The Corner

‘Accepting Election Result’ – Much Ado About Nothing

In this election cycle, I sometimes don’t know whether I am merely watching different debates from everybody else or living on a different planet. The post-debate analysis about how well Donald Trump purportedly did made no sense to me, but even less can I understand the hysteria over Trump’s refusal to pronounce as legitimate an election that hasn’t happened yet (early voting notwithstanding).

Let me dispense with the first point first since it won’t take long. Trump was awful last night. He is an inept candidate who doesn’t know things and can’t hit a hanging curveball no matter how long it glides suspended in the strike zone. This fatal flaw could be hidden in GOP debates, in which there were so many participants and so little time for any individual candidate that he didn’t need to know stuff to get by – a few memorable (even if appalling) lines would do.

But vacancy can’t be concealed one-on-one for 90 minutes. Hillary Clinton is easily the worst Democratic candidate in memory; between her lack of accomplishment, policy debacles, thoroughgoing corruption, and manifest dishonesty, a merely competent debater would have had a field day with her. A good one – Christie, Fiorina, Rubio, Cruz … – would have crushed her. But Trump could do no more than occasionally remind us that she is unlikeable; he lacks the skill to take it to her. So the stage was strewn with missed opportunities.

As for the second point, Trump is likely to lose by a wide enough margin that it won’t make a difference. Still, I find to be ridiculous the “sky is falling” reaction to his refusal to say he’ll accept the outcome of the election.

First of all, this is yet another of these pointless public discussions in which we are sure to get nowhere because people use the same words to mean different things. What does it mean to “not accept the result” of the election? On one extreme, it could mean calling for violence and insurrection; on the other end of the spectrum, it could mean pronouncing the result illegitimate while not really trying to undo it; in the middle, it could mean not accepting defeat and attempting to reverse the outcome by peaceful means. If, when I say I won’t prejudge the election as legit, I mean I reserve the right to challenge it in court, but you act as if I’m hinting at a wave of domestic terrorism, who is the one who is being unreasonable?

The Democrats never accepted the result of the 2000 election; even after Bush was reelected, the left regarded him as illegitimate. And while there wasn’t fighting in the streets, there were serious consequences – when the going got tough in Iraq, the illegitimate presidency was inflated into the illegitimate war. The contested 2000 election wasn’t the whole explanation, but it was a premise of the toxic opposition to Bush that even included a movie fantasizing his assassination.

Meanwhile, Democrats fight tooth and nail against every commonsense measure to protect election integrity – paring the state voter rolls of those who have died or moved away, proof of identification, proof of citizenship, etc. And heading into last night’s debate, the day’s big story was the exposure of two top Democratic operatives who specialize in voter fraud and sabotaging campaign events.

Why on earth would anyone, least of all Trump, presume the legitimacy of an election that hasn’t happened yet when it is open and notorious that the other side is cheating and insists on maintaining the systemic vulnerabilities that allow it to cheat? Particularly when Democrats from Al Gore and Bill Clinton on down did not accept the result of Bush’s election, and Democrats framed him as illegitimate even after their legal challenges were exhausted (and then framed the Supreme Court as illegitimate for upholding the election result).

Overall, I thought Chris Wallace was stellar in moderating the debate. But I could not understand why, when Trump wouldn’t pre-pronounce the election as legit, he interjected with an admonition about the American tradition of “peaceful transition of power.” I didn’t take anything Trump had said to be a call for civil war if Mrs. Clinton wins. I took him to be saying nothing more than: They cheat, everyone knows they cheat, and I am not going to say the cheating doesn’t matter until we see how the election turns out.

To analogize, I believe deeply in the fairness of the U.S. court system having practiced in it for many years. If I were representing a defendant in a case to be tried against an honorable prosecutor and before a pillar-of-rectitude in a robe, I still would never, in advance of the trial, waive my client’s right to claim unfairness. That would be malpractice on my part and a violation of my client’s constitutional right to effective assistance of counsel. You always wait to see how the trial goes.

Importantly, if, as in every trial, there are errors here and there, that does not mean the trial was “rigged.” A competent lawyer reserves his right to challenge the result, but the result is not going to be overturned unless there was fundamental unfairness.

Or put it a different way. Until the NFL tightened up the rules about pass-interference (or, as some of us purists think of it, until the NFL outlawed pass defense), some teams famous for their fierce defenses beat up the opposition’s receivers on every play. Were they cheating? Of course. But in a very cold calculation, they figured, “Look, the refs can’t call a penalty on every play – the viewers and the league wouldn’t stand for it. Plus, the more we get away with, the more we expand the scope of what we should be able to get away with.”

Does this mean the outcome of the games was illegitimate? Not if, as was usually the case, these great teams won 38-7 – i.e., by some margin that made it obvious that the better team won. On the other hand, there was a game a couple of weeks ago that a team lost by 3 points because the ref failed to call a blatant pass-interference penalty. The result of that game was arguably illegitimate, but it’s not like anything is going to be done about it. Everybody groused … then moved on to next Sunday.

Like the peaceful transition of power, it is also a tradition in this country that, no matter how bitterly the  candidates battle each other for a major party’s nomination, they get behind the eventual nominee. Yet, one of the most boneheaded moves made in the GOP campaign was the early pledge, pried out of each of the candidates in the name of tradition, to endorse the nominee – with the result that candidates who had railed about Trump’s flaws were put in the impossible position of either endorsing someone they had said was unqualified or breaking a solemn pledge. Why not just wait to see what happens and then do the sensible, honorable thing once the facts are known?

The high likelihood is that Trump is going to lose decisively – I’m betting by more than Romney but, because Hillary is so awful, less than McCain. When that happens, it will be readily apparent that there was cheating, but that the real explanation for Trump’s loss is Trump. I could be wrong: the election could be surprisingly tight, and it could make a difference were cheating in a few strategically chosen districts to taint the result in an electorally significant state. In those circumstances, it would make perfect sense to challenge the result – just as the Democrats most assuredly would.

Why does recognizing this very real and hardly unprecedented possibility have to be seen as threatening “the peaceful transition of power”?


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