Today, the Trump campaign lost another election fraud case, in Pennsylvania. It reminded me that, in my recent economic explanation of why this alleged fraud is highly implausible, I forgot one factor: election rigging is usually committed by the government in power, because it is the only group that has the necessary resources and control over election processes. Indeed, election laws and procedures are mainly designed to prevent fraud by governments, which is the main danger. The fraud claimed by the Trump campaign would probably be the only one in the history of democracy to have been committed by the opposition against the government in power. The White House, the Senate, and most state governorships were held by Republicans and Trump allies. This strange fact makes the hairy fraud and conspiracy theories promoted by the Trump campaign even more implausible.
Other interesting issues are raised by the Wall Street Journal story (“Court Denies Trump Campaign’s Appeal in Pennsylvania Ballot Challenge,” November 27), when it reports:
“Calling an election unfair does not make it so,” wrote U.S. Circuit Judge Stephanos Bibas, a Trump appointee, for the three-judge panel. “Charges require specific allegations and then proof. We have neither here.”
Judge Bibas was joined by Judge Michael Chagares and Chief Judge D. Brooks Smith, both appointees of George W. Bush.
(A non-gated story about today’s decision is available from AP: “Appeals Court Rejects Trump Challenge of Pennsylvania Race.”)
Note that the Pennsylvania ruling was signed by a “Trump judge,” not an “Obama judge” as Trump used to say about judges who made decisions he did not approve. This suggests that many of Trump’s judicial nominations were surprisingly well chosen, as I argued in another post earlier today.
The claim of “unfair” election by the Trump crowd is also interesting because that’s how they also attack international trade. They don’t want free trade and free elections, but fair trade and fair elections. I suspect they also want fair speech instead of free speech and fair enterprise instead of free enterprise. As Anthony de Jasay suggests in his book Social Justice and the Indian Rope Trick (see my review in Regulation), fairness resembles social justice: it is now so empty a concept that it just means “nice”—nice from the point of view of the person who invokes it. Perhaps “fairness” is becoming, or has become, the rightists’ magic, sacramental key that corresponds to the left’s “social justice.”
READER COMMENTS
Luke
Nov 27 2020 at 10:24pm
Note that elections in the US are run by the states, not the federal government
Pierre Lemieux
Nov 28 2020 at 10:49am
@Luke: This is an important point and is what I was getting at when I wrote (see the link to my previous post):
George Otto
Nov 28 2020 at 2:54pm
Pierre, I think you have this almost exactly backwards. The fact that the presidential election can be swung by the outcomes in only a handful of swing states makes it easier to fix the outcome, not harder.
Such a fix does not require a grand fraud spanning from coast to coast. And it demands virtually no direct cooperation from any part of the federal government. It needs only focused action by local officials in a few big cities like Philadelphia, Milwaukee, and Detroit.
Further, all 3 of those cities have Dem mayors (I would bet that they all have Dem city councils too). And all 3 of those states (PA, WI, and MI) have Dem governors.
So, the alleged fraud in question very much would be election rigging “committed by the government in power.”
Mark Bahner
Nov 28 2020 at 4:32pm
If it’s in single city, then the proportion of the fraudulent votes (relative to the total votes in that city) must be very high.
For example, Wayne County (which includes Detroit) had approximately 862,000 votes for Biden or Trump in 2020. And Biden won the state by 154,000 votes. So the percentage of fraudulent votes in Wayne County would have to be unbelievably large to sway the results in the state of Michigan.
And there’s also the fact that the boards of canvassers for all the counties and the state of Michigan are all evenly split…two Democrats and two Republicans.
Michigan Boards of County Canvassers
George Otto
Nov 28 2020 at 7:45pm
I didn’t intend that list to be exhaustive, but for the fun of it, switching ~9% of that total from Biden to Trump would get you to 154k. And neighboring Oakland County had nearly as many votes for either candidate (760k) despite having 500k fewer people. So I think it is fair to say that a hypothetical fraud would not need to operate beyond the metro Detroit area.
This is a bit of an aside, but I was curious so I checked the MI state site, and there are 927k active registered voters in Oakland County, so that looks like an 83% voter turnout. Idk where that ranks historically but it’s gotta be up there.
