Most of the theories of election misconduct, even if proven, would not change the vote totals enough to overturn the outcome.
Most of the theories of election misconduct, even if proven, would not change the vote totals enough to overturn the outcome.
T here’s a lot going around right now among disappointed Republicans about fraudulent or illegal behavior by Democrats in the 2020 election. Donald Trump and his most vocal supporters claim that the election was stolen. There is a disconnect here: Most of the theories of election misconduct, even if proven, would not change the vote totals enough to overturn the outcome. That does not mean that Republicans and conservatives should roll over and do nothing, but we should temper our expectations and not go chasing rumors and conspiracy theories without evidence. The goal should be to unearth genuine misconduct, expose it to the sunlight, and prevent its repetition.
Seven states were decided by less than three percentage points. Biden leads the counted votes in six of them (the other being North Carolina). Trump would need to flip 37 electoral votes in order to force an Electoral College tie, or 38 in order to be declared the winner. That means three states — four if Nevada is one and Pennsylvania isn’t. There is no precedent for anything like this, requiring a shift of over 47,000 votes to change the outcomes in Arizona, Georgia, and Wisconsin and send the election to the House, or over 74,000 to flip Arizona, Georgia, and Pennsylvania. The margin in Michigan alone is a daunting 146,137 votes, a far cry from the 537-vote margin in Florida in 2000.
In other words: Don’t get your hopes up. This was, as in 2016, a close election decided by multiple close states, but not nearly so close that any reasonable quantity of shenanigans, tomfoolery, or skullduggery can explain the outcome.
Consider what has to happen. There are three general kinds of post-election challenges. One is a recount: checking to see if the votes were counted correctly. A machine recount can correct simple human errors; a manual recount is a way of assuring that machines were not programmatically wrong in some way. As Jim Geraghty has detailed, however, the average recount changes the totals by 430 votes, and the largest shift among any of the 31 recounts conducted over the past two decades was 0.1 percent of the vote. That’s half of the margin in Georgia and a sixth of the margin in Wisconsin or Pennsylvania. Still, a recount may be valuable in putting to bed conspiracy theories about voting machines of the sort that have blossomed on the Republican side after enjoying a vogue among Democrats in 2004 (remember Diebold?) and 2016 (when Harry Reid claimed that Russians had hacked the voting machines and changed the vote totals, and polls showed that a majority of Democratic voters believed him). An error with votes reported in Michigan by a Dominion Voting Systems machine stoked such fears; it appears that the error was in reporting rather than counting, but an audit can help allay worries. And Republicans should steer clear of exaggerated claims of Democratic ties to the company.
The second category is the election-law challenge: arguing that state or local election officials counted or excluded some ballots in violation of law. This is potentially the one way to move a large number of votes in or out of a candidate’s column at once, although it is often easy to overestimate quite how many of those votes there are. Such contests can, however, be hard to win after the fact, especially in federal court, where the courts can only police the outright disregarding (rather than questionable interpretation) of state law, and have doctrines cautioning against changing the rules late in the game. Some of the election challenges filed so far fit within this category, such as the Pennsylvania lawsuit over mail-in and absentee ballots detailed by Andy McCarthy, but none I have yet seen would actually change the outcome even if completely successful.
The third and hardest category of election challenge is to contest particular ballots as fraudulent. This is, as you might imagine, quite labor-intensive, and while elections have been thrown out in the past for fraud, the bar is high, and this is very rare. Suspicions of voter fraud or fraud by elections officials are not enough; you need hard, quantifiable evidence. Republicans have presented serious allegations in a lawsuit in Michigan, but again, do not appear to have a shot to overturn Biden’s large margin of victory in the state even if those allegations are proven.
