Missing a Crucial Distinction

The N.Y. Times this morning has as the top story on the front page of its website a very impressive statistical analysis of Trump’s statements sowing distrust in the legitimacy of the election in 2016, 2020, and so far this year.

In my judgment, however, this piece (like much other public discussions of this topic since 2016) conflates two different types of claims, which need to be kept separate if as a society we are going to have any hope of accepting and respecting the results of an election.

The Times piece, for example, lumps together (1) Trump’s false claim that he, not Biden, won more valid votes in enough states for 270 electoral votes in 2020, once allegedly fraudulent and thus unlawful votes are discounted, with (2) Trump’s complaints that the electoral process is “rigged” against him. Perhaps the most famous example of the first category is Trump’s brazen assertion on Election Night that “frankly, we did win this election.” An example in the second category, which the Times cites (without distinguishing it from the first kind of claim) is Trump’s assertion that this year’s election is “rigged” because of the Biden DOJ’s prosecutions of him.

The reason why it’s imperative (in my view) to keep these two categories distinct is because they relate to the “legitimacy” of an election in importantly different ways. If an election is indeed “stolen” because of enough fraudulent votes added to the tally determined which candidate was declared the winner, that fact–once proven in court–is sufficient reason for the court to overturn the invalid outcome. By contrast, even if it could be conclusively demonstrated that enough voters were influenced by DOJ’s prosecution of Trump to cause him to lose the election this year, that fact would provide no basis whatsoever for a court to declare the outcome invalid: the votes of those voters persuaded by the DOJ prosecution would still be valid votes, just the same as any votes cast by any eligible voters whatever persuaded them to vote the way they did.

Unfortunately, our nation’s public discourse about presidential elections has elided this crucial distinction in recent years. This has been a serious problem since at least 2016, when many prominent Democrats cast doubt on Trump’s victory on the ground that Russia attempted to influence the outcome of the election. Even if it could be shown that Russian disinformation caused Trump to win, that would not negate the validity of the votes cast for him in 2016–just as the Swiftboating of John Kerry did not negate the validity of the vote cast for George W. Bush in 2004.

Voters make up their minds about how to vote based on whatever sources of information, and even disinformation, they choose to believe. The ballots they cast as a result of their electoral choices are valid ballots, whatever the reasoning process they engaged in to make their electoral decision. They are not fraudulent votes that, if outcome-determinative, indeed must be excluded from the final certified result of the election in order to have a valid victory.

If as a society we cannot maintain the clarity of this crucial distinction, we cannot hope to know whether or not we have valid electoral outcomes worthy of respect. And if we cannot know that, we cannot sustain self-government.

There are many reasons to claim that the electoral process is “rigged” and illegitimate. One could argue, as many do, that the Electoral College system itself is unfairly “rigged” in favor of Republicans. One can contend, as many also do, that elections are unfairly “rigged” because of the influence of campaign spending that should be curtailed in ways forbidden by the Supreme Court’s interpretation of the First Amendment. One might also assert, as some do, that the electoral process is unfair because powerful media or social media companies are biased in favor of one candidate or another.

But none of these claims about the legitimacy or illegitimacy of the electoral process in a broad or philosophical sense of political legitimacy affects the validity of votes cast by eligible voters in the electoral system as it currently operates.

I discussed this point more extensively in a 2020 online article for the NYU Law Review as well as a follow-up piece for Politico.

To be sure, Trump himself continues to egregiously conflate this crucial distinction. He wants voters to be confused into thinking that there’s just as much a basis for repudiating the result because of an unfair DOJ prosecution as allegedly stuffing the ballot box with enough fake votes to flip the result.

But the fact that Trump confuses his supporters in this way is no excuse for the N.Y. Times to repeat the same mistake in its coverage of the topic. The Times appropriately views its mission as to inform and educate its readers, so that they can more intelligently understand and perform their essential role as citizens in our electoral democracy. Doing so requires explaining to its readers the distinction between (a) attacking the system because of alleged unfairness and (b) asserting that an election was fraudulently stolen.

Because Trump is attempting to undermine democracy by collapsing this distinction, it is all the more imperative that news outlets like Times carefully clarify this distinction in its coverage of the campaign.

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