I am no expert on election law, but I trust Volokh Conspiracy over at Reason, who put out the report on the election "Lost, Not Stolen," written by a qualified and a believable cast of characters. I would add that identifying a vulnerability, though clearly a cause for great concern and rapid remedy, is not the same as identifying fraudulent votes.
Saturday, July 16, 2022
Lost, Not Stolen
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17 comments:
Since means such as drop boxes remove the connection between a valid un-coerced vote and a ballot, the results are not fully reliable.
That does not prove fraud. Fraud is hard to prove, and even harder when you remove the possibility of witnesses in a key point in the procedure.
"Not fully reliable" is I think about right. We went to great lengths to preserve the secret ballot and lack of unfair influence at the polling place, but seem willing to abandon that for convenience sake.
I definitely understand why conservatives, especially like Volokh's 'legal luminaries,' want to believe this. If that is true, it allows us to keep the same systems we've got and just try harder last time. It's a very conservative conclusion: no need for anything radical, we just lost this time.
You probably remember this from the last time we discussed it, but I maintain that 'identifying fraudulent votes' is not the right standard. We don't do that when determining that elections in other countries were stolen -- we don't have proof that Saddam didn't win 99% of the votes, for example. What you look for are statistical improbabilities, people who are obviously destroying evidence or hiding it, etc., etc. as per the last time around. Having done this sort of work in Iraq and Egypt, this election looks and smells bad by all the usual standards.
You can't expect to actually find fraudulent the ballots when the people in power are determined to destroy or hide them. In our system, even if there's a Republican legislature or Secretary of State there may be a city with a Democratic machine that is able to affect outcomes for the whole state while keeping state level investigations from being effective -- that appears to have been what happened in Arizona's audit, which was defied and stymied at every opportunity, and much of the material destroyed. In other cases investigations were never started, or were halted. Georgia saw lots of its voting machines wiped before investigations could occur.
What is most alarming, in fact, is the degree to which you discover how impossible it is to actually apply audits or checks on the system. This is somewhat similar to the alarm one might have felt during the Birther scandal. It was never plausible to me that Barack Obama, whose mother was an American and grandmother and so on all the way back to being a cousin of George Washington's, was not an American eligible to run. It was nevertheless stunning to realize that there was no one who was empowered or allowed to ask for a birth certificate before the election. There's really only two qualifications to run, and that document would resolve both of them. But there's no control.
Here too, it's effectively impossible to verify that things were done in an upright way; audits after the fact aren't possible, and instead immediately turn into partisan attempts to defy one another and derail the audit. How could one possibly trust such a system, and why would one?
That is not to say that many of Trump and his team's claims are wild-eyed and false. Some of them definitely are.
We are going to run into the teeth of this election-accountability problem next year. The Supreme Court has taken on a herculean task next year in trying to resolve the meaning of the Constitution's black-letter law that legislatures alone are empowered to set election laws, and not governors or courts or activists or lawyers. If the Constitution means what it says there, the 2020 election was entirely illegitimate in many states where the laws of the legislatures were set aside by courts or governors or secretaries of state, and the election conducted under other regulations they came up with themselves. Legislatures might be placed, then, in the position of authority to determine whether fraud is likely to have occurred and set aside bad elections. It's hard for me to imagine that the Court will find that Federal Courts can't do what they want to do, but the Constitution is crystal clear on this point (unusually so).
I dislike ascribing bad motives to them. Maybe they actually think there's is the better standard and aren't just being lazy and cowardly about it.
That's what you said. It makes the rest less convincing.
Perhaps there is a disconnect between what I intended to write and what you understood me to be saying. I did not intend to ascribe bad motives to them. I said I thought their position was very understandable given their conservative inclination. It's very much in line with what they are constitutionally inclined to believe, and it's very understandable why that would be an attractive thing to believe. There's nothing obviously wrong with that. As you often say yourself, it's normal for people to do what is normal for their tribe, and they're from the tribe that prefers conservation, normality, ordinary procedures, not panicking, not going too fast.
Indeed, the alternative position that major change is needed is both scary and alarming. The idea that the system really isn't reliable, or auditable, that it's become basically corrupt or that we shouldn't repose trust in such a system is the sort of thing that would be hard if it were (is?) true. And the alternatives for this SCOTUS ruling may both be bad: giving the legislature the authority enables someone to be the group that holds things to standards, but it also empowers them to act corruptly if they are inclined to. The alternative is to leave things as they are, which means that no one is really in charge and the system is opaque and appears to be corrupted and impossibly partisan.