At any rate, your mentioning election canvassers is precisely the sort of thing that I was thinking of when I said that a successful fraud only requires complicity from a (relatively) small number of local officials. Assume that the Ds on the canvassing board are rubber stamps. All you need to do is secure one of the two Rs and you have won certification. Incidentally that is exactly what happened in Wayne County, with 1 R abstaining, and the other only voting to certify after being subjected to horrible harassment.
Further, the margins are much narrower in the other key states. 80k in PA (much larger total population too), 20k in Wisconsin, 10k in Arizona, 13k in Georgia.
Mark Bahner
Nov 28 2020 at 4:59pm
And let’s look at the Secretary of State in Michigan: Jocelyn Benson, a Democrat (the horror!).
She has a law degree from Harvard. She was the *dean* of the Wayne State University Law School. Husband in the military. And, from wonderful Wikipedia:
Does anyone seriously think that, if she had any suspicion of massive election fraud in Michigan, even if it was in favor of Joe Biden, that she would look the other way? A former law school dean? Selected to serve on the national board of directors for a non-profit set up by U.S. Supreme Court Justice Sandra Day O’Connor improve civics education? Founder and current director of the Michigan Center for Election Law (“…which hosts projects that support transparency and integrity in elections”)?
Craig
Nov 27 2020 at 11:01pm
“election rigging is usually committed by the government in power,”
But that is federal and at the state level there is this bizarre mixture playing out, though I understand your point.
The problem is that the governments (plural) election was illegitimate, ab initio, before even a single ballot was cast.
A well known ethical standard for attorneys is the mere APPEARANCE of impropriety. Not even an ACTUAL impropriety. In other it just needs to look. They knew going into this thing that it was going to, at minimum, LOOK bad.
There was Paterson, NJ, all kinds of stories from leftists before 2016 about how prone to fraud mail in ballots were. Nadler on YouTube and NY Times article saying essentially the same thing.
I watched it and looked like Trump won it and they decided he wasn’t going to be allowed to win. That is what it looked like to me and apparently a large percentage of Republicans think ill of this election.
Well? It looked bad for sure.
So now there’s a problem. In a civil litigation there actually IS no time for Trump to make a case and no matter what they might say about Trump not having evidence, bottom line Trump wouldn’t be the party in physical possession of the evidence of a crime, that, by definition, the perpetrators wouldnt be cc’ing memos to Trump’s counsel. Indeed, people who commit fraud tend to do so in ways that they don’t get caught, even destroying traces of their crime.
But, I digress a bit because as a Republican voter, I’m not an actual litigant. But I am a juror in the court of public opinion as to the governments’ legitimacy. And I don’t bear the burden of proof here, the governments bear the continuous burden of proof that their actions are legitimate.
My verdict is: illegitimate. Sure? Maybe Trump can’t prove his case. But the governments aren’t proving a thing to me as far as I’m concerned.
On top of which, frankly, I must say I actually don’t care if they did prove it anyway because the goals are inherently illegitimate anyways. Why should I concede legitimacy to a bunch of people who have made and now make further claim to a moral right to take more than half my income? To those who would pack the Supreme Court?
I’m sorry but when the Rubicon is crossed, I don’t care if 50%+1 of the plebs approved of the crossing.
Undermining and defaming the elections is, as far as I’m concerned, the proportiomate response consistent with a nonviolent right of revolution (the right of revolution doesn’t necessitate war).
Now people don’t like this for sure. Good, I’m glad they don’t.
Frankly, from my point of view, the US Constitution is an experiment in limited government that has failed.
As of 11/27, Trump’s legal challenges are, indeed, failing and from what I have read in non-Newsmax media, unlikely to produce a Trump victory.
If it were me, I’d throw down the gauntlet right here, right now and create the constitutional crisis that I believe is necessary to end the obvious dysfunction.
And when push comes to shove, I’d take my chances with Pinochet over Allende any day.
Dylan
Nov 28 2020 at 8:09am
Craig,
A genuine question; it seems that many on the right share your views, but I have trouble understanding, what exactly gave you the sense of impropriety before any ballots were cast? Is it just the fact that you don’t trust any mail-in ballots? I hail from a part of the country that has been holding all elections by mail for a good long while, and where it doesn’t seem to advantage any one party or the other.
