Ken Blackwell is Senior Fellow for Human Rights and Constitutional Governance at Family Research Council. This article appeared on CNSNews.com on February 9, 2021.
Today marks the beginning of former President Donald J. Trump's unconstitutional impeachment trial. Without his appearance, the media will not be able to concoct an excuse not to cover his lawyers' presentations on the constitutional and statutory violations that cast a shadow on how the November 2020 election was conducted.
I have spent half a century in public life, with a special focus on elections, both here in America and abroad. And like anyone who has been a candidate for office can tell you, in every campaign you need to take stock of your strongest issues and make those the centerpiece of your pitch to the voters. You communicate those issues to voters in language carefully selected to minimize your opponent’s ability to twist your words into something that misleads the public and unnecessarily costs you votes.
This is all the more true for presidential politics. I administered the presidential elections in Ohio in 2000 and 2004. In that second election, Ohio was Ground Zero for the nation. If John Kerry had flipped just 60,000 votes, he would have beaten George W. Bush to become president of the United States.
I also know what it is to be wrongly accused of violating election rights. Democrats accused me of short-changing Ohio Democrat stronghold Franklin County of voting machines, even though in Ohio the decisions they were critical of were made by the 88 county elections boards, and the elections board of Franklin County was led by – you guessed it – a Democrat.
Once I was even involved in objections raised in the Jan. 6 joint session of Congress. Democrats in the House and Senate objected to counting the Bush electors from Ohio, arguing that I had suppressed black votes (despite being black myself), and therefore that Ohio’s results were not valid.
Even though those attacks were false, I acknowledge that Democrats in the House and Senate had the prerogative in 2005 to voice their objections during that joint session. It is an ominous sign of the current cancel culture that for raising objections in 2021, House and Senate members are threatened, and corporations announce that they will cut off campaign contributions to those lawmakers.
Hopefully, that range of experiences puts me in a position to offer some insight into the challenges of the impeachment trial and how Team Trump might channel it in a direction to foster positive outcomes.
This will be the second time I offered advice to the former president. The first was when I advised his reelection campaign that when referring to President Trump’s commitment to keep American neighborhoods safe and to support our men and women in law enforcement that he should use a phrase like “public safety and rule of law” rather than “law and order.” I did this because there are two groups for whom “law and order” can carry a negative connotation, especially after references to Secret Service using “vicious dogs” to protect the White House.
The first is black voters. “Law and order” was used in the 1950s, 1960s, and 1970s as a code for racial suppression, where white politicians would use it as justification for mistreating black Americans and suppressing black votes. It brings back memories of Bull Connor, fire hoses, and large police dogs attacking black protesters. Areas like the Atlanta suburbs in Georgia are teeming with affluent black Americans for whom the phrase brings back scary memories for middle-aged and older black Americans, and disturbing stories passed down by parents and grandparents to younger black Americans in their 20s and 30s.
The second group is suburban white voters. College-educated middle-income and higher-income white Americans who live in the suburbs and are moderate in their politics have become very sensitive to what they believe to be racially insensitive rhetoric. In recent election cycles, this has been especially true for suburban white women (often called “soccer moms”), and in 2020 we saw this shift among suburban white men as well.
Some on Trump’s campaign team thought that “law and order” were okay because Richard Nixon had invoked it in 1968 in what was in some regards a similar political climate to 2020, but they were wrong. In 1972, Nixon used as a foil George Wallace, who was openly racist, and used the same phrase “law and order.” Nixon triangulated off of Wallace to chart a middle course, using the same phrase to channel people’s frustration but then making campaign ads that showed unruly white rioters, not black.
But there was no third-party candidate in 2020 to pivot off of, so even though Trump used the phrase to refer to supporting police officers and protecting innocent people from angry mobs – especially protecting black Americans in high-crime areas – Democrats and the establishment media were able to falsely accuse Trump of racism. The term “safety and security” would carry the positive message that Trump wanted to convey, without opening himself to unfair and slanderous accusations by his opponents.
Although my recommendation was stiff-armed at the time, some folks have since come back after examining the polling data admitting their mistake, which might have cost us votes in key battleground states.
So I hope Team Trump takes my advice on this one, which could help DJT prevail against this unconstitutional impeachment trial, help rehabilitate him in the eyes of millions by showing them the valid points the president has to make, vindicate his supporters in the House, and Senate who should not be condemned for following the constitutional procedure, and foster much-needed reforms.
Rumors around D.C. are that President Trump wants his impeachment lawyers to focus on conspiracy theories about computer software, voting machines, and foreign interference.
