Fight the Joe Biden Administration, Not Biden’s Election


President-elect Joe Biden speaks to reporters following an online meeting with members of the National Governors Association (NGA) executive committee in Wilmington, Del., November 19, 2020. (Tom Brenner/Reuters)

Conservatives have more constructive places to channel their anger.

Conservatives and Republicans should be uniting right now, leaving behind the arguments of the past five years about Donald Trump’s personality and character and focusing on how to oppose the Biden administration. Instead, the Right seems to have split once again into two camps. One camp believes that Joe Biden was not the legitimate winner of the 2020 election and sees the drive to “Stop the Steal” as an existential test of both conservatism and American democracy. That movement drew a large grassroots crowd to Washington this weekend in what became known as the “Million MAGA March”; Sidney Powell, one of the president’s lawyers, today called the election fight “the 1775 of our generation and beyond.” The other camp accepts that Biden actually won the election — or, at a minimum, that no legitimate pathway exists to prove otherwise — and is looking ahead to how conservatives can defend and advance their goals over the next four years and plan on recovering the White House.

Why are many of us not on board to “Stop the Steal”? I can only speak for myself, but I have four reasons that I think are pretty broadly shared.

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First, I do not believe the stolen election theory is true. I believe that Biden got more votes than Trump in the six decisive states that he won by margins ranging from 0.28 percent to 2.83 percent. Yes, voter fraud and election misconduct happen — including lawless actions by courts and election officials to count illegal votes and obstruct observation of the vote counts. Yes, American elections can be stolen — there have been at least two elections thrown out for fraud in recent decades (a North Carolina House race, due to fraud by Republicans, in 2018, and the East Chicago, Indiana Democratic mayoral primary in 2003), but those were both very close races where a few hundred votes were decisive. Stealing a statewide election is harder, but possible if the margin is small enough. I still believe that the Democrats got away with it in the Washington gubernatorial race in 2004 and the Minnesota Senate race in 2008 (the latter of which provided the decisive vote for Obamacare). But again, those races were decided by a few hundred votes. (If you really pushed me, I confess that I still suspect that the Democrats may have gotten away with another in the Connecticut governor’s race in 2010, but I would not claim to be able to prove that.) I do not believe it here.

The margin of victory in this race is at least 44,872 votes across three states (Arizona, Wisconsin, and Georgia). Had Trump won all three, there would have been a 269–269 electoral college tie, and the House would have voted Trump another term. To get Trump to 270, the margin expands to 107,587 votes across Pennsylvania, Arizona, and Georgia. Biden won each of the six closest states by at least 10,000 votes; at present count, he won Pennsylvania by 83,182 votes and Michigan by 156,643 votes. Fraud on that scale across multiple jurisdictions simultaneously is mind-bogglingly difficult to pull off without leaving significant footprints. The 1982 Illinois governor’s race — almost stolen by Democrats by virtue of 100,000 fraudulent votes in Chicago — was still concentrated in a single city with a well-oiled machine with many decades of experience in such shenanigans. It was still not truly that well-hidden: A grand jury was shocked at the “boldness and cavalier attitude” of Chicago Democrats. With the aid of “a unique tool in the investigation of vote fraud, namely, the use of a computer,” the FBI obtained sufficient evidence to convict 63 people of fraud.

And yet, this supposed fraud in 2020 failed to save numerous Democrats below the presidential level. In Arizona, for example, you can complain about the Democrat who serves as Maricopa County recorder, but if he was in on the fix, you might also ask why he lost his own reelection race. In Pennsylvania, Democrats lost two out of the three statewide races, both by agonizingly small margins. In Georgia, the Republican secretary of state fought to ensure a hand recount and other protections for the integrity of this election; it does not seem likely that he and his predecessor, the state’s Republican governor (Brian Kemp, a longtime hate figure on the left), are in on the conspiracy. The theory of fraud here is not only vast in scope, it is strangely narrow in its target.

Why am I not fighting this battle? Because I am not in the habit of saying things I do not believe to be true. I confess that I have not yet tracked down the details of every stolen-election conspiracy theory bouncing around; there are too many, and every time you debunk one of them, four more spring up. The theories of methods, participants, and locales are different, but somehow the conclusion is always the same. What I do know is that every time I have looked into a theory of rigging of this election, or read other serious efforts to get to the bottom of one, it turns out to be either shot full of falsehood or pure speculation, or it focuses on too few votes to make the difference. What I do know is that the president’s legal team has had the time, manpower, and resources to scour the key swing states for two weeks now, and they have yet to unearth and present enough evidence to overturn the outcome. And I specifically do not believe in the various theories that voting machines were rigged, a rabbit hole that I regularly mocked Democrats and progressives for going down in 2004 and 2016. Such theories have the convenience of being vast and relying on technological concepts most Americans do not well understand, but they invariably crumble upon close interrogation.

