Our local newspaper recently carried a lengthy report on the echoes in Montana of the claims that led to the January 6, 2020, U.S. Capitol insurrection. Among others, the paper provided statements from state legislators confirming their belief that the 2020 presidential election was rigged and was replete with fraud. These same claims were made by Senator Steve Daines and Representative Matt Rosendale, and continue to flood the web and social media. These allegations, started before the election, have been used, tweeted and re-tweeted by the President and voiced in numerous rallies and protests countless times.
All this is old news. But, two things struck me from reading the newspaper article.
The first was the oft-repeated statement that no courts have been willing to hear these claims of fraud. This is absolutely and unequivocally untrue.
In point of fact, as of January 6, 2021, President Trump and his allies filed 62 lawsuits in state and federal courts to overturn the election results in states the President lost. In 61 of these cases, state and federal judges (some of the latter being appointed by Mr. Trump) denied relief — variously, on the merits (i.e. no evidence was presented to substantiate the claim) or on procedural grounds (e.g. lack of standing). In the outlier lawsuit, the Pennsylvania judge ruled that voters had 3 days after the election to provide proper identification and “cure” their ballots. Moreover, on December 8 and 11, 2020 the United States Supreme Court denied relief in the two cases filed there. See:https://www.usatoday.com/in-depth/news/politics/elections/2021/01/06/trumps-failed-efforts-overturn-election-numbers/4130307001/
The second thing I gleaned from the newspaper article was that those who claim there was “overwhelming evidence of massive election fraud” are simply clueless about what evidence is.
Every state and federal court has written rules of evidence and there are statutory rules as well. See, for example Title 26, Chapters 1-3 and 10 of the Montana Code. In pertinent part, Montana law, § 26-1-101(2) and (4) provides: "Evidence" is the means of ascertaining in a judicial proceeding the truth respecting a question of fact, including but not limited to witness testimony, writings, physical objects, or other things presented to the senses. "Proof" is the establishment of a fact by evidence.
According to a legal dictionary, a “fact” is a circumstance, event or occurrence as it actually takes or took place; a physical object or appearance, as it actually exists or existed. An actual and absolute reality, as distinguished from mere supposition or opinion; a truth, as distinguished from fiction or error.
Thus, the operative rule is that evidence, to be admissible, to prove anything in any court, must be grounded in fact. The corollary is that simply claiming something is true, doesn’t make it so, unless you can prove the claim with admissible evidence. Thus, claiming there was massive election fraud or that the election was rigged is simply that, a claim, unless proved by evidence grounded in fact.
And, for all of Mr. Trump’s and his surrogates’ claims and theories of massive election fraud and rigged elections, there has not been one shred of proof supported by evidence grounded in fact presented to any court. Indeed, all the evidence has been to the contrary.
To that point, any Representative, Senator, or state public official who has actual evidence grounded in fact proving massive election fraud and rigged elections, is derelict if they haven’t turned that over to law enforcement already.
I suspect they haven’t, because there isn’t any. These claims are an empty suit — no proof, no evidence, no truth.
James C. Nelson is a retired Montana Supreme Court justice. He lives in Helena.