I hear conservative friends of mine say things like this. "Trump lost; he was a bad candidate; we need to try harder next time." I get why that's attractive, even if I can't accept it myself. That's what I meant to say there.
It is possible that they took that attractiveness - and the convenience, and the potential difficulties - into consideration and still arrived at their conclusion. That it is possible that they had bad motives does not mean that they actually did. You certainly seem to be asserting that that is the reason for their conclusion.
Maybe “that’s understandable” is a term of art in your field? It occurs to me that I have heard therapists say it and mean something like ’your error is understandable.’ They have a different opinion; I get why you would want to.
I read the piece and they seemed to try to confront specific claims Trump er al had made. Those may be all or mostly wrong; that doesn’t actually address what concerns me about what we all witnessed in the week or so after the election. It doesn’t change the plain fact that the actual laws passed by legislatures, which the Constitution plainly says shall govern elections, we’re set aside by courts and executive branches. That’s not even in debate; it’s definitely true.
Putting the focus on the specific claims makes a kind of sense. It doesn’t, however, justify the conclusion that the election was legitimate.
I remember that once you thought I was implying that you were being cowardly, as you think I mean to imply bad motives here. Surely it is obvious that I would say definitely if I thought they were cowards. I’m not afraid to insult people who deserve it, especially not cowards! I’m just saying what I said, which is that I can understand that it’s really desirable to believe this, especially if you are are of a conservative disposition by nature. No offense is intended.
james: Since means such as drop boxes remove the connection between a valid un-coerced vote and a ballot, the results are not fully reliable.
There is no evidence that coercion is a significant issue with mail-in or dropbox balloting; no more so than with in-person balloting. Many U.S. states have no-excuse absentee balloting, and some states have all mail-in balloting.
https://www.ncsl.org/research/elections-and-campaigns/vopp-table-1-states-with-no-excuse-absentee-voting.aspx
Grim: You can't expect to actually find fraudulent the ballots when the people in power are determined to destroy or hide them.
There is no evidence that people in power destroyed or hid ballots in any significant manner.
Grim: Georgia saw lots of its voting machines wiped before investigations could occur.
That wouldn't affect the final vote tally as Georgia has physical paper ballots. A hand recount confirmed the machine count. That undermines the claim of machine fraud.
Grim: What is most alarming, in fact, is the degree to which you discover how impossible it is to actually apply audits or checks on the system.
All states have audits and checks on their voting system.
Grim: The Supreme Court has taken on a herculean task next year in trying to resolve the meaning of the Constitution's black-letter law that legislatures alone are empowered to set election laws, and not governors or courts or activists or lawyers.
The courts have always found that legislatures are creations of the state constitutions. The legislature is taken to mean the legislative process, which includes the governor's veto and court review.
Grim: It doesn’t change the plain fact that the actual laws passed by legislatures, which the Constitution plainly says shall govern elections, we’re set aside by courts and executive branches.
You might want to provide a specific.
At a bare minimum: it is beyond question that the major media, both traditional and electronic, refused to report on the story about the Hunter Biden laptop. Surveys have shown a substantial number of people who say they would have voted differently had they known about the contents of the laptop.
The election was also influenced by the statement of US intelligence officials to the effect that the laptop story appeared to be 'Russian disinformation', without any evidence of such and with no attempt to validate the truth of the assertion they were making.
So...even if the election was conducted legally as far as voter qualifications and ballot counting go, it cannot be called 'fair'. The assertion that this was a 'free and fair' election, which I have repeatedly seen stated almost as an article of faith, cannot be correct.
@ Grim - you remember correctly. I can't see how you get to your claimed meaning. If you say that a person arrived at a conclusion because it would be more convenient for them or they don't want to see the truth, that seems to be an accusation of at least quiet, unconscious intellectual cowardice. That you may consider it minor or understandable, without a lot of energy put into disapproval from you may soften it a bit but it is still straight out of Screwtape's advice to Wormwood: Get the patient to believe something not because it is true but because of some other reason.
