Tuesday, December 08, 2020


This is not how reasoning is done. 

You don't start by assuming that the election was basically fair and just dismissing all complaints. 

Nor does it start by assuming that the election was stolen and then going looking for the evidence.  

If you do the former, you start finding your pals saying things like "There is no fraud, don't be ridiculous," followed by "We should seriously consider paying people to move to Georgia." Those two things don't er, go together very well. Also, rolling your eyes about possible software vulnerabilities when you made the exact same complaints yourself a year ago doesn't engender trust either. Corporate media will help you bury that, but the few who remember won't trust you going forward.

If you do the latter, you believe that every rustling in the undergrowth is a wolf, even when it's squirrels. (Squirrels are destructive, of course, and I hate 'em.  They're just rats with pretty tails. "A rat in a prom dress" as a young friend said.  But they aren't wolves.) Things look strange to you as you stroke your chin. Even after ten in a row have gone down to having a reasonable explanation, you are pretty sure that eleventh one is going to be the killer. 

On the other hand, it's not a very tenable situation to say it's impossible when fraud has in fact happened in the past. When things look strange, it is honorable if nothing else, to at least admit that "Yeah, it does look strange.  I'm confident there's a good explanation, but I see why it looks suspicious." You might even buy yourself some unity if you take that approach.  Even if you are just pretending in order to be polite. Otherwise it looks like you have something to hide and aren't all that confident after all - which makes the suspicious ones even more suspicious.

I have been seeing a lot of motivated reasoning about the election.

Here was my expectation going in.  Most of what we call fraud is really "gaming the system."  You pass rules in your favor beforehand.  You make it hard for people to hold you accountable. You study the system and its vulnerabilities and exploit them while technically remaining in the rules. As the mail-in voting rules were changed I recognised that as classic gaming. People can yell and scream and cry foul, but no one is going to jail.

I did expect that there would be some fraud, because there always is.  The claim that there would be more fraud this time, because the Democrats hate Trump even more I found unpersuasive.  If you have a trick you are used to getting away with, you use it every time, so it would only be 1) New Tricks or 2) Improved ways of finding Old Tricks. The only way that "massive fraud" was going to show up would be under the new tricks. Trump's strategy for detecting fraud was to shoot at everything that moved and be tenacious.* I actually did think his strategy was going to reveal more fraud, simply because people were looking harder and not letting go.  Also, maybe something new, like vulnerable software might have shown out and been a big-ticket item.  I didn't think it was likely, but I thought it was possible.

So I thought it was 90% likely that at least some chicanery was going to be exposed. That had dropped to 75% in a couple of weeks, to 50% by three weeks ago, and about 25% by last week.  Something could still pop, and I hope so.  There are still a few things out there that do not yet have good answers. But if there were a coordinated effort, stuff would be leaking out - innocents who were part of the process who didn't know they "shouldn't tell the election commission about this," or people who got double-crossed when the machinery wasn't used for their favorite also. Or, if it was a series of unrelated frauds some of the scattershot would have hit.  The corrupt political machines in cities are there for the local elections and are built to do that job. I'm thinking Atlanta and Detroit, here. 

I probably shouldn't be focusing my energy on the noisy ones.  The sites I frequent and even their commenters are pretty reasonable, even in parlous times (okay, not Ymarsakr. But he's schizophrenic, so I don't count that). This isn't aimed at them. (Okay, exception again.  Some of the commenters at Maggie's fall into the category I'm about to mention.) But I am seeing those words "obviously," "definitely," "unquestionably," all over the place.  We've been over this a hundred times.  When people say that they mean "I don't have evidence, but I'm really intense, and I want to shove off any possible objections." If the fraud is there it's not obvious, it's not definite, and it is not unquestionable. Draw your fingers back from the keyboard when you are about to type one of those words or their related concepts.  It may be so.  You may, upon reflection, go forward.  But when those words are flying around they start meaning the opposite. I have said up until this year that those have been more common tactics among liberals, but not in 2020.  That type of emphatic absolutism, itself a bad sign, has been ours this year.

*A better strategy would have been to be prepared and be smart.  I was told today that one of Trump's cases was dismissed because the attorneys filing forgot to pay the fee. Folks, if he had a case he pissed it away. If you know what places are likely trouble spots and don't have top-shelf guys in place a month beforehand you just aren't doing your job. That's the regret I'm going to take away, that a dent in the chronic fraud could have been made, and wasn't.


