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On the fallacy that there’s “no evidence” of fraud in this (or any) election: Paul Lehto reminds other EI activists that “we just don’t know the truth of the election,” and therefore must look into it, as usual

From Paul Lehto, who shared it with the members of a large group of election integrity activists (some of whom are now re-echoing the Democratic/media claim that there’s “no evidence” of fraud in this year’s presidential race—just as the Republicans, and media, did in 2000 and 2004):

A fallacy that often comes up in the EI context is the idea that a fraud claim is “debunked” or has “no evidence” to support it if there exists a plausible innocent explanation. For example, votes exceeding voters in Florida has perhaps been plausibly explained by changes of address after the election. 

But a plausible explanation does not by itself disprove fraud.  If it did disprove fraud, then wearing a disguise to fraudulently conceal one’s identity would always work because the person by virtue of the disguise would plausibly appear to be someone other than who they in fact are, and we then would accept the plausible appearance of innocence and never discover the fraud.  We are condemned to be fooled again and again if plausible explanations work AND we have a real cheating fraud on our hands! 

This is the primary reason election officials frequently claim that there is “no evidence” of fraud. What they often mean is that there is a plausible explanation that they consider to completely erase all concern. But they are in fact skating right past our intellectual faculties with an assertion of authority we are implicitly asked to accept based on trust or confidence: i.e. “there is a plausible explanation for this so everyone should just accept on trust and authority our declaration that there is nothing is going on here.” 

The truth is that we can’t know anything for sure without a thorough investigation featuring access to all of the evidence.  But they never give us that. They keep their cards close to their vest and demand that we trust their authority.  The problem is that election officials who are outright selling election results and committing election fraud would always think to prepare a plausible cover story to cover their tracks. 

When it comes right down to it none of us know the truth about this election. We mostly have degrees of skepticism based on who is making a claim or a plausible defense that we use to avoid the rather overwhelming and often impossible task of investigating every claim as it arises in our news feed. 

If we reverse the burden of proof and place it instead on election officials to prove results are correct they really can’t prove anything. (A full hand count would be required.) A robust RLA might increase confidence, but it assumes things that don’t necessarily exist: perfect chain of custody and integrity of both ballots and personnel. 

The truth is literally no one and no combination of persons really knows what the election results were for even a single state. Computer counts make those results inherently dubious and unknowable. Ballots are perishable in the sense that the more time goes by the less reliable they are because of chain of custody questions.  

This is why officials preach the gospel of “public confidence” in elections as central: because the results are inherently uncertain we must have faith in them. Yet in order to be a victim of fraud it is necessary to believe or have faith in something that just isn’t true. 

You could say that fraud is the cornerstone of our elections system now, because we are all invited to treat as certain, and to have public confidence in, something that is actually very uncertain.  When Michigan certified, this was partially on display because they kept saying that certification was “ministerial” and they didn’t really have either the authority or the evidence to change it.  So with certification, we all pretend that the result is now more certain, when in fact there is no great process to support this increased certainty, and what limited process there is contains some partisan disputes. 

More certain than election results are these legal facts:  The President is selected January 6 in a joint session. Congress can change or refuse to count electoral college votes. The December 14 electoral college vote, and any additional slates of electors forwarded by states (if any), in effect create the odds and handicaps going into the joint session. 

Additional legal facts: Certification is almost meaningless in fact, and by law certification has to happen before recounts or election contests can proceed at all – so it means little in the presidential context. SCOTUS has at least two cases before it that are potential vehicles to push things into state legislatures.  Will they?  Fundamentally the Presidency is a political question in that the idea that the electoral college must follow the will of the voters is just a strong argument or political claim, but it falls short of being an enforceable mandate (legislatures may punish or replace faithless electors but notice who is in charge of the electors!).  Media winner projections are devoid of any legal significance as are candidate concessions.  The media has us all believing in things that don’t matter, except that they create some political momentum in a political question leading up to January 6. 

What the media has called Trump’s lack of evidence is really just plausible explanations that do not disprove fraud, so there definitely IS some evidence of fraud, and we just don’t know the truth of the election.  

Truth is very hard to get at in elections. Most find uncertain truths to be anxiety-provoking, so they flee to the nearest available “certainty” and take it on faith. Faith and belief are what we resort to when we don’t or can’t know. 

Paul Lehto, J.D. 

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