America Is Overdue for a Conversation About When We Can Question the Validity of An Election

The hard reality is that sometimes national elections must be debated. Just not 2020.

In 2004, I ran a political website called The Nashua Advocate. The Nashua Advocate was dedicated to not only hard-nosed political analysis but also—unlike the curatorial “metajournalism” I’m involved with now—hard-news reportage using firsthand sources. Some of what I did back in the mid-aughts was closely tied to “OSINT,” meaning open-records research using very basic digital research techniques. Other aspects of my journalistic writing and research practice involved old-fashioned “shoe-leather” investigative journalism, or at least a twenty-first century version of it.

In other words, I spent quite a bit of time on the phone.

I can still recall speaking to then–Senate Majority Leader Tom Daschle’s chief of staff about a national scandal I helped break but that no one really remembers anymore. The scandal in question was known at the time as “Gannongate”—yes, we were still promiscuously “-gating” political scandals then—and the fact that no one remembers Gannongate anymore is astonishing when you consider the core facts of the event: a far-right, fake-news website had hired a gay male prostitute to pose as a White House reporter—and the Bush White House had complied with the plot by not only giving the man credentials but also privileged access to the President of the United States at televised pressers. Seems like the sort of thing the nation would remember, right? Well, it doesn’t, even though there was evidence at the time that the White House knew “Jeff Gannon” (real name: James Dale Guckert) was a fraud, and was using that very fact to ensure Bush would get at least a few softball questions from a White House press corps that was, Gannon/Guckert aside, terribly hard on the nation’s 43rd president (for some very good reasons). The Gannongate scandal also ushered in the era of far-right fake news—I mean literal fake news, as in produced by non-journalists with purely cynical political intentions, then packaged as neutral reporting—which of course would in a little over a decade after the scandal had ended deed us Donald Trump’s topsy-turvy conception of the basic premise of “fake news.” In the 2010s, “fake news” came to be understood as any news that businessman-cum-politician Donald Trump found unfavorable to his political ambitions; when we said news was “fake” in the mid-2000s, we meant exactly what we said.

I mention all this by way of saying that while I was certainly a progressive in 2004 and 2005, and while there’s no doubt that much of my political writing during that period was in the nature of what we now call “advocacy journalism”—and transparently so—I was also interested then, as now, in running down confirmable facts, and was pretty good at doing so.

So it’s with that temperamental predilection in mind that I say I watched with horror, along with the rest of America, as the 2004 presidential election came down to the vote in a single state—Ohio—where the conduct of the general election had been nothing short of a national tragedy. Like millions of Americans, I watched in open-mouthed outrage at the 14-hour voting lines (not a typo) in certain majority-minority precincts in Cuyahoga County, where Cleveland and a disproportionate percentage of Ohio’s voters are located. I couldn’t believe that any American had to wait for 14 hours (or in less egregious instances in northeast Ohio, “only” eight or ten hours) to vote. And I was especially struck by this, as I think many Americans were, because I could also see on my television screen that just minutes away from those terrifically awful voting lines in the Cleveland area were majority-white precincts where the wait-time to vote was between zero and ten minutes.

I felt there was a story there. So did many independent digital journalists of that era.

So we dug. And dug. And what we found, indeed with surprisingly little effort, was that the co-chair of George W. Bush’s Ohio campaign, Ohio Secretary of State Kenneth Blackwell, had moved hundreds and hundreds of voting machines out of majority-minority precincts in Cuyahoga County in the weeks before election day, putting them in majority-white precincts that had no use for them whatsoever. Incredibly, we found that Blackwell had prior access to reams of data telling him how many machines had to be in each precinct to ensure an orderly election in November 2004; he simply ignored that data in the hopes that doing so would lead to mass voter suppression in Ohio and a victory for his preferred candidate—a man who also just happened to hold Blackwell’s own political future in his hands.

Blackwell’s illicit gambit paid off. Bush won Ohio, and the White House, by a swing of about 59,000 votes.

Fifty-nine thousand votes certainly wasn’t the 537 votes that had separated Bush and Democratic candidate Al Gore in 2000, but it was close enough that the question could reasonably be asked whether the Democratic Party had lost tens of thousands of votes in 90%+ Democratic precincts in Cuyahoga County due to the exquisitely racist brand of voter suppression that Blackwell, who happened to himself be Black, had orchestrated via the misuse of his position. (And because the Republican Party always rewards its most avid vote-suppressing politicians, the Ohio GOP made Blackwell its candidate for governor in 2006. He lost, unlike the vote-suppressing villain of the 2000 election, Florida Secretary of State Katherine Harris, who the Republican Party of that era successfully launched into Congress.)