@ David Foster - absolutely. Evan Thomas estimated around 2000 that the major media when agreeing could move the votes 10-15%! And he thought that was a great thing and even part of his job. He wanted Newsweek to help elect liberals. I think that was an overestimate then and it's even less now, but I think they still have much influence over the middle-ground voter, both in presentation and in omission - that lovely calculated omission that reports a story once, quietly, then never mentions it again, creating plausible deniability, for example. Or framing a Hunter Biden story as possible Russian disinformation.
@AVI: ...Screwtape's advice to Wormwood: Get the patient to believe something not because it is true but because of some other reason.
Devils may do that, but I try to avoid assuming diabolic influence is at work where I find disagreements. And really here I mostly disagree with their conclusion that it is a sufficient condition to have shown that Trump Team's own claims were false; I'm prepared to believe that they did that part faithfully, and are satisfied.
Yet that is not, I think, a sufficient condition: the election was conducted in an unconstitutional manner (eg. in Wisconsin, but also in Georgia and several other states; and as much as admitted by the practitioners in that infamous Time Magazine article we've discussed several times). If the election was unconstitutional it was illegitimate, and no legitimate government can have been elected from an illegitimate election. It might be nice to find actual fraudulent votes, were real audits possible; but while that might in fact be a sufficient condition, it isn't a necessary one.
I don't see that this disagreement requires them to be cowards. Aristotelian virtues are a kind of balancing point between opposing vices, and in the case of courage Aristotle actually says there are three -- cowardice on the poll, and then two different kinds of excessive bravery that exceeds the wisdom inherent in courage. There's a kind of spectrum at work here in which one can stray into the cowardly, but one might also be a little bit on the road to cowardly while remaining within the range of normal courage -- even if one is not at the ideal point of exemplary courage. One might also go down the road to rashness a bit without getting 'outside the lines' of the virtuous, even if one was not quite at the point of perfection.
Attaining the highest points of the virtues is a capacity that belongs to another virtue, magnanimity, which derives its ability to do that from honor. It is the capacity to reflect accurately on what is most worthy of honor that allows you to discern the very most worthy of all possible applications of courage or other virtues. Yet this is the capstone virtue possessed only by the very greatest among us; it is not necessary to do this to be a decent and virtuous person in general.
If you want me to say that I don't think they've attained the absolute perfection of courage that magnanimity would guide a hero to achieve, only maybe; even the Declaration of Independence ponders a period of prudence in which men suffer outright abuses in the hope they may be transient, rather than choosing to overthrow a long-established government. That they already have the right to do so is clear in the text; but 'long experience shows' that people won't do it quickly or lightly, or if the sufferable harms might pass on their own. This is assumed even by the Founders to be well within normal human virtue.
It is only when 'a long train of abuses' shows that the harms won't be liberty that it becomes not only a right but also a duty to replace a government, according to the text. People in different social positions might reasonably differ also about where that line is exactly; legal luminaries with strong ties to existing power structures might not discern it as being in the same place as your Patrick Henrys of the world. They might still feel they had a lot of cards to play to bring things out right without trouble; Patrick Henry might seem a little down the road to rashness to them. That indeed is exactly how it worked out the first time around, although they all ended up on the same side eventually.
*won’t be transient…
Grim: Yet that is not, I think, a sufficient condition: the election was conducted in an unconstitutional manner (eg. in Wisconsin,
The ruling was statutory, not constitutional. The ruling hinged on what "delivered in person, to the municipal clerk issuing the ballot or ballots.” No one argued the clerk has to personally accept each and every ballot. In rural areas, clerks are often part-time. The question concerns, if the clerk sets up a drop box and then collects the ballots, does that meet the definition of being delivered to the clerk. The Wisconsin Supreme Court ruled that it does not, and in the future the ballots must be returned to the clerk's office (though not necessarily to the clerk personally).
None of this calls into question the validity of the election, though.
Attorney Robert Barnes has repeatedly said signature matching is the gold standard and was promised in Georgia and required in other states but was ignored for the 2020 election. Obama won his Senate seat by getting the other candidates disqualified due to signature matching iirc.
I recall the Carter Center used to take a similar stance for foreign elections, but has quietly dropped it because it interferes with voting by the poor, the less educated, or immigrants, and including them is considered an important goal. Cynics can note that those are also groups that tilt heavily toward Democrats. Interestingly, requiring ID does not seem to change results much, but it does reassure the public, which I consider valuable in itself.
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