Point of View: Prove It

The Founding Fathers put the responsibility for running federal elections in the hands of State legislatures, out of the reach of presidents. It’s one of the most important safeguards against autocratic rule in the Constitution, because it keeps the fox from being responsible for guarding the henhouse.

This system of distributed control over elections has generally been noncontroversial, though there have been significant legal challenges following some elections. The 2020 election was an outlier in terms of the number of recounts and lawsuits. A sizable portion of the country still has doubts about the fairness of the 2020 election, most notably among supporters of the current President.

I’m starting my essay on this note because it opens two issues relevant to elections and our lives in general. First, how do we, as individuals, come to “know” something to be true, as opposed to “believing,” or “feeling,” or “suspecting,” or simply thinking that it’s true? Second, how critical are we in making these judgments? Are we examining ideas carefully, separating well-established facts from our beliefs, feelings, and suspicions?

The standard for guilty verdicts in criminal cases is whether a “reasonable person” is convinced by the evidence against the accused, beyond a reasonable doubt.” Rules of evidence, standard courtroom procedures, and the adversarial relationship between plaintiffs and defendants help ensure that each trial is a fair test of the evidence presented. The appeals process is an important added guardian of fairness.

“We have a lot of theories, we just don’t have the evidence.” Rudy Giuliani said this after the 2020 presidential election, speaking as a member of President Trump’s legal team that was challenging the outcome in Arizona. Giuliani knew the law and the workings of government. He had been a federal prosecutor for six years and New York City’s mayor for eight years.

In representing Trump, Giuliani met with a committee of Arizona’s State Legislature. Trump was asking the state’s legislature to dismiss the electors awarded to Biden by the majority of Arizona voters, based on the claim that fraudulent votes cast by dead people and undocumented immigrants had led to Biden’s majority in Arizona. The suit asked the legislature to submit a new slate of electors committed to Trump for final certification by Congress.

At that meeting, Arizona’s State House Speaker Rusty Bowers asked Giuliani if they had evidence of these illegal votes. Could they provide lists of the names and evidence of how they voted?

After promising to provide the requested evidence, Giuliani admitted that they had numerous theories but no evidence. No lists of fraudulent voters were ever provided. Bowers recounted these matters during his testimony to a hearing of the U.S. House Committee on January 6, 2021.

His testimony was based on what he had heard directly from Giuliani, not hearsay about second-hand rumors. Giuliani was insisting that he knew there had been voter fraud, but it soon became clear that he was only suspecting it. He was representing his suspicions as facts, a kind of magical thinking.

Given his experience as the top federal prosecutor in New York City, he must have known that without tangible evidence to support his claims, he had little chance of success. As a big-city mayor, he must also have known that he was asking Arizona legislators to ignore the votes cast by millions of Arizonans.

Trump’s lawsuit was dismissed, after which Arizona’s Attorney General convened a grand jury, which indicted Giuliani, Trump’s eleven “alternate” electors, and several Trump staff members for attempting to overturn a state election.

This was only one of more than 50 lawsuits brought by Trump or his supporters. These challenges were filed in nine States and the District of Columbia, and one was submitted directly to the Supreme Court. None of them succeeded. Two other suits that had been dismissed at trial were appealed; one appeal failed, and the Supreme Court refused to hear the other case.

Science has an extremely specific standard for claiming that something is a fact. The standard is reproducibility. If I publish an academic paper claiming that something is true, that paper has to include a description of what I did (like an experiment), or saw, or measured (through observation or analysis) that convinced me that the thing I found is true. It must provide the information needed for someone else to replicate what I did or documented. This allows them to either confirm or cast doubt on my claim of making a discovery.

Election recounts use the same principle of reproducibility. It repeats the vote-counting process using the same rules of procedure. The 2020 Georgia vote count was so close that it triggered an automatic statewide recount, mandated by State law.

A nine-day hand recount gave Biden an additional 1,779 votes. Trump requested a recount of the recount, and a two- week machine recount confirmed the 1,779 Biden vote correction.

There were six other recounts of the 2020 votes involving five other states. They are concerned about possible irregularities at the county level. Two of them found additional votes forbidden (360 in Maricopa County, Arizona, and 87 in Milwaukee and Dane Counties, Wisconsin).

The recounts demonstrated that the ballots that were cast and met that State’s legal requirements had been counted accurately, meaning that they pointed clearly to the correct winner. There were some minor differences between the recount and original vote totals. Since the difference between Biden’s and Trump’s votes in a state, none of the recounts suggested that Trump, not Biden, had won those states’ electoral votes.

We can’t submit lawsuits to the repeatability standard of science. To do so would require multiple trials, each reviewing the same evidence but with different judges, lawyers, and jurors.

I’ve introduced the subject because our country has become deeply divided politically and dismissive of many who hold opposing perspectives. Are our political philosophies so different and inflexible? As we discuss politics, are we being clear about what we’re calling facts versus feelings or suspicions? In accepting the reasons we hold our political views, are we using separate and non-overlapping ways to evaluate how true they are?

Rational thinking is my North Star and my moral compass. I believe that wealth and health inequality, unequal access to education and job training, and the costs of health care, food, and housing are weakening our country and society. I’m not an economist, so I can’t prove these things. I wouldn’t try to convince others of it, but I believe them. I try hard to know the things I don’t know. It keeps me from magical thinking.

I don’t admire Thomas Jefferson as an example of morality or virtue, but I honor him as a scholar and an extraordinary writer. I keep the following Jefferson quotation on my phone and refer to it often. It draws a bright line for me between beliefs and facts.

“It does me no injury for my neighbor to say there are twenty gods or no god. It neither picks my pocket nor breaks my leg.”

When we discuss politics with people from opposing camps, can we acknowledge to ourselves and each other when we feel or believe something, even if we don’t know whether it’s a fact? In many cases, there won’t be any obvious, non-controversial facts available, so discussions will be about beliefs, feelings, and suspicions.

Can we agree, at least, that asking someone why they believe or feel something is true is not always an insult or a challenge to their intelligence? It may be an honest request for information.

If we hope to repair the torn fabric of our interactions, these might be effective ways to begin understanding one another and to better accept, even appreciate, our different perspectives.