So, yes, some of the actual lawsuits filed thus far make serious, concrete allegations, if not enough to actually change the outcome. But there are a number of bad arguments going around about election fraud or voter fraud, and they should be abandoned. The first, a sample of which was advanced by Joy Pullmann over at The Federalist, is that it seems suspicious that Trump would underperform down-ticket Republicans:
It would be mystifying if Republicans won more seats in the House, retained the Senate, and picked up state legislative seats, all while the same voters voted against Trump. Trump has solidified his support among Republican voters and enjoys a massive approval rating from them he didn’t have in 2016, and expanded his coalition to more working-class and minority voters this year. This is not a blue wave year. This is a year that the blue wave of 2018 appears to be receding. Yet we are supposed to believe the same media-Democrat complex that fed us wildly erroneous polls all year, and runs false information operations on us about coronavirus, the Russia hoax, and everything else they can use to steal power, that this blue wave’s evaporation did not at all affect the top of the ticket?
This is not mystifying at all. Down-ticket Republicans ran well ahead of Trump in many places in 2016, as I documented at the time. Senate candidates regularly run ahead of, or behind, the top of the ticket; John McCain ran, on average, four points ahead of Republican Senate candidates in the same state in 2008, while Jimmy Carter ran almost ten points behind the average Democratic Senate candidate in 1980. Susan Collins has been running ahead of national Republicans in Maine her entire career. Ticket-splitting has been a feature of American politics forever, and while it is rarer today, it is not gone. Just because Trump has high poll ratings among self-identified Republican voters does not mean he is universally approved among independents who might vote for some Republicans. You do not need a ton of familiarity with American politics to notice that there are still people out there (myself included) who vote for Republicans at every level but are not fond of Donald Trump. It does not take a large proportion of those voters to show up at the margins of races decided by less than a point.
A second, related argument is that there must be fraud because some number of voters cast ballots only in the presidential race, and left the rest of their ballots blank. Now, if I was going hunting for fraud knowing nothing else, I might scrutinize these ballots a little more carefully, since it is easier to mass-produce a ballot with one vote than with many. Then again, if you are sufficiently bold to engage in voter fraud, you’d think you would want to help your party up and down the ballot.
In either event, these presidential “overvotes” — voters picking a presidential candidate but not filling out the rest of the ballot — are a completely common and familiar feature of presidential-year elections. I ran the numbers four years ago just before the counts were finalized for states with Senate races in 2016, excluding California (where there was no Republican on the ballot) and Louisiana (which has a jungle primary system). There were 1.8 million more votes in the presidential race than in the Senate races, and over 100,000 overvotes compared with Senate votes in each of five different states: New York, Georgia, Florida, Ohio, and Pennsylvania.
Across the 30 states I reviewed in House races in 2016 — including all the battlegrounds and the largest states — there were 6.3 million more votes cast in presidential than in House races, with six-figure numbers of overvotes in 17 states:
Again, this should not shock us. Presidential races bring out marginal voters, many of whom vote only every four years and pay a lot less attention to the rest of the ticket. The final numbers changed a bit from these charts, but they tell a familiar story. Consider Pennsylvania. In 2016, the final totals showed 6,166,938 votes cast in the presidential race, 6,051,856 in Pat Toomey’s Senate race (-115,082), 5,741,751 (-425,187) in House races. And this year, there was no Senate race in Pennsylvania. Also, the state for the first time conducted an election without an option for automatic straight-ticket voting, so many low-propensity Pennsylvania voters had to fill out full ballots for the first time. We should reasonably expect plenty of presidential-only ballots in Pennsylvania.
Or look at Georgia in 2016: 248,220 voters, almost a quarter of a million people, cast ballots in the presidential race but not the Senate race. That’s 5.9 percent of all ballots.
Much of the election-fraud talk centers around big, Democrat-run cities in the key swing states. Quite reasonably so. But did they deliver unusual margins for Joe Biden? Mostly not. Look at the results from Wayne County, Mich., which contains the city of Detroit:
Donald Trump was actually the first Republican to crack 30 percent of the vote in Wayne County since George H. W. Bush got 39 percent in 1988. Joe Biden’s vote in Wayne County was up from 2016, but more or less in line with 2012. Yes, Wayne County provided more than double Biden’s margin of victory in the state, but is 587,000 votes really a suspiciously good performance? Detroit is a predominantly black city of 1.8 million people that has voted Democrat for decades.
