By Tom Rogers and Timothy E. Wirth
An integral part of the Trump campaign strategy to undermine the legitimacy of the November election is to deploy 50,000 “poll watchers” into the field to challenge the validity of votes cast, particularly in swing states. Among these election disruptors will be a heavy contingent of lawyers who will be filing legal challenges geared toward both undermining the legitimacy of election results and denying the validity of vast numbers of cast votes.
While these legal challenges will be mounted under the pretense of preserving voting integrity and ensuring illegal ballots have not been cast, those bases will thinly veil their true, nefarious purpose—to deprive minority and urban voters of having their votes counted. To underscore the voluminous number of legal actions planned, the chief counsel of the Republican National Committee said legal work is “going to be on steroids this year.”
By definition, it will be lawyers pursuing these actions. But in most, if not almost all instances, the lawyers bringing them will be unable to make the most basic, required representations to the court—i.e., that the lawsuit is not “being presented for an improper purpose,” and that the contentions contain a “nonfrivolous argument” regarding the application of law. In reality, these lawsuits will be brought for the purpose of depriving hundreds of thousands, if not millions, of voters of their constitutional right to vote, and will contain frivolous legal arguments to that end.
Think about that a minute—lawyers being used to file frivolous actions that are not supported by meaningful evidence to deprive people of their constitutional right to vote. As much as President Donald Trump has tried in many ways to subvert our system of constitutional government, it is the lawyers supporting this “cancel vote culture” tactic who will lead to post-election chaos. Lawyers should not be party to these attempts. They should not serve as the enablers of efforts to overturn legitimate election results by attempting to subvert the suffrage rights of American citizens.
Lawyers are members of state bars, where they have sworn to uphold the Constitution, not undermine it. State bar associations are charged with upholding the integrity of the profession, which often includes bringing disciplinary action against lawyers whose unprofessional or unethical conduct would otherwise compromise that integrity. Trump’s campaign lawyers should not get a free pass to act as Trump’s agents in an attempt to reverse the election results. So the question becomes, what are state bar associations going to do to forewarn campaign attorneys that the filing of frivolous actions intended to thwart the exercise of a citizen’s constitutional right to vote will be subject to scrutiny, potentially warranting disciplinary actions? Allowing lawyers to act without constraint in an attempt to invalidate the most sacred right of any citizen would be a complete dereliction of basic bar organization responsibility to make sure the ethical conduct of lawyers is appropriately policed.
The state bar associations in the key swing states—Maine, Florida, Pennsylvania, Ohio, Michigan, Wisconsin, Colorado, Arizona, Montana, North Carolina, Georgia and Iowa—need to issue a statement to any attorneys in their states participating in election activity making known that 2020 election-related litigation will be scrutinized, and frivolous lawsuits brought to deprive citizens of having their vote counted will not be tolerated. While the Trump legal challenges will claim there is a substantial evidentiary basis for alleging that certain votes should be invalidated, given the history of mail-in ballots, it is quite apparent that most of these claims will be lacking in any meaningful support, and therefore, in all likelihood, will constitute an abuse of the legal process.
Bar associations and state bar disciplinary panels need to recognize that both presidential campaigns will deploy many lawyers in their state in an effort to oversee the election process. However, only the Trump campaign has already questioned the integrity of mail-in voting and declared that if Trump is not re-elected, the election will have been “rigged.” Despite all the Trump talk that mail-in ballots will generate election fraud, there has never been any meaningful evidence that there is a relationship between mail-in ballots and fraudulent voting. Trump (who, ironically, regularly votes by mail-in ballot) is simply reacting to the reality that more Democrats will vote by mail than Republicans. Accordingly, he has grabbed this issue between his teeth for purely partisan purposes, divorced from real concerns about voter integrity, and with a very real goal of hoping to create post-election chaos.
The legal challenges filed will be the hammer used to nail that goal. Not only will they create delay, but they could also lead to so much confusion about election results that courts could set in motion processes that will undermine what would otherwise be Biden swing-state wins and an Electoral College victory. The Trump strategy in this regard is to lay the groundwork for judicial decisions based on post-election chaos the lawsuits create, so the election is decided by what may well be a more favorable forum for him—namely Congress, under procedures established by the 12th Amendment or the Electoral Count Act of 1887, where Republicans now have the edge in any such decisive congressional vote. Trump campaign lawyers must not be led to believe they have free rein in bringing about such a calamitous result.
Lawyers need to be part of the solution in preserving the integrity of the election, not the problem. They need to be the bulwark of a “citizens’ firewall” to prevent the overturn of legitimate election results. Thus, we call on every relevant state bar association to proactively caution lawyers involved in the election oversight process that instituting frivolous legal actions lacking substantial evidence will be grounds for disciplinary proceedings. Again, when Trump has already declared that if he loses the election it will have been fraudulent, based on zero evidence supporting his contentions, it is easy to see that having zero evidence will not constrain lawyers representing him from filing post-election actions when Trump directs them to do so.
We are keenly aware of the constructive role lawyers can play in bringing litigation that secures the rights of citizens to vote. And we do not intend to suggest that every single challenge to the legitimacy of certain votes is automatically unethical or frivolous. However, when lawyers will have such a large role in shaping the workings of the democratic process—the right of all eligible voters to have their vote counted—they must be held to a standard that is as high as that principle is fundamental to our constitutional democracy.
To paraphrase one very eloquent lawyer, Michelle Obama, “When they go low, lawyers must go high.” We know there are many lawyer jokes that could be tucked into this piece at this point, and most readers are probably thinking about their favorite. We will spare you that, and instead simply implore all state bar boards and associations with ethics oversight responsibilities to make sure lawyers do not undermine the election process, or they will do a lot more damage than being a bad joke.
Tom Rogers is an editor-at-large for Newsweek, the founder of CNBC and a CNBC contributor. He also established MSNBC, is the former CEO of TiVo, currently executive chairman of Engine Media and is former senior counsel to a congressional committee.
Timothy E. Wirth represented Colorado in the U.S. House and Senate, was Undersecretary of State and recently retired as president of the United Nations Foundation.