What Does It Mean That There Is "No Evidence" To Support An Accusation?

A frequent assertion with respect to the accusations against Supreme Court nominee Brett Kavanaugh was that there was “no evidence” to support them. But this assertion was never right. Sworn testimony of an accuser is evidence. That evidence might not be credible without at least some corroboration, but it is still evidence. Being a trial lawyer by trade, I know a thing or two about this subject.

A more accurate statement in the context of the Kavanaugh accusations would have been that there was no “corroborating evidence.” Accusations of rape or sexual assault, at least ones made reasonably contemporaneous with the conduct complained of, typically come with substantial corroborating evidence. First and foremost would be DNA of the accused retrieved from the accuser. Other examples might be bruises or other injuries to the accuser; a crime scene matching the accuser’s version of the events; witnesses who can place the accused at the scene even if they didn’t witness any wrongdoing; and so forth. Even in the case of a thirty-year-old accusation, an accuser with a credible claim could potentially come up with at least some material corroborating evidence, such as a definitive location for the event that matches her description of what occurred, or a corroborating witness who could say that she was there and why she was there or how she got there or how she got home.

Now there are accusations of vote fraud in Florida, particularly involving Broward and Palm Beach Counties. A frequent response has been that there is “no evidence” of vote fraud. For example, at Vox: “There’s no evidence of voter fraud in Florida.”; or at the Guardian: “State elections and law enforcement officials say they have seen no evidence suggesting such allegations [of vote fraud] are true.”; or at NPR: “As Florida Races Narrow, Trump And Scott Spread Claims Of Fraud Without Evidence.”

Well, is there anything that counts as “evidence” of vote fraud occurring in Broward (or Palm Beach) Counties? Definitely. How about these things:

  • Florida Statutes Title IX, 102.141(4)(b) states: “The canvassing board shall report all early voting and all tabulated vote-by-mail results to the Department of State within 30 minutes after the polls close. Thereafter, the canvassing board shall report, with the exception of provisional ballot results, updated precinct election results to the department at least every 45 minutes until all results are completely reported.” On election night Broward County reported that some 634,000 votes had been cast in the county. Clearly they had the means available to know the number of people who had cast votes by that time, and were required to announce the number. But over the next two days, the alleged number of votes cast in Broward County increased dramatically, to 712,840 as of the night of November 10. Is this evidence that vote fraud could be occurring? Absolutely!

  • Then there is the issue that the vote counting process is required by state law to be subject to observation by the public, and by representatives of the candidates. On November 9 Republican Senate candidate Rick Scott obtained a court decision that Broward and Palm Beach counties were in violation of Florida open records law by failing to allow access to the vote counting process, together with an order requiring the election supervisors to make the information available by that evening. The Palm Beach County supervisor announced that she would not comply. Is this evidence that vote fraud could be occurring? Absolutely!

  • And then, how about the Affidavit of one Chelsey Marie Smith, submitted by Matt Caldwell, the candidate for Florida Agriculture Commissioner whose apparent election is also in jeopardy from the discovery of new votes in Broward and Palm Beach Counties. Ms. Smith asserts under oath that she personally observed employees of the Broward County election supervisor filling out stacks of blank ballots in a secret locked room. A copy of the affidavit can be found at this link. Admittedly, this was in 2016, in connection with a different election. But would the existence of such conduct once be evidence that could be presented as to whether it might be occurring again? Yes.

I’m not saying that any of these things constitutes definitive proof that vote fraud is occurring. But they definitely are “evidence.” And they are more than enough evidence to justify a thorough police investigation of what has occurred. Moreover, a thorough police investigation should be able to establish definitively whether misconduct has occurred. In the circumstances of repeated suspicious election results in Florida, regularly focused on these same two counties, the public deserves to have answers.

Assuming that the slim leads of Governor Scott in the Senate race and Congressman DeSantis in the Governor’s race hold, the easy thing to do would be to forget about this and move on. In this case, that will not be satisfactory.