That question is the one that lurks over the proceedings as various factions duke it out over the proper way to move on this: not merely to investigate (or not), but to talk about what happened, what may have happened, and how to phrase what we want out of the action checklist.
The first approach – let a new president be inaugurated – sees any investigation as being of collateral procedural interest. It wouldn’t be unimportant, per se. But it shouldn’t interrupt an outcome that is being framed as the conventional outcome: the one like all other outcomes, in which there may be some moaning and groaning from the loser, but the collegial assumption rules, that we have a unified national purpose keeping a lid on the consequences of getting it wrong.
The second approach has a different premise. That approach – don’t accept the electoral outcome as controlling until it has been fully authenticated – amounts to waging a fight. It’s not a fight against the electoral outcome. It’s a fight for the electoral outcome. It’s a fight to make sure it’s valid and fair, before agreeing to be governed by it.
Will this presidential election be the most important in American history?
The second approach says the stakes are too high to simply blow off the possibility of being wrong.
There are multiple aspects to this premise of the second approach. The two that concern us the most are, first, that we decide our fate as a nation and a people with elections, so the stakes are inherently high at all times; and second, that at this time, in 2020, the stakes are unusually high precisely because we can be gravely concerned that the party seeking to avoid election scrutiny has very radical plans for the country.
I’ve found it imperative to keep this sorted out in my mind as I ponder the commentary offered by some of our best minds and voices. Much of what they say is sound and judicious – and yet suited for approach one, but not so much for approach two.
The wise men weigh in
One example is what Victor Davis Hanson said to Mark Levin on Levin’s Fox News show Sunday evening. I’m paraphrasing at the moment – I’ll see if there’s a video clip to put up later – but basically, VDH’s point was that he wished proponents of a full scrub for the 3 November vote would phrase their goal carefully as an effort to determine who won, rather than speaking in rah-rah accents of Trump having certainly won.
That’s the sort of thing I tend naturally to agree with, and have even thought and said myself over the last couple of weeks. (Maybe not so much as a wish about what other people would do, but in trying to ensure I put it in such terms in my own comments.)
That said, I have also realized that it’s harder to make the case for approach two if you allow, as a sort of antiseptic abstraction, that it could very well be that Biden won in a fair vote, in spite of all the manifest irregularities that militate against that conclusion.
Suppose it’s necessary to push non-acceptance of the media-proclaimed “outcome” past the Electoral College vote date of 14 December. How that would be accomplished is yet to be determined; the approach of the Gore campaign in 2000 is one option (i.e., ask the Supreme Court for a delay). But whatever the method, it’s a very big deviation to try to craft a process for. Going that route would be waging a fight (one that Gore, remember, was prepared to undertake in 2000).
It may sound like a mere emotional or semantic difference, but it really does get at everything we think voting is for, to insist that the fight is worth it, and you fight not because you have a strictly neutral interest in where or if there was fraud, but because you think you won.
I perceive that to be the basic reason President Trump keeps tweeting out that he won the election. He’s establishing a justification for fighting: for a scrub, a recognition, a redress of the fraud for which millions of people think there is evidence. (I’m one of them, although I want to see more that clarifies the extent to which it affected the vote.)
He’s not merely trying to oversee a fair vote, although he is doing that. He’s fighting for a fair vote, for his millions of voters as well as for all Americans and our nation’s future. The question whether a fraudulent vote can put the highest public official in the land in office must be settled before it does so. If it isn’t settled in that order, no other, lesser fight even matters.
It seems to me that the sound, judicious point made by Andrew McCarthy at NRO about the lawsuit dismissed by the federal judge in Pennsylvania on Friday is one of those lesser fights. McCarthy’s point was in fact the first one that occurred to me about that lawsuit. It’s a two-plaintiff lawsuit, in which the complaint is that Republican-run counties in Pennsylvania didn’t have the same aggressively-administered opportunity Democrat-run counties had for mail-in voters to “cure” their defective ballots. The lawsuit seeks to have millions of votes thrown out on that basis.
McCarthy observes stringently that that’s a disproportionate remedy, and he doesn’t blame the judge for rejecting it. I can see where that’s a very reasonable point.
