Drawing a Portrait of Confidence: One Resolution to Legitimate Voter Concerns in the Shadow of Illegitimate Violence

• Author: Shane Sanderson
• Position: J.D., Georgetown University Law Center (expected May 2023); B.J., University of Missouri (2017)
• Pages: 1117-1133

Drawing a Portrait of Confidence: One Resolution

to Legitimate Voter Concerns in the Shadow of

Illegitimate Violence

SHANE SANDERSON*

INTRODUCTION

Shortly after being declared the loser of the 2020 Presidential election, Donald

Trump submitted a series of challenges to the certification of votes and transition

of power.

1

See, e.g., Ann Gerhart, Election Results Under Attack: Here are the Facts, WASH. POST (updated March

11, 2021), https://www.washingtonpost.com/elections/interactive/2020/election-integrity/. [https://perma.cc/

X8BR-D9UW] (“[Former president Donald Trump’s] campaign and others went to court in six states, where

Biden’s total margin was more than 311,000, to challenge certain ballots or the certification of the vote—and

lost more than 60 cases, including at the Supreme Court.”).

Litigators either representing Trump or closely connected with him

alleged that the loss was attributable to election fraud.

2

See, e.g., Jon Swaine & Aaron Schaffer, Here’s What Happened When Rudolph Giuliani Made his First

Appearance in Federal Court in Nearly Three Decades, WASH. POST (Nov. 18, 2020), https://www.

washingtonpost.com/politics/giuliani-pennsylvania-court-appearance [https://perma.cc/KY6A-QFGA] (“The

president’s attorney opened his appearance in court with a broad claim: that the Trump campaign was alleging

‘widespread nationwide voter fraud.’”); Aaron C. Davis, Josh Dawsey, Emma Brown & Jon Swaine, For

Trump Advocate Sidney Powell, a Playbook Steeped in Conspiracy Theories, WASH. POST (Nov. 28, 2020),

https://www.washingtonpost.com/investigations/sidney-powell-trump-kraken-lawsuit [https://perma.cc/JLH8-

BPCC] (stating that Sidney Powell was not representing Trump “in that Powell had not yet been paid by the

campaign” but that “the banishment became not a defeat but a new opportunity”).

In support of the fraud

narrative, political allies drew in part upon statements by computer science and

election security experts that election technology security has been fraught for

decades.

3

See, e.g., Lindell TV, Mike Lindell Presents: Absolutely 9-0, https://home.frankspeech.com/video/mike-

lindell-presents-absolutely-9-0/ (last accessed April 17, 2022) (quoting University of Michigan Professor J.

Alex Halderman who stated: “I know America’s voting machines are vulnerable because my colleagues and I

have hacked them—repeatedly”).

The legal challenges those claims supported have universally failed

and at least some lawyers filing them have begun to face disciplinary proceed-

ings, financial consequences, or both.

4

See, e.g., Rosalind S. Helderman, Judge Orders Two Lawyers Who Filed Suit Challenging 2020 Election

to Pay Hefty Fees: ‘They Need to Take Responsibility’, WASH. POST (Nov. 23, 2021), https://www.

washingtonpost.com/politics/they-need-to-take-responsibility-federal-judge-orders-hefty-fees-assessed-against-

two-lawyers-who-filed-suit-challenging-2020-election [https://perma.cc/4SFR-UYNJ] (reporting that a federal

judge ordered two attorneys who filed an election lawsuit to pay $187,000 of the defendants’ legal fees);

Shayna Jacobs, Rosalind S. Helderman, & Devlin Barrett, Giuliani’s N.Y. Law License Suspended in

Connection with Efforts to Overturn 2020 Election, WASH. POST (June 24, 2021), https://www.washingtonpost.

com/national-security/rudy-giuliani-law-license-suspended [https://perma.cc/L24G-L78S] (reporting that New

* J.D., Georgetown University Law Center (expected May 2023); B.J., University of Missouri (2017).

© 2022, Shane Sanderson.

1.

2.

3.

4.

1117

Many of the lawyers involved in the Trump-election litigation presented out-

right lies, both to the public and to the courts.

