Edward B. Foley
Compare that history with what many fear could happen this fall. Another ugly campaign in a climate of hyperpolarized politics. An Election Night that ends in uncertainty. A period afterward in which armies of lawyers intensely inspect ballots, looking for voter fraud, and inevitably find some irregularities. Perhaps, on top of that, there will be charges that voters were swayed by foreign or domestic disinformation, as there were in the last election.
Will the candidates accept the result as happened in 1884? Should they? Before the country faces this dilemma, it is crucial to set some ground rules about just how to answer these questions.
Already, both nominees have suggested that if they lose, it will be because of wrongdoing on the other side, raising the prospect that they might not accept a loss. In a speech in August, President Donald Trump proclaimed, “The only way we’re going to lose this election is if the election is rigged.” The month before, Democrat Joe Biden declared that by discouraging voters from casting mail-in ballots, Trump will “try to indirectly steal the election.” Hillary Clinton, the previous Democratic nominee, went further, saying, “Joe Biden should not concede under any circumstances because I think this is going to drag out, and eventually, I do believe he will win if we don’t give an inch.”
It’s clear from this kind of provocative rhetoric that both sides need reminding of the lesson of 1884 — and a core tenet of the American electoral system: Not every defect in the voting process renders an election invalid. Now, perhaps more than ever — with all the uncertainty that the pandemic brings to the election this fall — we must draw a bright line between a flawed election and one that has truly failed. A flawed election is not ideal, but its results still should be accepted, unlike in a failed election, which does not represent the choice of the voters.
There are two key points to understand here in the context of the current election. First, disinformation, even by ill-willed foreign adversaries, does not, in itself, invalidate an election. Second, disenfranchisement, as abhorrent as it is, invalidates an election only when it exists on a scale large enough to affect the election’s outcome. What matters isn’t whether the process was perfect, but whether the democratic will of the people was served.
All elections have flaws. And in today’s environment of mistrust, it’s easy for politicians to exploit those flaws to cast doubt on the whole result. When problems inevitably arise this fall — and when the two sides inevitably raise objections — then the loser, the loser’s party and the American people need to be prepared to know whether there truly is cause for some kind of recount or “redo,” or whether to accept the electoral verdict and move on. What should we look for?
Begin with disinformation. There are some Democrats who, ever since 2016, have argued that that election was invalidated by Russian interference. Last fall, Clinton asserted in a CBS interview: “I believe [Trump] knows he’s an illegitimate president.” In her remarks at the Democratic National Convention last month, she included this line: “Vote for honest elections, so that we — not a foreign adversary — choose our president,” implying again that Russia was responsible for an inauthentic Trump victory.
It is indisputable, or at least it should be, that Russia maliciously attempted to influence public opinion in 2016, both through an insidious social media campaign and, even worse, by hacking into Democratic email accounts and dumping the purloined emails onto Wikileaks.
Whether Russia’s nefarious information campaign changed enough minds to make a difference is debatable. But even if it worked, it would have been the voters who changed their minds because of what they had read or heard. Meanwhile, there is no evidence that Russia tampered with the vote tallies that produced Trump’s victories in the states that won him an Electoral College majority. (Russia penetrated voter registration databases but did not alter voter information or votes.) As a result, there is no justifiable basis for asserting that Trump’s 2016 victory was anything less than fully legitimate. “A lack of votes, not a theft of votes” caused Clinton to lose.
This year, Democrats again might try to blame a Biden defeat, if it happens, on another round of Russian disinformation. Russia indeed is “at it again” — creating fake social media accounts encouraging voters toward Trump and attempting to hack campaign emails. But as long as disinformation operates to influence a voter’s choice, rather than to negate a voter’s choice — that is, prevent a vote from being cast (or erase one so it can’t be counted) — the collective choice of the electorate remains a valid exercise of popular sovereignty. Clinton and other Democrats need to get this straight.