I do not know if any of that is true, but I do know that the polls show that a majority of Americans are not onboard with wide-eyed conspiracy theories that sound like the plot of a spy-thriller movie, so the former president and the Republican Party would be better served by focusing on the following:
Article II of the Constitution says that members of the Electoral College in each state will be appointed in a manner determined by the state legislature. In modern America, that is done in each state by a statewide popular election held on the federal Election Day.
Yet in several key battleground states, those laws were rewritten by administration officials or by state judges, in violation of the U.S. Constitution.
Like in Pennsylvania, courts ordered ballots to be accepted three days after the deadline set by the legislature in law, and over 300,000 ballots were counted in massive convention halls where the candidate’s legally authorized observers were kept at a distance, unable to examine a single ballot.
Or in Wisconsin, where 220,000 absentee ballots were allegedly counted in violation of state law. In a 4-3 decision, the liberal-led Wisconsin Supreme Court refused to rule on their legality, holding that the lawsuit should have been filed sooner, with the three conservatives on the court railing in dissent about how the ballots were definitely illegal and that Wisconsin’s election laws were being trampled underfoot.
Or in Georgia, where Trump’s campaign lawsuit specified that the number of ballots cast of people who the Postal Service says moved out of state exceeded Joe Biden’s margin of victory in that state and that thousands more were cast by convicted felons (who cannot vote in Georgia), by people who listed a P.O. box as their residence, or by people who listed no address. The lawsuit alleges that over 60,000 ballots were illegal in a state where Biden’s margin was 12,000.
That Georgia case specifically irritates some election lawyers I have spoken with because it was never given a court hearing. Lawyers filed suit on Dec. 4, yet when Congress convened on Jan. 6, there had still been no hearing to consider the evidence and rule on the truth of those claims. That is a denial of due process.
In each of these states, Biden appears to have been the beneficiary of these deviations from state election laws. Republicans in several other battleground states with close margins claim that their elections were similarly marred.
None of this necessarily involves any deliberate fraud. But these irregularities and constitutional violations taint those ballots, and lawyers in those states argued that under the laws of those states, they should not have been counted. Even if it is possible that Biden might have won those states, members of Congress were entirely within their rights to raise objections, just like Democrats objected to my election results in 2005. None of that is an attempt to overturn an election; it is an attempt to determine who actually won the election.
President Trump needs to focus on these massive irregularities and the unconstitutional rewriting of the state legislature’s election laws by administrators and courts. At a minimum, it gives tens of millions of Americans reasonable doubt as to which candidate actually won the statewide contest in those very close states – some of the states listed above were decided by less than one percent – and these doubts are toxic to the long-term health of the American republic.
Focusing on these irregularities are what will show that those who raised these objections – like Sen. Ted Cruz and Sen. Josh Hawley, and over 140 House members – were raising completely legitimate points, not trying to undo an election. It will also show that Trump was trying to shine a spotlight on all this, perhaps laying the foundation for a 2024 rematch by impressing upon the nation that this election was so flawed that he had a right to try again. That worked for Andrew Jackson in 1824 who came back in a win in 1828, and my friend Newt Gingrich – who was a historian before he became Speaker of the House – has noted similarities in temperament and style between Trump and Jackson.
By focusing on these irregularities and constitutional violations instead of conspiracy theories, Trump could also spur serious election-law reform efforts in 2021 and 2022, as states look at how terribly wrong things went with mail-in ballots, early voting, no-excuse absentee voting, and abandoning verification measures such as checking signatures and requiring witness information to be fully listed on envelopes.
This focus would also show that the establishment media is flat-out lying when it says that claims of election problems are unfounded. The point about Georgia alone – where there was never any court hearing – by itself proves the media’s claim that the courts have rejected these issues is false. I am convinced that those false media claims further stirred up public frustration, as millions of Americans thought no one was listening to them, and that those who should have been giving voice to their concerns were instead calling them liars or fools.
This proposed presentation would also serve the nation well by highlighting the recurring nightmare that would be visited on America every two years if H.R. 1 – the For the People Act – were to become law, as that ill-conceived legislation takes everything that caused controversy and conflict in the 2020 election and would make it a permanent feature of elections in every single state going forward.
As I have explained in previous articles, the upcoming Senate impeachment trial of Trump is unconstitutional. But if the former president focuses on these issues in the trial with full presentations that the American people can consider and debate, his contribution to the public debate may yet result in public reforms to ensure that nothing of this sort ever happens in America again.
Reforming and restoring our election process is surely part of making America great again.