What about Philadelphia?
This is a similar story. Biden’s vote in Philadelphia County was actually the lowest for a Democrat since 2004, and Trump’s was the highest for a Republican. There was a larger turnout surge in neighboring, mostly affluent, suburban Montgomery County, but Trump turnout was up there, too, and it seems broadly consistent with his struggles with suburban voters:
What about Milwaukee and Madison in Wisconsin?
Turnout was up, and third-party voting down, in Milwaukee, but Joe Biden’s vote total there was still lower than the Obama-Biden ticket got in its two victories in Milwaukee. Dane County, containing Madison, is a more dramatic story of increased turnout; if you are looking solely at turnout spikes to guide an investigation, that might be a more fertile field. The extra 35,000 votes added to Democratic margins in Dane County compared with 2016 was larger than the margin of victory in the state.
There has been a lot of talk about Wisconsin’s turnout rate. The nearly 3.3 million votes cast in Wisconsin was 7 percent more than in 2012, the largest prior vote total in the state. The latest estimate from ElectProject shows 76.1 percent turnout among eligible voters in Wisconsin, compared to 69.5 percent in 2016, 73.3 percent in 2012, and 72.7 percent in 2008. That is high, but the Upper Midwest has historically high turnout rates, and Wisconsin has same-day voter registration, so if you read about turnout almost matching or exceeding registered voters in some places, that may be because people showed up who had not been in the pre-election count of registered voters. Yes, same-day registration makes it harder to detect patterns of fraudulent votes as they come in for this reason, but the mismatch alone is often just a feature of comparing pre-election apples to Election Day oranges.
Then, there’s Georgia, with Fulton County (home of Atlanta) and the neighboring Democratic strongholds of DeKalb and Clayton counties:
This is where you have a genuinely large and decisive spike in turnout. Combined, these three counties added 29,000 Republican votes compared with 2016, but still fewer than the number of Republican votes in 2004, 2008, or 2012. But the Democratic vote increased by 156,032, and the Democratic margin increased by 127,038 votes — ten times Biden’s margin of victory in Georgia.
A surge in Democratic votes here is not that surprising. This has been a growing population area, Trump has been uniquely unpopular in Atlanta and its suburbs (the only part of the state he lost in the Republican primary in 2016), Democrats poured a ton of effort into registering and turning out more voters, and Georgia — unlike Pennsylvania, Wisconsin, and Michigan — was not really seen or treated as a presidential swing state in previous recent elections. Still, the sheer size of the turnaround understandably has Georgia Republicans raising eyebrows.
It is also not surprising that Georgia Republicans are in no mood for lectures right now about accepting the legitimacy of elections. The national media has made Stacey Abrams into a sort of secular saint for her sustained, two-year scorched-earth campaign against the legitimacy of Georgia elections and is now hailing her as a conquering hero of the Democratic turnout turnaround. That said, Republicans should meet the same put-up-or-shut-up test that should have been applied to Abrams: prove your claims in court or accept that you lost fair and square.
I believed and argued after the 2016 election that we ought to have a prompt, open, transparent, credible process to evaluate and reassure the American public about the extent of Russian interference in the 2016 election, in order to improve confidence in American elections. We did not get that. Because the task was assigned to a special prosecutor, work was conducted in the dark for two years, which allowed conspiracy theories to grow like mushrooms in the dark. Robert Mueller did not consider it part of his ambit, nor was it within his institutional competence, to evaluate the actual effects on the election.
The shoe is on the other foot this time, but the need is the same. It would be better to avoid anything resembling what Al Gore put the country through in 2000, but there is a lot of water under the bridge since then. After two decades of attacks on the legitimacy of our election outcomes, mainly from Democrats, it is important to take a patient, serious approach to public concerns. We may not get a satisfactory process to evaluate misconduct in the 2020 election and put to bed the more outlandish theories, but we ought to demand that our government make the effort.