This is not to deny that steps should be taken to counteract the influence of disinformation. Especially if the disinformation comes from abroad, it pollutes public discourse. It is important, in particular, to protect against disinformation designed to cause voters to distrust the electoral process and its capacity to produce accurate outcomes.
But ultimately Americans must be smart enough to avoid letting themselves be influenced by messaging that is designed to be manipulative.
Now, let’s consider disenfranchisement. As a matter of principle, no voter ever should be wrongfully disenfranchised. It is also morally repugnant that an incumbent president should want to disenfranchise eligible voters as a means of clinging to power. Whether it’s wildly exaggerating the risk of fraud from mailed ballots or suggesting that law enforcement officers should patrol the polls or using any other irresponsible rhetoric that appears aimed at suppressing turnout, no president should aim to win except fairly.
There undoubtedly will be claims that voter suppression is the only possible explanation for a Biden defeat. President Barack Obama came perilously close to suggesting this when he declared at the Democratic convention: “They know they can’t win you over with their policies. So, they’re hoping to make it as hard as possible for you to vote, and to convince you that your vote doesn’t matter. That’s how they win.” The former president is fully justified in being concerned about voter suppression, but Democrats and the country as a whole must be prepared for the possibility that Trump might win because enough voters make the choice to cast ballots for him.
Even if some voters are wrongfully disenfranchised, the existence of such disenfranchisement does not, by itself, negate the validity of an election’s result. One must measure the magnitude of the disenfranchisement against the winner’s margin of victory. Obama himself acknowledged as much when he gave his 2012 Election Night victory speech. He spoke of the need to “fix” the excessively long lines — sometimes six or seven hours in length — that had marred the voting process that day. Those lines undoubtedly and inexcusably disenfranchised some eligible voters, but they did not negate the validity of Obama’s reelection victory.
If the claim arises that Trump owes a reelection victory to voter suppression, the media and maybe even the courts will need to evaluate impartially whatever evidence there might be to support the claim. If the evidence is strong enough, then these institutions should label Trump’s reelection as false; a margin of victory is not genuine if it depends on disenfranchising eligible voters. But if, ultimately, there is insufficient evidence that voter suppression is the reason for Trump’s reelection, the result remains valid. Obama — in his role as a former constitutional law professor and the conscience of the nation’s democracy — should take the lead and guide his fellow citizens in recognizing the reality that “a lack of votes, not a theft of votes” caused Biden’s defeat.
Conversely, if Biden wins the election, and he does so because of mailed ballots for which there is no evidence of impropriety, Trump must accept Biden as the rightful winner. If Trump refuses to acknowledge this, then other Republicans, as well as the media, including conservative outlets like Fox News, must do so for him.
Senator Lamar Alexander, the Republican from Tennessee, should lead the way. During Trump’s impeachment trial in the Senate earlier this year, Alexander argued that the president should be acquitted so that the American people, not Congress, would be empowered to decide for themselves whether the actions for which Trump was impeached disqualified him from earning a second term. “I believe that the Constitution clearly provides that the people should make that decision in the presidential election,” Alexander determined.
The implication of Alexander’s principle is that, once the people make that choice, their choice must be respected. So, if Biden prevails in November, Alexander should be the first Republican in Congress to acknowledge this fact. This should be easier because Alexander is retiring, but he should be no less insistent that other Republicans in Congress join him in accepting the verdict of the people.
No one likes to lose, especially not when the stakes are perceived to be so high. But in any election, only one side can win. America already fought a Civil War because the losing side in the 1860 election was unwilling to accept defeat. One of the Union’s central reasons for fighting that war, as Abraham Lincoln reminded the nation at Gettysburg, was that the project of self-government declared in 1776 could not “endure” if the losing side in an election simply can walk away when it does not like the election’s outcome.
This year, the same proposition could be tested again. If either side cannot abide the other’s victory, self-government — government of, by and for the people — may perish here, if not elsewhere. For self-government to work, it is essential to be able to say when all the available evidence shows that “a lack of votes, not a theft of votes” is what caused the losing side’s defeat.