The burden of proof should favor Trump in election fraud litigation
On Friday, President Trump tweeted something important. He asserted that Biden must prove that his votes did not result from fraud. People scoffed, but as a practical matter, Trump is correct.
Most people know about the different burdens of proof a plaintiff carries in court. In descending order of intensity, they are “beyond a reasonable doubt,” “clear and convincing evidence,” and “preponderance of evidence.” Practically, speaking, what do those mean?
Imagine that the plaintiff and the defendant are on opposite sides of a tennis court. The plaintiff serves first.
With that first serve, the plaintiff has to get his evidence — his proof about the facts he’s alleging — over the net onto the defendant’s side of the court. If the case requires only a preponderance of evidence, the evidence just needs to clear the net. If the standard is clear and convincing evidence, it needs to go about halfway onto the defendant’s side of the court. And if the plaintiff must prove something beyond a reasonable doubt, evidence must go to the farthest edge of the defendant’s side.
If the plaintiff cannot even do the bare minimum to get the evidence over the net, proving his case, the judge can direct that the defendant wins. However, if the plaintiff gets the evidence over the net and it travels the proper distance over that half of the court, it’s now the defendant’s turn.
The defendant does not have a burden of proof, so he doesn’t have to get the evidence to any specific point on the plaintiff’s side of the net. He just needs to get it over the net. There are two ways to do this: he can show that the plaintiff’s evidence is factually incorrect (lies or mistakes), or he can introduce more compelling counter-evidence.
If the defendants can’t do even that much, the plaintiff made his case, and the defendant couldn’t rebut it. The judge can immediately rule in the plaintiff’s favor.
However, if the defendant got his evidence over the net, the plaintiff has one more volley. He can prove that the defendant’s evidence is incorrect (lies or mistakes) or produce counter-evidence that’s more compelling. However, the plaintiff still has that burden of proof to get the evidence to certain zones on the defendant’s side of the net. If he can, he wins; if he can’t, he loses.
There’s an evidentiary wrinkle that applies here: “spoliation.” Spoliation occurs when a party intentionally destroys material that might be evidence in a case (even if the case hasn’t yet been filed) or must be retained as a matter of law (as is true with election materials). If you recall, Sidney Powell has stated that Dominion is destroying evidence.
If someone deliberately destroys these documents, there is a legal presumption that the documents’ contents support the opposing party’s contentions.
In Trump’s and Powell’s lawsuits, there are roughly three types of evidence:
1. Eyewitness evidence that (1) people voted illegally; (2) ballots were counted in secret; (3) ballots were forged, backdated, altered, or repeatedly run through counting machines; (4) there was no signature verification or the machines were altered to fail; and (5) campaign-watchers were blocked.
2. Expert witness data analysis showing that the pattern of votes (when and how mail-in ballots arrived, the number of votes relative to registered voters, etc.) are so anomalous that they could not happen naturally but had to have been altered by the fraud described in item 1, above, or by computer data manipulation.
3. Expert witness information about problems with voting machines (their origin, manufacture, vulnerabilities, etc.).
The extra wrinkle in this case is incontestable evidence that paper trails and electronic trails were deliberately destroyed.
To date, some courts (as, for example, this Obama judge) have said Trump has no evidence. In fact, Trump has massive evidence for all three categories — and certainly enough to get the election fraud claims over the net onto Biden’s side.
The real question is about Biden’s return volley. He must prove either that the eyewitnesses, the mathematical experts, and the equipment experts lied or are mistaken, or he must provide a compelling counter-narrative to explain how he got more votes than Obama did in 2008:
At a minimum, Biden must have eyewitnesses about signature verification, timely mail-in ballots, the absence of duplicate votes, properly functioning machines, etc. His problem is that the Democrats destroyed all or most of that evidence. On those issues, therefore, the missing evidence presumptively supports Trump’s case.
Now you can understand Trump’s tweet:
Biden can only enter the White House as President if he can prove that his ridiculous “80,000,000 votes” were not fraudulently or illegally obtained. When you see what happened in Detroit, Atlanta, Philadelphia & Milwaukee, massive voter fraud, he’s got a big unsolvable problem!
— Donald J. Trump (@realDonaldTrump) November 27, 2020
Trump is saying his teams can easily get his evidence to Biden’s side of the net. However, not only must Biden counter that evidence, but he’s horribly handicapped because of the presumption that all his missing evidence supports Trump’s case.
Put another way, Trump proved fraud (making a winning case), and Biden almost certainly cannot disprove it.