Restoring confidence in our government begins with confidence in our elections. Election confidence has two main components: transparency and process.
Much of the recent focus has been on transparency over matters such as vote totals and legal challenges not heard by our courts. Some people point to recounts and certified results as evidence of transparency. Other people challenge cardboard-covered windows at election centers, videos of ballot boxes pulled from under tables late on election night, and mid-election rule changes as bases for their “fraud” conclusions.
No matter how many times votes are counted and recounted, if ballots didn’t enter the system properly in the first place, and witnesses are prohibited from observing the process, citizens’ confidence in elections will remain justifiably shaken. And when courts — where evidence is brought to light and disputes should be settled — refuse to take cases, confidence will not be restored.
As greater transparency should promote confidence, states must focus on how each ballot enters the system through the election process. The profit-driven media has polarized the American people into thinking there are only two options: either there was no evidence of widespread voter fraud, and certainly not enough to overturn the election, or the election was stolen and citizens must unite to “stop the steal.”
In reality, there is a third alternative centered on the election process itself. So important is process that our Constitution holds it instrumental to fundamental fairness in both the 5th and 14th Amendments. American law guarantees legal process rights such as the rights to remain silent, to a jury, to legal representation, and to confront accusers.
Similarly, election process provides for voter registration, verification of eligibility, ballot submission, ballot tallying, audits, and certification. The details for casting ballots and questioning results are left up to each individual state legislature by Article 1, Section 4 of the U.S. Constitution.
If any election process adopted by a state is not followed, then citizens have a right to address their concerns in a court of law. The mantra of “nothing to see here, move on,” or “there was no evidence of widespread fraud” simply adds to the concern as people wonder, “What are they hiding? Why are they afraid to expose what really happened?” Federal law mandates election ballots be retained for 22 months following an election for the very purpose of being able to verify results should issues arise.
Yet, both sides have added to the uncertainty. One side claims victory, shuns the questioning of changes in the process, and now wants Congress to federalize those irregularities spawned by the pandemic in the 2020 election. The other side claims all irregularities amount to fraud. Our country needs to focus on reducing tensions and increasing trust. The path forward is for states, individually, to exercise their Constitutional authority by addressing the irregularities that occurred in 2020 and determine through the legislative process what is proper for future elections in their state.
Individual state legislatures are the proper place for this analysis to occur, not via the federal government through massive omnibus bills like “For the People’s Act” and “Freedom to Vote Act.” While the two bills were purposely labeled to mislead the American public, both failed. Any future version of such federal bills should similarly be defeated.
The real issue to be resolved is assessing how votes get into the system. In the proper setting it can be determined whether the means by which the votes entered the system were valid, and if such measures should be permitted in the future. Looking back, for example, contrary to their individual state laws was it proper for Pennsylvania to accept ballots three days after the election, or for Michigan to accept absentee ballots without signatures and incomplete addresses?
These irregularities, and those in other states, should be addressed by the respective state legislatures in guiding future elections. Knowing what actually happened and exposing such to daylight would be the best disinfectant and the best method to guide future elections. But, we will not know if we do not ask and look.
Recognizing that process matters and vigorously following established election laws is the best way to restore confidence in our elections, and in our government — not through Congress, but through states’ rights granted by our Constitution.
Mac Warner is West Virginia’s Secretary of State. He is a graduate of the U.S. Military Academy at West Point and the WVU School of Law.