I’ll give it to you that some Democrats made claims about mail-in ballots issues prior to 2020. I was at a forum on voting access with Bill DeBlasio back in early 2017, and he was opposed to relaxing New York’s famously uptight rules on absentee ballots, but I saw that then (and now) as a naked political calculation based on how it would affect the party in NYC. No-excuse absentee ballots make it easier for older people to vote, who tend to be more conservative (even in liberal NYC) then the young progressive part of the party that can mobilize for primaries (which are the only election that matters here).
The broader question is why you (and many others) find it difficult to believe that Biden won without the help of fraud? Surely, it can’t come as a surprise that much of the country despises Trump? Doesn’t the results of the Senate and House races suggest that many people were voting against Trump and not against conservatism more broadly? Doesn’t it seem unlikely that a big conspiracy to favor Democrats would fail so badly in all the down ballot races?
George Otto
Nov 28 2020 at 11:28am
No, because the point of the alleged fraud was only electing Biden. The fact that Trump lost despite Republicans’ gaining dozens of House seats is perhaps unprecedented. Do you not find the fact that so many ballots simply check “Biden” and no one else strange? Especially since it doesn’t happen for Republicans?
More generally, you (and Pierre) use the word “big” to describe the purported conspiracy at work. But how “big” would this conspiracy really need to be? Is the coordinated mendacity required to fix the elections in PA, WI, or MI– all states with Dem governors– any greater than that which animated and sustained the “Russia” nonsense for 3 years? How much easier would it be to hide illicit activity when 90% of the media and a sizable chunk of the country view said activity as the lesser of two evils?
And officials in those states have had months and months to prepare. This is especially evident in PA, where, in the run-up to the election, the Dem gov did everything possible (and then some) to maximize the number mail-in votes and the Dem state AG made public statements such as “when we count all the ballots, Biden will win.” What do you make of PA’s flaunting of the Supreme Court order to segregate ballots by the date they were received?
What about the election observers who were denied access to ballot counters in Michigan and PA? Putting cardboard over the windows at polling places? The recalcitrance in Georgia at the suggestion of signature verification for mail-ins (the importance of which Obama extolled publicly in 2012)?
It is common knowledge that big city political machines fixed elections in the past. When exactly did they lose this ability? In May 2020, federal law enforcement agents arrested an elections judge in Philadelphia for ballot stuffing. He’d been fixing elections for years.
Above you Craig referenced the standard of the appearance of impropriety. I fail to see how the events of this election do not, at minimum, create an appearance of impropriety sufficient to warrant full/further investigation. And if that investigation never comes, I also fail to see why it is unreasonable to question the legitimacy of the election.
Jon Murphy
Nov 28 2020 at 3:33pm
It happens in just about every election. The same folks voting for President are not the folks voting for House and Senate seats. I vote for President, but I have no influence on the votes outside 6th Maryland.
George Otto
Nov 28 2020 at 4:39pm
Sorry, I should have been clearer. I was referring to the Republicans’ net gain in House seats, which it also appears that I overstated. As far as I can tell it looks like they gained about 10 seats.
I think I was misremembering a list of “up for grabs” House seats I saw in the NYT before the election that listed ~30 seats, all or nearly all of which were won by Rs.
Pierre Lemieux
Nov 28 2020 at 11:10am
@Craig: You raising what is the main question of political philosophy: What makes the state legitimate, if anything? Are we morally obligated to obey laws? (See, for example, John Sanders and Jan Narveson, For and Against the State [Rowman and Littlefield, 1996]; and my two little posts at https://stageeconlib.wpengine.com/the-basics-anarchy-and-public-goods/ and https://stageeconlib.wpengine.com/is-the-state-your-father-or-your-mother/.) Economics is certainly essential to carry out this philosophical enquiry; see (again just an example) https://stageeconlib.wpengine.com/library/Columns/y2018/Lemieuxstate.html.
