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Editorial Advisory Board: Lawyers and election fraud lawsuits

Federal Rule of Civil Procedure 11 — like Maryland Rule 1-311 — requires attorneys to sign pleadings.  Those signatures certify that the pleading has been filed in good faith, that there are legal grounds and evidentiary support for the pleading, and that the pleading has not been filed for improper purposes or delay.

The lawyers representing President Donald Trump in his challenge to the results of the recent election would do well to remember this rule.

For years, the president has claimed, without producing any evidence, that voter fraud is rampant in the United States.  President Trump established a Presidential Advisory Commission on Election Integrity, also called the Voter Fraud Commission, in May 2017. The Trump administration announced that the commission would review claims of voter fraud, improper registration, and voter suppression in connection with the 2016 election.

The commission was disbanded in January 2018 without making any findings at all, much less any findings to support the president’s claim that voter fraud accounted for Trump’s losing the popular vote in the 2016 election. Election experts have consistently disagreed with the president’s allegations of irregularity and fraud in voting.

Those claims have come to a head in the last week, with the president declaring that his loss in the recent election was directly attributable to the malfeasance of local elections officials and individual voter fraud.  Local elections officials, both Republican and Democratic, have strongly denied these allegations and have urged the president to offer any evidence in support.  He has not.

Instead, he has ordered his lawyers to file suit in a number of jurisdictions alleging voter fraud and failure to follow election law provisions. Most of those suits have been dismissed by skeptical judges, who have noted the lack of evidence to support the president’s claims.

Attorneys in those cases have contorted themselves to make credible arguments; in one hearing, after claiming that Republicans were not permitted to watch the vote count in Pennsylvania, the president’s lawyer was forced to concede that there were “a nonzero number” of Republican observers in the room.

Signed certification

In each of those cases, some lawyer likely signed a certification that the suit was filed in good faith, that there was evidentiary support for the pleading, and that the case was not filed for improper purposes. But the sharp questioning of the courts about the basis for these claims, and the inability of the president’s lawyers to provide evidentiary support, suggest that the lawyers may not have taken the requirements or the spirit of those certifications seriously.

“A lawsuit without provable facts showing a statutory or constitutional violation is just a tweet with a filing fee,” quipped Professor Justin Levitt of Loyola Law School in Los Angeles, alluding to the president’s frequent habit of using social media to convey his thoughts.

But that “tweet” has significant consequences. A recent poll found that 70% of Republicans no longer believe the election was free and fair — despite the lack of evidence of fraud and despite the assurances of elections officials. The president’s insistence on pursuing these lawsuits — and his lawyers’ willingness to facilitate that course of action — has the real potential to undermine the rule of law and the integrity of the electoral process.

Elections are an essential component of democracy. Ensuring free and fair elections should be a concern for all of us. If evidence exists of voter fraud or other irregularities, campaigns should bring that evidence to the attention of judges and judges should rule on those claims.

But baseless attacks on elections should be seen for what they are — a dangerous disregard for the democratic process.  Lawyers should not let their skills be used in the service of such destructive ends.

Editorial Advisory Board members Arthur F. Fergenson and Debra G. Schubert did not participate in this opinion.

EDITORIAL ADVISORY BOARD MEMBERS

James B. Astrachan, Chair

James K. Archibald

Arthur F. Fergenson

Nancy Forster

Susan Francis

Leigh Goodmark

Michael Hayes

Julie C. Janofsky

Ericka N. King

Stephen Z. Meehan

C. William Michaels

Angela W. Russell

Debra G. Schubert

H. Mark Stichel

Vanessa Vescio (on leave)

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.