2022 elections are a referendum on 'the notion of election denial,' says top GOP lawyer

A prominent Republican election lawyer says the 2022 midterm elections are the first time the American public will render judgment on “the notion of election denial.”

“There are people running for office, including offices that administer elections ... in battleground 2024 states, who have at least indicated they don't believe election results or have faith in the system, and they would not certify results if they in fact were in positions of authority in the 2024 election,” said Ben Ginsberg, who represented multiple Republican presidential campaigns over the last few decades.

“How the voters actually vote will say a lot about the 2024 election, but also just the future of the country, and the undergirding principle that the popular vote actually does determine who wins, and not politicians stepping in to the place of professional election administrators,” Ginsberg said during a panel at the American Enterprise Institute.

Ginsberg was referring to politicians such as Kari Lake and Mark Finchem, the Republican nominees for governor and secretary of state in Arizona, who have both endorsed and echoed the debunked claims about rigged or stolen votes in the 2020 election. Lake and Finchem won their Republican primary contests by pushing falsehoods about 2020, and Finchem has said that if he had been secretary of state that year, “we would have won, plain and simple.”

In all, 10 Republican election deniers are running for secretary of state, the official who oversees election administration in most states. Two are not expected to win, but in Indiana and Wyoming, Diego Morales and Chuck Gray are expected to prevail easily. Six others are in competitive races in Michigan, Minnesota, New Mexico, Connecticut and Nevada in addition to Arizona.

In Nevada, former state legislator Jim Marchant is the Republican nominee for secretary of state. Marchant also promoted debunked falsehoods about 2020 and supported sending fake electors to Congress who would have thrown out the votes of over 700,000 Nevadans who voted for Joe Biden.

Marchant has also said that, like Finchem in Arizona, he would make it harder to vote by eliminating early voting and voting by mail, and that he would get rid of voting machines and require election workers to count all ballots by hand. Efforts by Marchant and like-minded allies in some Nevada counties are already causing serious uncertainty about election administration ahead of early voting that starts this weekend, the Washington Post reported.

At the AEI panel, which took place on Tuesday in Washington, D.C., Ginsberg’s co-panelists weighed in on the push for hand counting of ballots.

Donald Palmer, a commissioner at the U.S. Election Assistance Commission (USEAC), said hand-counting ballots itself makes the process “susceptible to voter fraud” by putting the process in the hands of biased human beings rather than machines that are tested in “accredited labs,” by the USEAC itself and by the states.

“You have multiple layers of testing” by “nonpartisan people and organizations,” said Palmer. “Then we do an audit afterwards.”

Ginsberg concurred. “When people do hand recounts, there are political preferences that the counters have. Machines do not have political preferences,” he said.

The hand-count and recount requirement would also bog down the process in a “morass” of litigation over challenges to the particularities of how some ballots might have been counted or handled differently in one place versus another, the panelists said. And, they noted, the election results would be slowed down dramatically by a hand count.

“It would be Christmas before you had any initial results, and January or February before you had official results,” Palmer said.

Fellow panelist Lori Scott, former supervisor of elections in Brevard County, Fla., said even that was too optimistic. “I think you'd be waiting until Easter,” she said. “It takes 15-plus minutes just to read our general election ballot.”

Scott expressed exasperation that “people don't trust equipment that is tested and retested but will trust a human that is hand-counting it.”

Finally, Ginsberg, who is co-chair of the Election Official Legal Defense Network, said threats and harassment have had a “pretty overwhelming” effect in driving many experienced election administrators out of the profession.

An FBI report this year said there were “over 1,000 contact reports to the Threats to Election Workers Task Force in which election workers deemed the contact threatening or harassing.” The Justice Department and FBI “determined 11 percent met federal criteria for further investigative action.”

“Ours is a system that runs on professional administrators and lots of volunteers,” Ginsberg said. “And the more trauma and drama you have ... that's going to take a toll on the people who actually make this system work.

“And at that point the whole country suffers,” he said.