Pierre Lemieux
Nov 28 2020 at 12:25pm
@Craig: Your last paragraph raises a question whose answer may depend on whether your vote is (unrealistically) pivotal or not. In 1933 (or “any day”), would you have taken your chances with Hitler over Vogel or Thälmann?
Fazal Majid
Nov 28 2020 at 5:21am
Or that people who enter the judiciary are still mostly driven by respect for the rule of law. How much longer that will last if the current political polarization continues is anyone’s guess.
Pierre Lemieux
Nov 28 2020 at 11:13am
@Fazal Majid: Yes, that’s an important point. A big part of the damage done by Trump has been on the rule of law. But one could argue that the quality of his judicial nominations, shown by “his” judges defending the rule of law against him, repairs part of the damage.
Weir
Nov 29 2020 at 9:50pm
One judge who doesn’t care for the rule of law is Emmet Sullivan.
I think if a judge wants to pursue someone for “treason” he ought to offer some evidence in support of the accusation.
Jon Murphy
Nov 28 2020 at 7:09am
You make a good point, but arguments I’ve seen by some True Believers go like this:
Trump is a disrupter and fights for the American people. He’s fighting against the Deep State, who are the real rulers of the government. The fraud is being committed by the Deep State to maintain their power and stop Trump from freeing us.
(I paraphrased the above)
Some variation of that argument is what I’ve gotten I’m response to my question “Of the election was rigged, why didn’t the Dems also rig the Senate and House?”
Pierre Lemieux
Nov 28 2020 at 11:17am
@Jon Murphy: Good point and good answer! Of course, why it is unlikely that the “deep state” (which exists for better and for worse) will mount a large criminal conspiracy was the question I (think I) answered in my first post.
robc
Nov 28 2020 at 2:10pm
But we know parts of “the deep state” were willing to commit a large criminal conspiracy in 2016.
Pierre Lemieux
Nov 29 2020 at 12:06pm
But not a criminal one.
Weir
Nov 29 2020 at 9:49pm
Personally I think it’s a bad thing for FBI officials to abuse their powers, but in the case of Kevin Clinesmith he also broke the law.
So even if we set the bar really low, and we’re willing to excuse everything short of a crime, then the FBI didn’t clear it. Clinesmith didn’t pretend otherwise. He was willing to break the law, and he wasn’t smart enough to not get caught.
Presumably he’d convinced himself that lying becomes morally good if it’s a lie about someone connected to Trump.
robc
Nov 30 2020 at 10:16am
How is falsifying evidence to get a warrant not criminal?
Sure, its a crime committed daily without recourse by cops across the nation, but that just makes the conspiracy bigger, not smaller.
KevinDC
Nov 28 2020 at 7:34am
Yet another reason why Trump’s fraud claims are wildly implausible is simply how soon he made them. The scope of the fraud he’s claiming occurred is quite staggering. If such a massive and coordinated effort took place across so many places, establishing that would take a serious and thorough investigation which would require a significant amount of time. What, then, are the odds that such evidence was gathered, vetted, confirmed, and made its way to the President, within a handful of hours of the election beginning, and at the very moment the President’s momentum started to break and his opponent began gaining on him?
Like many of the narratives of the woke social justice left, this claim is just so obviously absurd, self serving, and disconnected from reality that its genuinely difficult for me to think anyone really, truly believes it.
Pierre Lemieux
Nov 28 2020 at 11:39am
KevinDC: Indeed, including your last paragraph. What makes Trump’s claim even more absurd, is that he prepared it with fraud warnings before the election, just as he had done before the 2016 election, only to bury the claim after he was elected including with a Commission rapidly disbanded without any result. At that time, however, he did say that he would also have won the popular vote without illegal immigrant votes (give to Trump what belongs to Trump and to God what belongs to God). That all this can happen and not shock the third of the electorate that voted for him (in both elections, 1/3 voted for him, 1/3 for the other major candidate, and 1/3 did not vote) is discouraging (notwithstanding the voters’ rational ignorance).
KevinDC
Nov 28 2020 at 12:41pm
Very true. His claim about the popular vote last time around is another example of this sort of absurdity. It was only a couple of days after the election that he tweeted out that he really won the popular vote when you consider that millions of illegal votes were cast. Again, a huge claim, asserted with total confidence, with no evidence to support it, made in a shockingly short time.
