There are two newsworthy parts to this story, one of which obviously is what happened to the ballots themselves. That’s important — any instance of votes being “discarded” is cause for investigation — although we all realize that human error leads to some votes being deemed illegal or simply not being counted in every election. Last night I wrote about the possibility that “naked ballots” in Pennsylvania could result in as many as 100,000 votes being invalidated (most of which are highly likely to be for Biden), potentially deciding who wins the presidency. When nine votes aren’t counted somewhere, someone needs to find out why.

The more newsworthy part of this story is the way the investigation was hyped both by Trump’s campaign and Trump’s Justice Department, an outfit that’s not supposed to be working to get him reelected, needless to say. They don’t work for him, they work for the entire population. Or they’re supposed to.

Let’s back up. Last week local authorities in Luzerne County, Pennsylvania, found out that a certain number of military ballots had been opened by county election officials. That’s a big no-no. Mail ballots are supposed to be placed in a room unopened until early on Election Day. (Most Pennsylvanians haven’t gotten their mail-in ballots yet but the military is an exception. They get write-in ballots which they can send in early.) Those officials called in the FBI to investigate. Yesterday local U.S. Attorney David Freed, a Trump appointee, published his letter to county authorities about the result of the investigation. Key bits:

The FBI has recovered a number of documents relating to military ballots that had been improperly opened by your elections staff, and had the ballots removed and discarded, or removed and placed separately from the envelope containing confidential voter information and attestation. Specifically, a total of nine (9) military ballots were discovered to have been discarded. Seven (7) of those ballots when discovered by investigators were outside of any envelope. Those ballots were all cast for presidential candidate Donald Trump. One (1) of those seven (7) ballots was able to be identified to an envelope that was recovered, and thereby potentially tied to a specific voter. Two (2) military ballots that had been discarded were previously recovered by elections staff, reinserted into what appeared to be their appropriate envelopes, and then resealed. Therefore, the votes cast on those two (2) ballots are unknown. Thus, is appears that three (3) of the nine (9) recovered ballots can be potentially attributed to specific voters. Six (6) of the ballots were simply removed and discarded, and cannot be attributed to a specific voter at this time…

It was explained to investigators the envelopes used for official overseas, military, absentee and mail-in ballot requests are so similar, that the staff believed that adhering to the protocol of preserving envelopes unopened would cause them to miss such ballot requests. Our interviews further revealed that this issue was a problem in the primary election–therefore a known issue–and that the problem has not been corrected.

That’s a big deal potentially. If I’m reading it correctly, election officials made a good-faith mistake: They opened the envelopes believing that *applications* for ballots were inside, only to find completed ballots instead. Because those ballots can’t properly be counted until Election Day, they were therefore spoiled. So the officials just … threw them away. If that’s a chronic problem in Pennsylvania, with ballots being spoiled left and right because it’s too hard to tell them apart from ballot applications, uh oh. Freed’s letter is ambiguous but it sounds like what he’s describing is a “naked ballot” snafu. That is, instead of enclosing their ballot inside an inner “secrecy” envelope and then enclosing that in an outer envelope with identifying information, the nine troops involved may not have used the inner envelope. They just stuck their ballots in the outer envelope and dropped them in the mail. When election officials opened the outer envelope — oopsie. Turns out they had actual ballots on their hands, which weren’t supposed to be revealed until Nov. 3.

Bottom line: There’s a real problem here on the merits, even if the number of ballots involved was small in this case. That’s the first newsworthy part of the story.

Which brings us to the second part. Why did Freed make a point of noting which candidate was selected on the spoiled ballots? He was so eager to note that they had been cast for Trump, in fact, that his office initially put out a press release with false information and then had to retract it. That statement claimed that all nine ballots had been for Trump; the truth, as noted in the excerpt above, is that seven were. Needless to say, it’s completely besides the point whom the votes were for. All nine ballots could have been write-in votes for the Stay-Puft Marshmallow Man and we’d still have a troubling case here of elected officials accidentally invalidating votes because they didn’t follow proper procedure.

It makes no sense legally for Freed to care about that. But it makes lots of sense politically, knowing that his ultimate boss is out on the trail every day insisting that Democrats are going to use mail-in voters to cheat him out of the presidency. This sure feels like the act of a political hack who’s working to help Trump undermine faith in the election, presumably because he thinks there might be a promotion in it for him if the president wins a second term. (An eminently reasonable presumption.) He may have wanted to get the Trump’s attention with a story about ballot shenanigans and recognized that emphasizing that the shenanigans in Luzerne County came at Trump’s expense would give him a better chance. So that’s what he did. And it worked like a charm: Politico notes that Kayleigh McEnany somehow got wind of the investigation and was talking to reporters about it yesterday even before Freed’s office put out its first press release. Trump himself alluded to it in a segment with Fox Radio. White House comms director Alyssa Farah jumped on the story as well:

EVERY vote matters. 9 military votes MATTER. Call me old fashioned: but I believe those willing to serve our nation in uniform especially deserve to have their vote counted accurately. https://t.co/MHpT9rrHx8

— Alyssa Farah (@Alyssafarah) September 24, 2020

And of course so did Trump campaign spokesman Matt Wolking, who had to delete his tweet after it became clear that his “100%” figure couldn’t be verified:

8 hours later, the Trump spokesman’s instigating tweet—”Democrats are trying to steal the election”—is still posted, with 67,000 retweets/likes and counting.

