Below is my USA Today column on the need for a federal commission for the 2020 election. While defying the challenge and request for a ten-day commission, I believe a real commission is warranted. Indeed, the violence yesterday only further shows the deep divisions in this country over these lingering issues. However, there must be a commitment to a real commission – not any other placebo commission
Here is the column:
I hate federal commissions. I’ve always hated federal commissions. Federal commissions are Washington’s way of dealing with scandals. They act like placebos against political fever, convincing voters that answers and changes are on the way. That is why it is so difficult for me to pronounce these words: We need a federal election commission. Not the one suggested by some Senate Republicans. And not like previous placebo commissions. An honest, unreserved federal commission dealing with the 2020 presidential election.
Faced with the challenge of confirming votes, some Republican members of Congress are calling for the process to be postponed for 10 days and for a commission to “review” the results. There is a precedent for such a commission. Just not a good precedent. Indeed, citing the Election Commission of 1877 as a model of a good constitutional process is like quoting the Titanic as a model of good maritime shipping. The commission was a complete disaster.
The Election Commission of 1876
The commission was formed after the controversial presidential election of 1876 of the Democrats Samuel Tilden and Rutherford Hayes. Tilden won the referendum and was only one vote less than the electoral votes required to win the White House. The election was marred by overt fraud, including the confirmation of 101% of the electorate by South Carolina.
As a compromise, the commission was formed and consisted of 15 members: five judges from the Supreme Court and five members from each Congress Chamber. The key was that it should consist of seven Democrats, seven Republicans, and one Independent. In a move that seemed to secure his vote for Tilden, the Illinois legislature appointed Independent Judge David Davis to the Senate. If they wanted to buy his vote, it was a colossal failure when Davis decided to take the place and leave the commission. He was replaced by a Republican, and the commission voted strictly partisan to install Hayes, not Tilden.
In many ways, the Electoral Commission has been a model for most federal commissions designed for good politics rather than good government.
One example is the 9/11 Commission, which was staffed with reliable allies to ensure that no one – and no party – is held responsible for the negligence that led to the attacks.
The commission spent two years and millions of dollars. It went to nearly a dozen countries, interviewed more than 1,000 people, and archived over 2.5 million pages of documents. The result was a report that blamed no one and has since concluded that Presidents Bill Clinton and George W. Bush were “not well served” by the FBI and the CIA, according to the chairman of the commission.
You see, when everyone is responsible, nobody is responsible. Although it was shown that the attacks could have been prevented under the applicable laws and authorities, the budgets and authorities of both agencies have been massively increased.
We do not need that. There are three reasons a real commission is required:
►First and foremost, this was an unprecedented choice in terms of mail-in voting and the use of new voting systems and procedures. We have to check how it worked down to the smallest districts and hamlets.
Second, tens of millions of voters may believe that this election was rigged and stolen. I am not one of them. However, the integrity of our elections depends on the belief of the voters.
Around 40% of these voters still have doubts as to whether their votes really matter. Most of the cases in which the election has been challenged were not decided on the merits. In fact, they don’t even seem to have been allowed to be discovered. Instead, they have largely been fired in judicial or standing groups, or under the “laughs” doctrine of being late. These claims must be definitively proven or refuted in the interests of the country.
Third, there were problems. There was no evidence of systemic fraud or irregularities, but there were issues with votes not being counted, the loss of critical custody information, and material differences in the rules for voting and tables.
We have spent billions to be safer and more reliable after controversy in previous elections. In fact, we had a previous electoral commission that failed to achieve these basic goals.
The importance of a commission
It will take a real commission a few years to fully address these allegations. It will be meaningless if stacked from the same reliable political clippings that have historically been used in federal commissions. It should be based on a commitment to full transparency in public hearings and the public archiving of the underlying material prior to the publication of a final report. This allows the general public to analyze this evidence and contribute to the review.
There is another task for Congress. It was intended to repeal and replace the election census law passed after the Hayes-Tilden election. It’s one of the worst-designed and most poorly designed federal laws on the books. The constitutionality of this law has long been questioned, including some who have argued that Congress only plays a purely ceremonial role in opening and counting state certifications.
The courts are likely to recognize that Congress has a more substantial role to play, especially when competing constituencies are presented or when there is clear evidence of fraud. However, the validity of such votes should largely be left to the courts in the event of challenges in the respective states. Therefore the current challenge is not justified. There is no serious basis for questioning the validity of state-approved votes.
Reality check for Trump’s fantasies:Judges are not his pawns in election lawsuits.
The main challenge, however, remains the same: whether Congress can appoint a true federal commission without manipulating the outcome by appointing partisan members. To quote from an 1877 speech by Senator Allen Granberry Thurman of Ohio: “It was perfectly clear that any bill that gave either party the slightest advantage, the weight of the dust in the scales, could not become law the country.”
Nothing has changed. The stakes are too high for even dust particles to make the difference in the final results. The dust-free option requires a dependent, not independent, commission. Otherwise the public will be the loser.
So let’s have a commission, but let’s make it a real one.
Jonathan Turley is Shapiro Professor of Law of Public Interest at George Washington University and a member of the USA TODAY Board of Contributors. Follow him on Twitter: @JonathanTurley