Second, and related, I cannot prove it is true. Extraordinary claims require extraordinary evidence. The stealing of this election would be the largest crime in American history — an extraordinary claim indeed. I share the suspicion that widespread mail-in balloting led to unusual opportunities for fraud in this election. But as a lawyer, I am inclined by training to think not in terms of suspicion, but in terms of what can be proven. If I see evidence that supports the theory, I will change my mind. I have tried to keep as open a mind as possible in that regard. But if I am going to put my credibility as a writer behind the assertion of a stolen election, and if I am to demand extraordinary action by or against our government, it will be because there is publicly available evidence to support the theory, not just because I have suspicions, or because I would like it to be true, or because I want the approval of others who want me to join them.

Third, it is not going to work. There is simply no workable plan to change the vote totals in enough states before the electors are certified. Andy McCarthy ran through the most recent state of play in Pennsylvania yesterday, and Jim Geraghty covered the situation with state certifications this morning. Could the legislatures step in and choose Trump on their own, as anonymous sources claim the president is requesting? There are legal impediments to certifying a slate of Trump electors in states that held a popular vote, where a result was certified showing that more votes were cast for Biden. Yes, a state can constitutionally choose to pick electors without conducting a popular vote, but once that vote is held, it cannot simply disregard the results. At a minimum, the state legislatures would need to change their laws, and the Democratic governors of Pennsylvania, Michigan, and Wisconsin are not going to let them. Republican state legislators are not likely to immolate their careers to push such steps through, especially knowing that it will not succeed in the end. Yes, there are times when you pick a fight you know you cannot win, in order to stand for principle and proclaim the truth, but why should anybody press a step as destructive and doomed as this if he does not actually believe in it or think it will succeed? The reality is that Joe Biden will be sworn in on January 20, and nothing anybody does can prevent that. Our job is to plan for what comes next.

In fact, even leaving truth and falsehood aside entirely, claiming that the election was stolen while knowing that you cannot stop it is a show of weakness that is politically self-destructive. “Democrats tried to steal this, and we beat them anyway” is a strong message. So is “Democrats tried to cheat and we caught them and prevented it.” Telling Republican voters that shadowy forces made their votes pointless, successfully installed a new president, and eluded capture is a message of weakness, impotence, and despair. Republican voters have nothing to be ashamed of: As a share of all eligible voters, even amidst a pandemic, they turned out in larger numbers for Donald Trump in 2020 than for any Republican presidential candidate since 1984. Trump got a larger share of all eligible voters than any candidate of either party in 1944, 1948, 1960, 1968, 1976, 1980, 1988, 1992, 1996, 2000, 2004, 2012, or 2016. Because of Republican votes down the ballot, if Republicans can retain the Senate, Biden takes office as a hamstrung president on borrowed time. Why should any conservative want to discourage those voters from believing that their participation matters?

Fourth, this is a dangerous step. Accepting electoral defeats is a crucial virtue without which our democracy cannot survive. Of course, if it was genuinely clear that an election was stolen, it would be incumbent upon believers in democracy to disregard that norm in favor of the higher value of preserving the integrity of the vote. But actively taking steps to stop an elected presidential transition is fraught with risks for the collapse of our system. Yes, Democrats have done all sorts of mischief in recent years, up to and including efforts to thwart Donald Trump’s exercise of the presidential powers to which he was duly elected in 2016. But again, stopping the presidential transition of power is a drastic step that should only be undertaken on the basis of evidence of a stolen election, not mere suspicion.

None of this means we do nothing. I have continued to advocate the lawsuits and recounts and audits to continue down every plausible avenue, because it is better to have a legal process that examines these kinds of challenges to election integrity on the basis of law and evidence than simply to have theories running loose with no way to contest them and no venue in which to develop and present evidence. If there are 100 bad votes in an election decided by 10,000, those 100 may not have stolen the result, but they are still a problem, just as Russian meddling was a problem in 2016 even though it did not decide the election. So yes: Let the process keep going, let the sunlight in, and make every case that one can for exposing genuine misconduct and improving our election systems in the future. But the real fight ahead is for the Senate in the January 5 runoff in Georgia; with the Biden administration in the next four years; and ultimately, for reclaiming the White House in 2024. Those are the constructive places to channel conservative anger. If you think otherwise, I bear you no ill will, but my open invitation stands: Prove it.

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