Donald Trump and his defenders argue that the 2020 election was rigged. His critics protest that there is no compelling evidence of fraud. A point mostly missed about this controversy is that the two sides talk past each other. They are using different definitions, assumptions, standards of judgment, and rules of evidence.
As to definitions: By a crooked election, the defenders mean only a fraudulent election, but the critics mean one which is rigged. Rigged and fraudulent elections are not the same thing. For an extreme case, consider an election with no coercion and no miscounting, in which everyone is honest, only qualified voters vote, and only one party is allowed to run candidates. The election isn’t fraudulent, but it’s plainly rigged. Its outcome is a foregone conclusion.
Now consider an election in which dramatic changes in voting rules make mail-in voting and ballot harvesting much, much easier. That’s what we had in 2020, and what we may have in 2024. Should such an election be considered rigged?
The critics think it is rigged because whether fraudulent or not, it invites fraud, as well as manipulation: Fraud, because mail-in voting and ballot harvesting make it much easier for legally unqualified persons to cast votes; manipulation, because the earlier people send in their votes, the less information they have about the candidates. One party or the other may be better positioned to exploit these facts, and doing so may be part of its strategy. The defenders say all this business of inviting fraud is mere speculation. And as to manipulation, who are we to say how quickly voters should make up their minds?
But now we come to the differences in assumptions, standards of proof, and rules of evidence.
In assumptions, the critics and the defenders are unequally suspicious. The critics think that the stronger the temptation to commit fraud, the more people will engage in it, and the more effort it requires of them to become well informed, the fewer will go to the trouble. But the defenders think we shouldn’t draw such dark conclusions without compelling evidence. They resist criticism of electoral rules on the basis of what might happen, and insist that we consider only what can be proven to have happened.
In standards of proof, the critics and the defenders rely unequally on courts. The defenders emphasize that no court has found the case for massive fraud sufficient. “You have had your day in court, and you have lost.” But the critics believe that although courts are right to use the standard “innocent until proven guilty” when individuals are accused of crimes, life would be impossible if we made probable judgments that way. For judging who to marry, whether to cross the street, or how to design electoral procedures, they say, the standard should be common sense grounded in human experience.
In rules of evidence, the critics and defenders disagree about what should be counted as a fact or a possible fact. The defenders demand judicially admissible evidence of phony votes. But the critics believe that it is in the very nature of successful cheating not to be easily discovered. They are also willing to weigh many sorts of evidence of phony voting which a historian might be right to take into account, but which a court of law must reject out of hand.
Logically, it would be entirely possible for those who deny that the election was fraudulent to be justified by their lights, but for those who say that it was rigged for fraud to be equally justified by theirs. Questions about assumptions, definitions, standards of proof, and rules of evidence are largely about the meaning of fairness and the requirements of prudence. They surely have right answers, but the right answers can’t be ascertained by the crude techniques of the “fact checkers.”
Unfortunately, the patient discussion of these difficulties is hindered and skewed by the fact that one side risks public censure or even legal punishment for peacefully pressing its views, and the other side doesn’t.