When it became clear what Blackwell had done, and when the scope of it confirmed that the voter suppression in Ohio in 2004 had not been limited to the Cleveland area but had consistently targeted Black voters across the state, and when that scope seemed to indicate that Blackwell’s actions could actually have changed the course of the 2004 presidential in Ohio and thus the 2004 presidential election nationwide—again, had Massachusetts senator John Kerry won Ohio, he would have won the White House—I and a number of progressives lobbied to have a U.S. senator join Ohio Rep. Stephanie Tubbs-Jones in challenging Ohio’s slate of Bush electors in January 2005.

I don’t know what we expected or hoped would happen. Frankly, the grotesquely evident misconduct of Blackwell—everyone had seen the hours-long lines in the Cleveland area on television, and Blackwell didn’t contest that he had engaged in a pattern of voting-machine redistribution, only that there’d been no racist or even political motive behind it—wasn’t really contested by anyone at the time. Instead, it was simply ignored. Much of the heat and light coming from the Democratic Party after the 2004 election had been on how resoundingly awful the exit polling had been (it showed a clear victory for Kerry in Ohio, among other battleground states he ultimately lost), even as the more conspiracy-minded members of the Democrats’ voter base were casting aspersions over the reliability of the Diebold voting machines used in Ohio and several other states. The head of Diebold was a notoriously fanatical Bush supporter, and some Democratic voters wondered whether the Republicans hadn’t had some electronic aid in November 2004, rather than just the tried-and-true Jim Crow-at-election-time kind.

When I and a band of progressive activists successfully convinced California senator Barbara Boxer to stand with Rep. Tubbs-Jones and contest Ohio’s electors, it was clear that Boxer—quite rightly—had little interest in pursuing either the Diebold angle or the exit-polling one. And there was good reason for her reticence on both scores: while one can forgive the voting-rights activists of the early twenty-first century for being suspicious of voting machines that could be hacked in minutes and were distributed by political partisans, there was no hard evidence of widespread vote-switching beyond a few isolated instances across Ohio; just so, by January 2005 enough statisticians had weighed in on the admittedly awful exit polling of the 2004 general election cycle to explain to the satisfaction of most Americans that it was only the polling that was bad, not the actual vote tally.

Instead, Boxer and Tubbs-Jones objected to the slate of Bush electors the State of Ohio sent to Washington in January 2005 for the obvious reason: no one should have to wait for 14 hours to vote in America, and certainly not when they have been targeted for such treatment purely because of the color of their skin. Moreover, no election in America should be considered “free and fair” when thousands and thousands of Black voters have been turned away from the polls because they are unable—due to age, physical health, the requirements of their employment, or simply the capacity of any person to stand in any place for any reason for 14 hours—to stay in line and cast a ballot. Boxer and Tubbs-Jones, and ultimately much of the Congressional Black Caucus, wanted their peers in Congress, and voters across America, to know that the 2004 election in Ohio had been unacceptable. It had not been free and fair, and the reality that it alone had been enough to give Bush a second term in the White House made that fact even more risible, if that were possible.

The “Boxer Rebellion,” as it came to be known (a satirical reference to the far-better-known Chinese “Boxer Rebellion” of 1899, an anti-imperialist popular uprising) ended up being successful—in a way. It led to the passage of HAVA (the Help America Vote Act) in Congress, though the Republicans thereafter ensured that HAVA would remain an unfunded mandate with little real impact on American elections.

Today, in 2020, we hear many smart people saying devoutly wrong things about how we should think about elections in America—things they wouldn’t have said in 2004, but are saying now because the circumstances are dramatically different. For starters, objections are being lodged in 2020 by Republicans, not Democrats, and they involve allegations of voter fraud rather than voter suppression; far more significantly, whereas there was ample evidence of Blackwell’s machine-redistribution scheme in Ohio in 2004, and whereas American voters who watched any television on election day in 2004 could see for themselves that something had gone gravely wrong in Ohio on that day, in 2020 there was no evidence whatsoever of widespread voter fraud. Every state certified its November vote tally without a finding of such fraud; more than 60 state and federal cases were dismissed without any finding of such fraud; and even the Trumpists pushing an illusory voter-fraud case to the American people on television and radio admitted that whenever they took their claims to court they were not, in fact, arguing fraud before state and federal judges—but rather the vagaries of relatively commonplace disputes between state legislatures and state courts as to the best practices in an election. In other words, they had no evidence of fraud to offer, only a series of manifestly weak legal arguments about election protocols during a global pandemic that no judge of any political bent or judicial philosophy took seriously.

