My goodness, Scott certainly stirred up our readership yesterday with his “limp noodle” confession about the election. At the risk of annoying many readers further, I’ll offer my observations on the matter which lead to my conclusion about why, and, more importantly, how to move on from here. In rank order of provocation:
• The Democrats stole the election fair and square. Of course I don’t mean that literally; what I mean is that the election was effectively stolen months ago before any ballots were cast when legislatures (and sometimes governors and state courts such Pennsylvania) changed the voting rules to allow expanded mail-in voting, and the cascade of related vulnerabilities that followed. Republican legislatures that went along with these COVID-induced panic changes were foolish if not derelict in their duty. And the Trump campaign was negligent in not fighting against this months ago. President Trump was correct to warn about this outcome. Why wasn’t his campaign better organized to resist this months ago? (I know they did file a few lawsuits, a few of which had some effect, but it wasn’t enough.) I suspect the long-rumored campaign infighting and attention to other things distracted Trump’s senior campaign managers from paying sufficient attention to this.
• Fraud is very easy in our election system. Remember that our elections are run by part-timers, amateurs, and volunteers on the county level in America—and we have over 3,000 counties. In such a diffuse system it is easy to conjure up a few dozen votes here, a few hundred votes there. Or worse. It is at once a glory of self-government in America that we actually conduct our elections in this decentralized way involving tens of thousands of citizen volunteers. It is also astounding that we use such a vulnerable and chaotic system to choose our president.
• So the problem with vote fraud is that a remedy is difficult to apply. There aren’t good remedies. If a race is within a few hundred votes or less, a recount or ballot challenges can work to reverse the outcome, though not often. The plain fact is that once a fraudulent ballot is inside the ballot box and counted, it is very hard to get it back out of the box and un-counted. Fraudulent ballots need to be intercepted before they reach the ballot box. It is likely not possible to disqualify enough ballots to change the outcome in three states, which is what Trump would need. The statistical anomalies of this election are good circumstantial evidence of vote fraud, but exactly which ballots, or which vote totals, do you change, and how?
No court is going to overturn an election result on circumstantial evidence and affidavits of incorrect polling place procedure alone. (I reserve judgment for the time being about the Dominion computer system question.) And the thorough fact-finding necessary for judicial intervention would take time that we haven’t got. This is why both the Constitution and most state election statutes make the legislatures the arbiters of presidential election results.
• What is to be done? Step one is for Republicans to get better at “ballot harvesting” themselves. Game theory would recommend this. There is some evidence that they have in some places. Two years ago the California GOP was shocked when it lost several congressional seats due to late-arriving ballots that had been harvested by Democrats under the new rules. The GOP got several of those seats back in this election, in part because the California GOP figured out that both parties can play at this game. Like gerrymandering, which became an offense to democracy for liberals only when Republicans got good at it, if Republicans get good at finding more votes Democrats might actually have to agree to reforms to make elections more transparent and secure.
• What else is to be done? Game theory (and justice) would also recommend payback to Democrats for their embrace of the Russia hoax and their “Resistance” stance that Trump was an illegitimate president. What goes around comes around. The prudent course will be to cast a shadow over Biden’s presidency. If the GOP holds the Senate, there should be extensive committee investigations into election fraud. Trump’s interim attorney general should appoint a special counsel to look into the matter and include Hunter Biden in the charge. Make Biden dismiss the special counsel, which will not be cost-free. State legislatures and state attorneys general should conduct relentless investigations.
Prudence dictates that Republicans will be better off going on offense against the weakest incoming president in modern American history, rather than thinking a show of legislative force, either by the states or by Congress, to reject the certified results of an election can succeed. The showing of the GOP down ballot displays strength, not weakness. The Democratic Party is seething with division under the surface. Time to exploit these divisions.
Trump’s defeat is both bitter and tragic—tragic because it took COVID-19 to take him down. Maybe this was no coincidence, but the fact that he almost prevailed in spite of circumstances and the most hostile media attacks ever faced by a president is amazing. Later today I’ll start a new series here on the case for optimism—why our future is Trumpist. In short, many of Trump’s victories and effects will not be easily swept away. If you look at the political positions of the two parties right now, I like our chances a lot better. Stay tuned.
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