Harold Boxty said...

Watch last Sunday's YouTube vlog by Viva Frie and Robert Barnes. He covers all this, including how Trump did have the "best men" on the case and they have repeatedly taken the money but failed to do the job. Failing to file fees could be the lawyer's fault by mistake or intent but also the clerk by mistake or intent (like cancelling the transaction or misfiling the check).

Harold Boxty said...

Watch last Sunday's YouTube vlog by Viva Frie and Robert Barnes. He covers all this, including how Trump did have the "best men" on the case and they have repeatedly taken the money but failed to do the job. Failing to file fees could be the lawyer's fault by mistake or intent but also the clerk by mistake or intent (like cancelling the transaction or misfiling the check).

Harold Boxty said...

Watch last Sunday's YouTube vlog by Viva Frie and Robert Barnes. He covers all this, including how Trump did have the "best men" on the case and they have repeatedly taken the money but failed to do the job. Failing to file fees could be the lawyer's fault by mistake or intent but also the clerk by mistake or intent (like cancelling the transaction or misfiling the check).

PenGun said...

"Squirrels are destructive, of course, and I hate 'em."

Really? You can afford hate?

Oh well, just because I'm harmless, and love the entire universe should not mean everyone has to be like me. ;) My rats get live trapped and deported, with rat food, to a rather nice place.

Unknown said...

"I was told today that one of Trump's cases was dismissed because the attorneys filing forgot to pay the fee"

Fulton County? I'd read it was a listed as not filed & no fee paid based upon the submission system crashing, and that the on Monday morning it was accepted as filed-by-deadline and paid.

But that's the trouble with most of what I'm reading, not enough specificity to know if the report I'm reading or being told now is old-news already overtaken, things overtaking what I thought I already knew, or some different event altogether.

I've seen a lot of cases that I thought would have been more timely ahead of voting (of course then people didn't know it mattered so much). And a subset that actually were filed before, and dismissed then because no 'injury' had yet taken place.

One of the things I've noticed is that because the Roberts court is historically so against changing anything related to voting near the time of elections, the Calvin_Ball changes this year were often just late enough that the changes would be made, announced, implemented, and then since ballots (either of questioned legality or questionable return instructions) were already out, it was in most court cases too late to change anything back to a previous state of the rule-book. I'm not confident that anyone could predict and have a plan to counter every unknown potential late change to voting procedures, but it is probably something that they want to do going forward. Since the play is "we need this change to prevent loss of access to voting", it looks really bad just to be against any change full stop.

My example of this from pre-election is the TX counties wanting multiple drop-box locations. I never worked out what the possible 'game' was in having multiple drop box locations, but also the A.G.'s PR people never did a good job explaining why they were a problem and why it was so important to not have them.

GraniteDad said...

Solid post. I saw in one of the affidavits the “expert” was taking as one of his inputs that Hillary and Biden would get the same vote share, then labeling where they didn’t as suspicious. Which is definitely one of those “if you start with a bad input, your output is bad” cases.

GraniteDad said...

@Unknown, One of the things I’ve been frustrated with is that some of the ballot complaints seem somewhat logical to me, but they were in place for a long time. One of them was passed in October 2019, and there had been two elections using that design. If it was problematic, the Trump/GOP team should’ve pounced on it right away and pushed back. I can’t tell if it’s complacency, ineptitude, or what.

Grim said...

There has been a lot of smoke generated by fake and stupid claims of fraud, e.g., "CIA servers in Germany were seized in a Delta Force Raid that killed five operators, who were later said to be killed in an Egyptian helicopter crash as a cover." That has convinced a lot of people that all of the claims are likely to be birds of that feather; but some of them look very serious to me.

There's been an influence on those who pay attention to the serious cases by the way authorities have handled these cases, and in both directions. That's how physics works too: push this way, you also push that way with equal force.

Just one example of several: The video in Fulton County, Georgia, looks precisely like election fraud would look. It appears to correspond, in time stamps, with the titanic Joe Biden spike. The elected officials keep dancing around waving recounts, calling for but not actually executing signature audits, and so on and so forth, all the while promising that there's a perfectly good explanation for that video.

Well, fine. They should make that explanation in court, to a jury of their peers. People asked for evidence, and this looks like evidence. But instead we see no one being arrested, or charged, or any sort of action.