On the other hand, I can also see where it would be a disingenuous point, given the extraordinarily disproportionate remedies the federal bench has been known to impose in the past (a prime example being the epidemic of court-ordered busing for schools in the 1960 and 1970s).
It is fair, moreover, to recognize that federal court decisions in general, even those that aren’t about imposing mandates, can have sweeping effects on the people that go far beyond the narrow cases that prompt them. The Supreme Court’s landmark decisions on Obamacare (National Federation of Independent Business v. Sebelius, 2012) and same-sex marriage (Obergefell v. Hodges, 2015) are two such recent ones. It’s not as if the courts constrain themselves reliably to keep the impact of their rulings in proportion to the situations of the plaintiffs.
But McCarthy still has a good point. The problem is that his point is a comfortable fit for approach one, in which it is tacitly assumed not to really matter whether an election installs a new official by fraud, but it is a useless drag on approach two.
Should it be a fight?
The question isn’t really so much whether the most defensible tactics are being used to sort this vote-fraud matter out in court, as it is whether it should be a fight, or an academic inquiry with an after-action report and some recommendations.
Beyond that, if it is deemed to be a fight, the question is whether the courts hold much of a remedy for it anyway. This is the case even where the courts aren’t biased.
The courts don’t do well parsing human mens rea out from phenomena manifested through automation or statistical observation. Sometimes they go most improperly overboard in that regard, such as when they detect intentional “discrimination” in statistically disparate outcomes. Other times they are extremely wary of detecting culpable motivation at all in the records of computer systems, no matter how many experts say something must have been done deliberately.
And voting, in itself, is a difficult topic for the courts, especially on matters like proof of vote-harvesting. There will never be a case in which hundreds of voters show up to swear under oath that they didn’t mean to vote for what is marked on the ballots in their signed envelopes. If legislatures have decided to legalize vote-harvesting, the courts have no means of requiring integrity of the practice.
The integrity of the vote, in fact, is very hard to police if partisanship at the local and state levels makes it so. It’s the administrators of the vote who ought to be the first watchdogs for its integrity. Lack of trust in them can be well-founded; what we’re to do if it is remains a question with no single, satisfactory answer.
There are human, social questions that metastasize in scope and significance, beyond any court’s capacity to sift evidence and justly frame “proportionate” remedies. The social-trust aspect of voting is clearly one of those questions.
There is a profound, unbridgeable disagreement between two factions here. One faction is not willing to prioritize authenticating the vote above all else. That faction is more willing to accept perceived social alignment and convention – not dispositive situational proof – as the basis for agreeing to the most important decisions about governance, such as who shall take office.
That set of motivations tacitly assumes that there is little meaningful consequence for accepting voting outcomes that may well have been shaped by fraud.
The other faction cannot agree to be governed by a voting outcome produced by fraud. This faction is motivated by the certainty that to accept such a thing is to be governed by lies and corruption, and cannot turn out well by any calculation. It’s worth fighting against a potentially fraudulent outcome, and not merely taking notes on it and hoping to do something about it later.
The crisis is here
This is a profound crisis for America. In my view, it has reached the level of the question of slavery, which was too big an issue to be settled by conventional expectations for courts of law and social and political transactions.
In 1861, there were many Americans, as there are many today, who didn’t see the question as being that much beyond the scope of ordinary remedy.
But it was. For what it’s worth, I don’t foresee an armed battle erupting over the 2020 election, per se. That’s partly because there’s no obvious way to organize one. Unlike the situation of the Civil War, there’s no territorial division to make options plain.
But the spiritual divide between Americans who don’t perceive a crisis (or whose intention is to provoke one and benefit from it), and Americans who do perceive one, could not be deeper. Either there must be a fight, to authenticate the 2020 vote and ensure that it produces a new president only if it was really honest and fraud-free, or there need not be a fight, but only a formulaic consultation which cannot possibly establish the meaningful absence of fraud.
If the choice is supposed to be the latter, voting is meaningless anyway, and no one is under moral compulsion to agree to be governed by its “outcomes.”