What is the more likely explanation for such a claim? That within a couple days of the election, before even officially holding his first government position ever, Trump managed to gain evidence definitively proving the existence fraudulent votes being cast nationwide by the literal millions, that had all somehow gone unnoticed by anyone else, and that during his entire presidency (for some reason) he just never got around to launching any real investigation that would definitively identify even a single person who participated in this staggering fraud? Or is it more likely that he’s just psychologically incapable of acknowledging coming up short, in any regard, and he compulsively declares whatever he needs to be true to never have to admit it? If you genuinely think the former is more likely, please contact me as I have a wonderful investment opportunity for you. No checks please. Cash only.
Michael Stack
Nov 29 2020 at 9:44am
Very well said, and I agree 100%.
What’s really shocking to me is that the last poll I saw showed 79% of Trump supporters believe that Biden was elected as a result of fraud. Now, the framing of a poll matters, and how they select the participants, etc., but even if the real number is 40%, it is still amazing.
Alan Goldhammer
Nov 28 2020 at 9:08am
Very nice post and I particularly liked this:
Fairness is in the eye of the beholder and as a result resists easy definition. Free is ‘free’ and not subject to capricious definitions. Fairness can be used by autocrats but free cannot.
KevinDC
Nov 28 2020 at 10:03am
Very well said.
Mark Brady
Nov 29 2020 at 9:15pm
Pierre, you draw a distinction between “fair trade” and “free trade.” The focus of my comment moves away from the context in which you wrote above to ask you whether you think that the Atlantic slave trade was “fair trade,” “free trade,” or something else? I imagine that you would claim that the slave trade was inherently neither “fair” nor “free.” I agree. That said, I suggest that recognizing this moral truth points us to the crucial question of the justice or injustice of any particular system of property rights that underlie “fair trade,” “free trade,” or any other sort of trade. And further it points us to the inadequacy, nay, absurdity, of discussing any trading system as either “fair” or “free” without further qualification.
Weir
Nov 29 2020 at 9:43pm
At this point four years ago the conspiracy theorists were urging “faithless electors” to ignore the results and just announce Hillary the true recipient of each state’s Electoral College votes.
NBC’s Chris Hayes, for example. E.J. Dionne at the Washington Post. Peter Beinart in the Atlantic.
In Hollywood, Martin Sheen and Christine Lahti and Jason Alexander.
From Harvard, Steven Pinker and Larry Lessig and Larry Tribe.
In fact Tribe had been accusing Trump of “treason” for months. He said Trump was in violation of the Logan Act. The media was “rigged” against the Democrats, he said. In the mind of Larry Tribe, Trump wasn’t a mere “Russian spy” but worse. Rex Tillerson was another agent of the Kremlin too, like the traitors Michael Flynn and Carter Page.
Tribe didn’t sober up even after the Mueller probe. This is from September: “The meticulously reported works by Michael Schmidt and Peter Strzok make clear that Trump has succeeded in preventing any real investigation of what Putin has on him and how he became Putin’s useful idiot–a Russian asset in the Oval. Reelecting Trump would put Putin in control.”
So it seems like the professor ought to give credit to Trump now for delivering the cleanest, least corrupt election ever.
When Obama was in power, according to Tribe, the Kremlin committed a massive fraud, more astonishing than any crime in history.
Four years later, with Trump and Putin having dug their tentacles even deeper into the once-pure American soil, Putin chooses Biden. Or does the professor believe that Putin only rigged the election in Florida and so on?
J Mann
Dec 1 2020 at 9:43am
The simplest fraud theory in the US is that a few key late reporting counties in a few key states falsify votes by waiting to see the likely margin, then falsifying enough votes to turn things the other way. Since counties are often controlled by the opposition party, this isn’t impossible, but the more counties you think need to be involved, the harder it would be to cover it up, particularly since the states have tracking and recount procedures.
In Trump’s case, it would have to be several states in order to flip the election, including at least one state (Georgia) that’s under Republican control at the state level. It seems really improbable that there could have been material county level vote fraud operations in all the states Trump needs to flip, but none of them have gotten caught.
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