Like taking a knife to a gunfight, foreign observers take unprecedented step of blasting Trump’s claims of a ‘stolen election’

European election observers have rejected the US president's self-fulfilling prophecy of fraud involving mail-in ballots. But they should bow out: his claims are not about demonstrable reality, but rather politicized possibility.

The German head of the Organization for Security and Cooperation in Europe (OSCE), Michael Georg Link, has told reporters that he was “very surprised” by President Donald Trump’s claims about postal ballot fraud, noting that, “We looked into this. We found no violations of the rules whatsoever.” 

Link also expressed surprise over Trump’s effort to stop the vote count in states where he claimed fraudulent mail-in ballots were being used to “steal” the election away from him and deliver victory to his Democratic challenger, former Vice President Joe Biden. “That is something that does need to be described as breaking a taboo,” Link said. “He has neither the right nor the possibility to do this. Responsibility for the count lies exclusively with states.”

Hey, Herr Link! Welcome to the jungle of American politics.

The OSCE had around 100 observers watching Tuesday’s election (although 18 states denied them access), something they’ve been doing since 2002. But this is the first time the mission has heavily reprimanded a US president for interference. Its preliminary report warned that the statements by Trump “were perceived by many as increasing the potential for politically motivated violence after the elections.”

But no-one – not even European outsiders who may not be au fait with exactly how things work over here – should have been taken by surprise by what’s transpired since November 3. President Trump all but provided a road map for his post-election antics during his first debate appearance with Joe Biden. “This is going to be a fraud like you’ve never seen,” the president claimed, alleging (without citing any evidence) that mail-in voting was vulnerable for fraud, and suggesting that these ballots might somehow be “manipulated.”

Trump’s position was sustained by Attorney General William Barr. In comments to CNN’s Wolf Blitzer in September, Barr blasted the decision to extensively use mail-in voting in response to the ostensible threat posed by the Covid-19 virus to voters required to appear in person at polling places on election day. “We’re a very closely divided country here,” Barr said. “People trying to change the rules to this, to this methodology – which, as a matter of logic, is very open to fraud and coercion – is reckless and dangerous and people are playing with fire.”

The potential for mail-in voting fraud is not something Trump and Barr manufactured out of thin air. In 2012, the New York Times took a position against “vote by mail,” noting that “the challenges created by mailed ballots could well affect outcomes this fall and beyond. If the contests … are close enough to be within what election lawyers call the margin of litigation, the grounds on which they will be fought will not be hanging chads but ballots cast away from the voting booth.”

There is no doubt that the election returns in the critical swing states of Pennsylvania, Georgia, Arizona, and Nevada are well within “the margin of litigation.” 

President Trump raised eyebrows when, on election night, he declared victory, claiming the ongoing count of mail-in ballots to be “a fraud on the American public.” Trump warned that the Democrats had been planning to rig the election for months and that new ballots would begin turning up in battlegrounds such as Pennsylvania. “We want the voting to stop,” Trump said. “We don’t want them to find any ballots at four in the morning and add them to the list.” Claiming that his goal was “to ensure the integrity” of the elections, Trump invoked judicial intervention as his last and only recourse. “We want the law to be used in a proper manner, so we’ll be going to the US Supreme Court.”

The threat of judicial intervention invoked by Trump was one he had been making for some time. “I think this will end up in the Supreme Court,” Trump said of the election the day after Supreme Court Justice Ruth Bader Ginsburg died, paving the way for Trump’s nomination and subsequent confirmation of Amy Coney Barrett to replace her, “and I think it’s very important to have nine justices.” (An eight-justice court could lead to a 4-4 split vote, which would return any decision against Trump back to the originating court, where it would stand as uncontradicted law.) 

Trump’s public embrace of the Supreme Court as the last recourse in his strategy for re-election only reinforced concerns among his political opponents that the president was stacking the federal court system with sympathetic judges. Trump himself alluded to this in comments made during a political rally following Ginsburg’s death. “Now we’re counting on the federal court system to make it so that we can actually have an evening where we know who wins,” Trump told his supporters. “Not where the votes are going to be counted a week later or two weeks later.”

Further exacerbating concerns about the link between Trump, the Supreme Court, and the use of the federal judiciary as a back-up plan to guarantee re-election is the fact that two of the lawyers Donald Trump is using to create a case for litigation are closely tied to Justice Brett Kavanaugh, whose nomination by President Trump led to an extremely divisive confirmation process that foretold many of the deep political divisions that now exist. Justin Clark played a central role in facilitating Kavanaugh’s 2018 confirmation through the Senate, while William Consovoy is a close supporter of Kavanaugh.

Both of these lawyers have played a vital role in the case that is central to what appears to be the most cognizable claim available to the Trump campaign when it comes to Supreme Court intervention: a pre-election challenge to a decision made by the Pennsylvania Supreme Court to extend the deadline by which mail-in ballots could be received and counted, so long as they were postmarked by November 3. Trump’s lawyers argued that it was the role of the Pennsylvania state legislature to make rules governing elections and asked the Supreme Court to strike down the Pennsylvania court ruling. 

The Supreme Court refused to hear the case, citing the closeness of the election, and not wanting to be unduly disruptive. However, an opinion by Justice Samuel Alito, who was joined by Justices Clarence Thomas and Neil Gorsuch, noted that the Supreme Court reserved the right to revisit the case after the election. The case, Alito noted, “remains before us” and could be decided “under a shortened schedule” after the election.

Alito’s opinion must be viewed in the light of a second contemporaneous opinion, Wisconsin v DNC, authored by Justice Kavanaugh. Here, he quotes a noted Constitutional scholar and law professor, Richard Pildes, who wrote in the Chicago Law Review that “[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.”

Professor Pildes’ analysis seems prescient today, more so now it has been given the imprimatur of the Supreme Court. Kavanaugh went on to write that states “want to avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election. And those States also want to be able to definitively announce the results of the election on election night, or as soon as possible thereafter. Moreover, particularly in a Presidential election, counting all the votes quickly can help the State promptly resolve any disputes, address any need for recounts, and begin the process of canvassing and certifying the election results in an expeditious manner.”

In case people are counting, Alito, Thomas, Gorsuch, Kavanaugh and Amy Coney Barrett add up to five Supreme Court justices, virtually guaranteeing Trump a 5-4 decision if (and this remains a big “if”) his lawyers can prepare a legally cognizable case for voter fraud and present it before the court. 

Michael Link and his team of OSCE election monitors can complain all they want about President Trump’s impropriety in labeling the 2020 US presidential election a “fraud” and seeking to invoke the Supreme Court in determining the outcome. 

Link’s outrage may play well to a European audience and among sympathetic ears within the Democratic Party, but it ignores the reality of present-day US politics, where Trump is appealing to a self-fulfilling prophecy that he himself predicted; one that relies not so much on the reality of voter fraud, but its perception. 

How the Supreme Court will decide on this matter is yet to be seen, but one thing is for certain - neither Mr. Link nor the OSCE is equipped to understand the jungle of American presidential politics, and they should bow out gracefully without further comment. They are bringing a knife to a gunfight, and they will lose.

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