Highly Recommended: A Primer On Burden Of Proof

With all this talk about evidence and proof with regard to all the different suits alleging voter and election fraud, Andrea Widburg has written a very nice primer on how burden of proof issues apply in these cases: The burden of proof should favor Trump in election fraud litigation . I highly recommend it to anyone who needs a refresher on this crucial topic.

Widburg's starting point is this very important Trump 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

Widburg frames her explanation as a metaphor on a game of tennis:

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 furthest edge of the defendant’s side.

Since these are not criminal cases, we can ignore that last part about "beyond a reasonable doubt."

How about the defendant, the Dems? In terms of Widburg's tennis metaphor, the Dem return just needs to get over the net--but how does that work? This is how:

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.

This is where a significant twist enters into play. What would be compelling counter evidence? Evidence that would show Trump's allegations are incorrect? Well, in election cases paper trails and electronic trails are supposed to be generated and retained--precisely as evidence for use in settling disputes. All the Dems need is to present that evidence.

The twist is that so far the Dems, who control the elections in the disputed locales, are refusing to produce that evidence. Worse, there are allegations that they are destroying that evidence. The law has a way of dealing with destruction of evidence. In a criminal case, destruction of evidence can lead to obstruction charges. In a civil case, that's handled by what's called the "doctrine" of spoliation . This doctrine could lead to a presumption that the evidence destroyed by the defendant would have been favorable to the plaintiff. In that case the burden of proof for the Dems would be essentially insurmountable--thus Trump's tweet. Powell and others are, in fact, alleging exactly this--that evidence has been and is being destroyed.

Few things in law are simple, however. In 2015 the Federal Rules of Civil Procedure were revised. I can't speak for what would happen in all the different state courts, but Powell is certainly seeking to get her case heard in federal court. Here's what the new Rule 37(e) says:

(e) Failure to Preserve Electronically Stored Information. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:

(1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or

(2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may:

(A) presume that the lost information was unfavorable to the party;

(B) instruct the jury that it may or must presume the information was unfavorable to the party; or

(C) dismiss the action or enter a default judgment.

As you can see, subsection (1) presents a bit of a hurdle. Will the measures "no greater than necessary" in an election case lead straight to the serious sanctions of subsection (2)? In these election cases my guess is that there is good news for Trump, in that the allegations of fraud were made almost immediately, and in many cases even before the states in question were "called" for Biden--much less certified. I believe the negative presumption would apply. I doubt that the results would be significantly different in any of the state courts.

In any event, read Widburg's primer. I think you'll find it enlightening.