For those who are convinced no fraud took place, that's proof that no fraud took place: the FBI would surely do something if the evidence were serious! For those who are convinced the fraud was real, that's proof of fraud -- the FBI is in on this too, because it's really about the Deep State clearing the decks of Donald Trump and his ilk, and making sure that the professionals are put back in charge.

OK, one more example: the PA case brought by legislators has a rock-solid constitutional case. They proved, not just provided evidence of but proved, that PA violated the state constitution in its conduct of these elections. The initial court review granted them an injunction because, it said, they were likely to win given that they had already proven their case.

The PA Supreme Court dismissed the case with prejudice (in both the technical and ordinary senses) the very next day, on a Saturday, on a purely procedural ground. That ground was also dubious -- they said the case should have been filed before the election, but it is not clear anyone would have had standing to sue before anyone was injured by the election. The point that stands out to me is that the powers that be demanded proof, and then refused to consider the proof when presented.

To those who want to believe it was all fair and normal, the one-day dismissal is proof that the court viewed the claim as unworthy of attention. To those who think it was serious, well, what more could you ask for by way of proof of fraud than a party-line decision to dismiss a proven constitutional case in a way that avoids having to examine its evidence or arguments?

Aggie said...

I don't need to arbitrate it in my mind endlessly, or try to sift through the legion of arguments being presented from both sides.

I only need to know why the states aren't following their own agreed procedures for vetting and tallying the ballots, and why they are preventing poll observers from doing their job as election witnesses.

If there's no fraud, why won't they publish the ballots, as agreed?
If there's no fraud, why were they counting in secret after ushering out the bi-partisan ballot processors?
If there's no fraud, why won't they follow their own procedures for checking the signatures on the absentee ballots.

The story is the same in all of the battleground states. There doesn't have to be fraud. There just has to be doubt that the election was free, fair, and according to the laws and established procedures - and then the Constitution takes over.

The behavior of politicians and judges from both parties in this time of contest has been cowardly, craven, callow, and deserving of our contempt.

GraniteDad said...

@Grim - there have been 2 elections in PA since that rule change passed. That's plenty of time for injury claims. Though if they couldn't prove that then, or weren't interested in filing then, perhaps that tells us something. The suit said that it was a violation of the state constitution, but was only asking for one of the elected offices (president) to be changed. Again, maybe they had a case, but their timeline and filings don't seem to match the rhetoric in press conferences. I think for me that's been the determining factor- the press conferences allege huge conspiracies and hundreds of thousands of ballots, the filings narrow the issues and don't follow suit.

@Aggie - if these are actual questions, why aren't there challenges to the process being held up in court? The more I see of the lawsuits, the less I think there is substantial fraud here. If there is fraud, it should be part of the lawsuits.

Grim said...

@GraniteDad: I am sure you're right to suggest that the Republicans are suing based on partisan interest rather than some pure devotion to the constitution; but that said, they're right about the constitution being violated.

We have a similar issue in NC, where a lawsuit was filed to overturn some constitutional amendments that were passed by referenda, arguing that the legislature is too gerrymandered to propose constitutional amendments. Maybe it is, but if they're ratified by referenda, literally every registered voter is consulted. In any case, as you're saying about PA's legislature, they raised an argument that should be sweeping, but only asked for the particular specific amendments they opposed to be invalidated. They won their case, getting lucky in drawing a judge who agreed with their partisan views.

So, sure, they're following their interests -- but they're not wrong about the constitution, either.

In any case, I might accept a ruling that said, "Yes, this is clearly a constitutional violation, however we're going to waive it this year because of COVID, but we direct the legislature and governor to pass a proper constitutional amendment before the next election if they want to carry on this way." There are several possible rulings they could have made on the merits. What bothers me is the part where they just wave away a constitutional violation on a debatable technicality, rather than grappling with the issue. It matters if the government violates the constitution openly and brazenly, and the courts just accept it because they like the outcome.

Aggie said...

@GraniteDad, not sure what you mean about 'challenges to the process'. Did the state of Georgia comply with its agreed procedures for tallying ballots? No: The SOS himself promised a full audit, a re-canvass, and a recount, and only performed the latter, ignoring the more-important audit and re-canvass. Did election workers in Democrat districts usher out bipartisan ballot processors on Election Night and secretly continue the vote count in the wee hours, with no witnesses present? Yes. Has this been contested with suits filed? Yes.