Were Boxer and Tubbs-Jones wrong to object to the 2004 presidential election? Of course not. Their protest was symbolic—they had no intention or expectation that it would succeed, and any vote-whipping done on the matter was half-hearted at best (at least outside the Congressional Black Caucus)—nor were they asking for an election to be overturned, only for American media and voters and politicians of both parties to look at what systemic racism had wrought on our electoral infrastructure. They did not call Bush an illegitimate president; they did not make any serious call for a re-vote in Ohio; and they did not rely on evidence that was vigorously contested. Nevertheless, they let it be known that the 2004 presidential election in Ohio had been a tragedy.

The Democratic Party had a similarly good-faith argument available to it in 2000, though with slightly different contours. In the same way that responsible people of both parties note that presidential elections are decided by the Electoral College whether we like it or not—because the Constitution mandates that we conduct our elections as we currently do—the “one person, one vote” premise all American voters are presumed to believe in and that every Supreme Court from our founding has upheld presumes that every validly cast vote will be counted come election day. What Americans learned after the 2000 election in Florida was that a full recount of every vote in Florida would have revealed that more Floridians had awoken on election day in 2000 intending to vote for Al Gore than George W. Bush, and indeed more had actually done so inside the voting booth. The problem was that Gore had only called for recounts in several Democratic countries in south Florida, believing—wrongly, as it turned out—that he could only cut into Bush’s then 537-vote lead in counties where he had clearly run strong in November. In fact, there were many valid Gore votes waiting to be recounted across the State of Florida, but the tight post-election schedule and the political bent of the Rehnquist Court meant that they would never be tallied.

Was it reasonable, though, for Democrats to note in January 2001 that in an American electoral system that had lived up to its promise—something America’s has never yet done—Gore would have won both Florida and the White House? Of course. Because by January we understood that a statewide recount would have produced a Gore administration, and because in America we believe that all valid votes should be counted, whether they’re Black votes or white votes, in south Florida or the panhandle.

By comparison, when a political party wants to claim voter fraud rather than voter suppression; when it wants to allege a vast international conspiracy of anti-democratic villains rather than point to the transparently and nakedly political whims of a single state Secretary of State acting in bad faith; when it wants to call the ostensible winner of the presidential election “illegitimate” and demand a re-vote or—still wilder—the immediate installation of the losing candidate as president; when it wants to not only challenge one state’s electors but ten states’ electors, and do so not merely in symbolic protest but as a committed attempt to overturn the will of voters nationwide; the standard of proof is almost unimaginably high. It’s the sort of standard that prompts us to demand that a litigant win something like 60 out of 62 state and/or federal cases involving their allegations, not zero. It demands hard evidence confirmed by an independent body, and moreover some measure of bipartisanship. And it certainly can’t be the subject of a committed, dark money-funded disinformation campaign that extends from election day through January 6 and beyond.

In short, there are elections that occur in the United States that are something other than free and fair—and they must be called out as such. The challenges in 2000 and 2004 were principled ones, every bit as much as the thorough investigation into Russian interference in the 2016 election was richly warranted. We must not establish a rule today that national elections must never be challenged at any time or for any reason simply because Donald Trump and his allies’ “Stop the Steal” campaign was seditious and historically nefarious from its inception. And one reason we can’t offer a blank check to all future local, state, and federal elections is because the through-line between 2000, 2004, 2016, and 2020 is obvious: an unscrupulous Republican Party willing to do, say, and dare anything to advance a policy agenda that most Americans oppose.

Indeed, far from doing what many in media did in 2021 as a way to clear the path for their objections to Trump’s insurrection—denigrate the actions of Democrats in 2000, 2004, and 2016—journalists should acknowledge that those three elections and the one in 2020 share a common legacy: a rising anti-democratic sentiment within the Republican Party, which increasingly sees itself as unable to win elections except by stealing them. In all four election cycles, Republicans stomped on key precepts of American democracy to seize a single prize: the White House. We should no more denigrate Boxer, Tubbs-Jones, or the progressive activists who successfully lobbied those two courageous Democrats to take the stand they did than hail Trump and his minions for spitting on Black Americans’ voting rights in 2020 by contesting vote tallies exclusively in majority-minority cities like Milwaukee, Detroit, and Atlanta.

I’m proud of the work I did in 2004. And I’m proud of Boxer and Tubbs-Jones for standing up for all American voters. And given the direction the Republican Party continues to head in—and its longstanding, unwavering commitment to mass voter suppression, particularly the suppression of nonwhite votes—I have little doubt that at some point in the future, progressive American patriots will once again have to stand up and challenge the conduct of an election the GOP is attempting to steal. Let us not say anything now, in the shadow of Trump’s insurrection, based on transient facts rather than our abiding commitment to the fundamentals of American democracy.