This sort of disinformation is going to get innocent people hurt. pic.twitter.com/xGOb8WICHT

— Tim Alberta (@TimAlberta) September 25, 2020

Wolking, being a campaign apparatchik, was free to overtly state what Freed could only suggest with subtext by mentioning that the spoiled ballots had been cast for Trump, namely, that Democrats are supposedly trying to steal the election. Never mind that Luzerne County went for Trump by 20 points or so four years ago. And that, per Freed’s own investigation, it sounds like the ballots were opened due to an honest mistake, not as part of a scheme to invalidate pro-Trump ballots exclusively.

Campaign aides are what they are but U.S. Attorneys are supposed to be impartial. Former DOJ officials are understandably disgusted with Freed:

An investigation here may be reasonable. But there is NO legit reason for:

1) a DOJ press release on a pending investigation, that
2) announces a partial list of unconfirmed facts, including
3) the identity of one of the candidates on specific ballots.https://t.co/T92nz8tZpV

— Justin Levitt (@_justinlevitt_) September 24, 2020

This is both bizarre and disturbing — US Attorney’s Offices don’t issue reports on pending investigations— and certainly not reports so blatantly contrived to provide political ballast for a sitting President’s campaign narrative https://t.co/2wZWpjjIDD

— David Laufman (@DavidLaufmanLaw) September 24, 2020

Especially noteworthy:

From the DOJ's own guidelines, last revised in 2017, during _this_ Administration:https://t.co/b59f3cax3M pic.twitter.com/xHxpKhepzg

— Justin Levitt (@_justinlevitt_) September 24, 2020

Freed seems to have done the opposite of what DOJ guidelines recommend. He deliberately *did* try to make his investigation a factor in the election by taking care to note that Trump votes, specifically, were lost. I’d be curious to know how the White House came to know the results of his investigation before the public did considering that this was, after all, a case involving just nine ballots, not the sort of stuff you would expect the president or his press secretary would need a heads-up on. If this wasn’t a case of Freed — and Bill Barr? — deliberately playing up the fact that Trump had lost votes via the mail process in order to bolster his “if I lose it can only be because I was cheated” claims, then what was it? What’s the non-corrupt explanation for Freed mentioning that the votes cast were for Trump given that the DOJ guidelines would seem to counsel doing exactly the opposite?

And before you answer, bear in mind that Barr has been unusually willing for an AG to insert himself into the political debate surrounding mail-in votes this year, and unusually dishonest about it too. Normally a sitting Attorney General would look to reassure the public that America’s democratic institutions work and, to the extent they don’t, the DOJ will investigate impartially to make sure that they do. Freed’s statement undercuts both parts of that. There’s no evidence that he acted at Barr’s behest, but as I say, given Barr’s peculiar interest in discrediting mail-in voting and the highly irregular chicanery involved in reducing the sentences for Trump cronies Roger Stone and Mike Flynn, there’s no reason to think he’s above it. Presumably the media is digging even now to find out exactly how Freed’s statement came to be.

One more thing. As others have noted on Twitter this morning, the reason the nine ballots ended up being spoiled is because Republicans, not Democrats, have fought in Pennsylvania to disqualify “naked ballots.”

From that story. Pennsylvania Republicans wanted those ballots thrown out. https://t.co/XW9HRV9Zit pic.twitter.com/PiazXZidKX

— Ryan J. Reilly (@ryanjreilly) September 25, 2020

Everywhere you look on the national map this year, it’s Republicans who are working to make voting more complicated. The charitable view of that is that they want to make sure that fraud is more difficult for malefactors to pull off. The less charitable view is that they know that a guy who lost the popular vote by several million votes last time and will lose it by an even wider margin this time needs to close the gap in any way he can, up to and including disqualifying ballots whose intent is clear but which were sent without following proper procedure to a T. The “naked ballot” issue may in fact be the difference in him winning Pennsylvania. But in this case, it appears, it cost him at least seven votes. Maybe nine.

Update: That didn’t take long.

A Justice Department official told ABC News Friday that Attorney General William Barr personally briefed President Donald Trump about the DOJ’s investigation into a small number of ballots in Pennsylvania that were found to be discarded, prior to the information being made public by a U.S. attorney’s office Thursday afternoon.

President Trump went on to first reveal the investigation in an interview with Fox News Radio, where he, without evidence, argued that it bolsters his baseless claims of widespread fraud in mail-in voting.

So strange that our extremely political AG took a case involving nine ballots in a single state all the way up to the Oval Office, and that the DOJ’s messaging about that case then dovetailed precisely with Trump’s own campaign message. Now we wait for an answer to the obvious follow-up question: Did Barr force Freed to mention that most of the spoiled ballots were for Trump or did Freed take the initiative himself?