Are you assuming that judges are without bias, or that they do not have latitude to dismiss cases? In many states, judges are elected with party affiliations. Have you noticed, incidentally, in many cities across our nation during the past riotous year, that rioters and looters and assaulters are often released with no bail and no charges with their victims left hanging in the wind? Are prosecutors upholding the law in these instances, even when police provide compelling evidence? No.

So I'm not sure what your point is, or how you would define 'fraud'. If a state has procedures for tallying the ballots, and ignores those procedures that are designed to reveal fraudulent votes, and the politically-elected judges refuse to entertain lawsuits that would enjoin action to rectify this by reverting to procedures, and they use Catch-22 type arguments as their artifice for denying hearing the suit, are you concluding that this is proof that fraud is absent and the vote is on the up-and-up?

I disagree. Transparency and abidance of the rules is what keeps elections fair and open. This one does not pass the smell test because of the actions of state and county election officials, and the judges in question, when it came to ensuring that the state's own procedures for ballot vetting and counting were followed.

GraniteDad said...

@Aggie - I just want to confirm, you believe there's politically-motivated fraud in GA by the Republican SOS and governor? I[m struggling to understand your point there, since the Fulton county stuff was on video and has already been rebutted.

Your other items have been largely rebutted if you'd like to examine things, but I just don't have the energy or inclination to go find things for you since I doubt it would help at all. I'm not sure why you're dragging in Antifa and rioting in places this summer. I'm not a fan of rioting and I oppose progressives dismissing these cases, if that's what you're asking.

I will add that a lot of the judges rejecting the arguments and dismissing these cases are Republicans, some of whom have been appointed by Trump. This isn't some Democrat plot- it's originalist judges pointing out serious flaws. In Bush vs Gore, Republicans had the best lawyers in the country arguing the cases, because there were serious concerns and issues. I think it's illustrative that it's certainly not the case here.

Assistant Village Idiot said...

I will add that Trump has won one out of fifty cases here, and it seems unlikely that all those judges are corrupt or biased. I read conservatives writing that things look bad and don't pass the smell test, and the math looks screwy and unlikely. Well, believing that that many judges, or even a hefty portion are just biased and unwilling to look at the evidence seems like screwy math that doesn't pass the smell test to me. The SCOTUS just went 9-0 against letting the PA case even go forward. That's a pretty formidable result, that even with the presidency on the line and trying to bend over backward toward fairness, none of them could see any merit in even hearing the case.

I think conservatives are in a bubble as much as liberals on this one, not seeking out even conservative lawyers who disagree with them on this. For example, Althouse is convinced the press and academia are against Trump and the Republicans, but doesn't see a lot of merit in these cases. National Review is covering all this info, including some of them who did vote ffor Trump, like Andy McCarthy. He's calling the Texas lawsuit frivolous, for example.

james said...

Sometimes judges can be stupid, but sometimes they're quite practical. "Can we do anything about this? No? Not hearing it."

Grim said...

I respect Andy McCarthy as a prosecutor, and found his argument that prosecution was very difficult here somewhat persuasive -- the need for probable cause and 'beyond a reasonable doubt' as a standard is much harder than the preponderance standard in civil cases. And I don't think Trump's lawyers are always very good, as is usual for people who work for Trump directly. He has never drawn the very best of anyone, which makes his genuine victories all the more surprising. Yet sometimes it is just why he succeeds. Peace in the Middle East, for example, was obtained just because he rejected the elite where they had settled on wrong ideas.

That said, constitutions either matter or they do not. Texas is doing something extraordinary (in the strict sense of the word), but it is constitutional: the Constitution itself established the Supreme Court's original jurisdiction in disputes between states. Likewise, the original Constitution has language that requires the Federal government to guarantee each state a republican form of government -- that is, at minimum, a constitutional form.

So when you find that states have violated their constitutions in a way that is going to affect the other states, it makes sense to me to appeal to the Supreme Court in its original authority. Something like this is exactly why the Supreme Court was included in the Constitution to begin with; the Founders did not intend for it to be either the judicial review board that Marbury v. Madison established it to be, nor the rolling committee on amending the constitution that it has become.

Likewise, it is sensible that a state or a collection of states might need to ask the Federal government to restore constitutional order in other states where such order has failed. Otherwise one is trapped in a body politic with a failing organ, as it were; somewhat like being in an actual body with a dying kidney. If the kidney cannot be cured, it must be removed; and if it cannot be cured or removed, the whole body will die.

Which is, I suspect, a better analogy than is comfortable for the present situation.