5

And it is at least in part because of

the bald-faced nature of the lies made in court that they are subject to disciplinary

authorities.

6

But attorneys are not always required to be truth-tellers. And in

some instances, their ethical obligations may even require them to misrepresent

their client’s circumstances.

7

In the Trump election cases, however, lawyers’ lies

undermined confidence in the democratic process and threatened a unique harm

to the function of our government.

8

York suspended the law license of Rudolph W. Giuliani in connection with communicating “demonstrably

false and misleading statements . . . in his capacity as lawyer for” Trump).

Id. at 115. (“Lawyer lies about the outcome of a valid election, whether told in chambers or in a press con-

ference, risk causing unique, devasting harm to our democratic form of government and should not be tolerated

by members of our profession. Indeed, philosopher Jeremy Waldron calls these types of lies ‘among the worst

kinds of lie to tell. They are libels on democracy.’”); see also, Voter Confidence, MIT ELECTION DATA þ

SCIENCE LAB, https://electionlab.mit.edu/research/voter-confidence [https://perma.cc/WUK4-3P8J] (last

visited Dec. 12, 2021) (Chart showing that since 2000, voter confidence that their vote was counted as intended

has ranged between 60 and 70 percent, and indicating that voters for the losing party have less confidence: in

2000, 59 percent of Democrats were very confident their vote was counted correctly; in 2020, 50 percent of

Republicans had such confidence); but see, Voter Confidence, supra, note 8 (stating there is no evidence that

election administration has a “direct effect” on voter confidence).

Such harm may not be easily reversed.

9

See Rosalind S. Helderman, ‘This Is Really Fantastical’: Federal Judge in Michigan Presses Trump-

Allied Lawyers on 2020 Election Fraud Claims in Sanctions Hearing, WASH. POST (July 12, 2021) https://

www.washingtonpost.com/politics/sidney-powell-disciplinary-hearing [https://perma.cc/Y6YK-5NSA] (The

article quotes David Fink, a lawyer for the city of Detroit, regarding plaintiffs’ later corrected misstatement of

voter turnout: “The suggestion that this is some kind of harmless error because it was ultimately corrected flies

in the face of the reality of what actually happened.. .These lies were put out into the world. When they were

put out into the world, they were believed.”).

The

virtue in preventing the use of a democratic society’s legal system to undermine

the function of its own government should be apparent.

10

In conjunction with the election litigation, Trump and his supporters ran a se-

ries of attacks on the electoral process that were fueled by and demonstrative of a

lack of faith in the democratic process. As poll workers counted votes in the days

following the election, the loser’s supporters appeared outside the facilities

demanding access and a stop to balloting tabulation.

11

See, e.g., Katie Shepherd & Hannah Knowles, Driven by Unfounded ‘SharpieGate’ Rumor, Pro-Trump

Protesters Mass Outside Arizona Vote-counting Center, WASH. POST (Nov. 5, 2020), https://www.

washingtonpost.com/nation/2020/11/05/arizona-election-protest-votes/ [https://perma.cc/9U3P-MEWD].

When an election vendor

employee was spotted working with a voting machine, Trump’s supporters

5. See, e.g., Renee Knake Jefferson, Lawyer Lies and Political Speech, 131 YALE L.J. F. 114, 118 (2021)

(“Sidney Powell’s election lies were so egregious that Dominion Voting Systems sued her for defamation. As a

defense, she argued ‘no reasonable person’ would have believed her.”).

6. Id. (“A New York State appellate court suspended [Rudy Giuliani’s] New York license pending investi-

gation, ultimately finding ‘uncontroverted evidence’ that he ‘communicated demonstrably false and misleading

statements to courts, lawmakers and the public at large in his capacity as lawyer for former President Trump

and the Trump campaign in connection with Trump’s failed effort at reelection in 2020.’”).

7. Id. at 125 (“Professional conduct rules not only permit lawyer lies, but in some instances may require less

than candid speech, if not outright lies.”).

8.

9.

10. But, if it is not, see generally Jefferson, supra note 5, arguing that the lawyer should have a duty of can-

dor toward the public in the context of lies about election results.

11.

1118 THE GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 35:1117