which issues are covered by states’ laws. At this point it was apparent to me that the chances of Mr. Trump winning were miniscule while the strong presumption was false votes favored Mr. Biden. Once the ballots were separated from the envelopes, it would be impossible to prove in a court of law who these false votes were for which left the only effective remedy for a judge was to order another election, which was highly unlikely.

Attorney General Barr had his team verify compliance with federal laws, although federal laws do not address any of the issues listed above, before he resigned on Dec. 4, 2020, making his opinions after that date, hearsay. 

At that point, from my years representing national companies in various locations around the US, I knew that time reduced the minuscule chances of proving fraud, even it had occurred. 

Tick tock. The president had to create a trusted team of lawyers (who believed he won) to direct the litigation in various states after retaining counsel licensed to practice in, and familiar with, local rules and practices in the geographically diverse states of Arizona, Georgia, Michigan and Pennsylvania. Tick tock. The time restrictions required getting before a judge almost immediately, but courts rarely hear arguments before a case is started with the filing of a complaint. Tick tock.

The mixture of federal and state laws would require the filings in a federal court under the Federal Rules of Procedure where the defendants are permitted 21 days to respond and, usually, extensions of time to respond were granted. Tick tock. Mr. Trump’s team had to immediately file a motion to seek restraining orders to halt the certification process pending the court’s determination once they could present all the facts. Tick tock. The chances of success became the three “slim brothers”: slim, slimmer and slimmest.

In the time period and with the limited access to records or voting machines in Democratic-controlled states, the only evidence available was mostly affidavits of anecdotal experiences. The federal judges were faced with the ultra-serious request to stop the certification of elections without the evidence available by cross-examination of the affidavit swearers or any statistical proof that any fraud was sufficiently widespread to have altered the elections.

Again, tick tock. Time was the enemy of the Trump team as even a hearing by the most cooperative judges took time even if the judges “ruled-from-the-bench’ rather than “took-it-under-advisement.” 

Appeals to the Federal Courts of Appeals had the same time issues with Arizona being in the Ninth Circuit; Georgia, the 11th; Michigan, the Sixth, and Pennsylvania, the Third. My experience as a member of the Third, Sixth and 11th circuits is that important questions often are appealed to an “en- banc” hearing, meaning of all the judges in the court, and then to the U.S. Supreme Court as in the Bush v. Gore in 2000. 

Tick tock. The clock would win.

It appears the Jan. 6 committee is relying on the words of Arnold H. Glasgow of “The fewer the facts, the stronger the opinion.” However, in the spirit of Voltaire, there is hope as the turmoil in France under the “Biden-like” presidency of Emmanuel Macron just enabled the conservatives to receive enough votes to have a say in the politics of France. 

Tick tock. To the November elections in the U.S.

Brent E. Zepke is an attorney, arbitrator and author who lives in Santa Barbara. Formerly he taught at six universities and numerous professional conferences. He is the author of six books: “One Heart-Two Lives,” “Legal Guide to Human Resources,” “Business Statistics,” “Labor Law,” “Products and the Consumer” and “Law for Non-Lawyers.”