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Culture War Roundup for the week of December 4, 2023

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So can the deep state have prevented Bush from winning?

There's a half-decent case that Gore's attempted recounts were an attempt to do this. In practice, asking the friendly partisan leadership of the most friendly partisan voting precincts to make sure they didn't miss any ballots sounds a lot like "find me some votes" with a veneer of respectability to it, which is effectively what the (partisan) ruling on Bush v. Gore found, specifically that different recount standards in different counties violated Equal Protection.

I think the fundamental problem with Florida 2000 was that the election was so close (on the final official result, a 537 vote margin out of 6 million votes cast), the punch card voting machines were so bad (1000-2000 difference in the final margin depending on how you adjudicated the chad), and there was so little experience of adjudicating close elections, that there was no "true winner". Given that handling ballot papers in order to recount them can affect the status of the chad, it is entirely possible that it was physically impossible to identify the true winner (based on the state of the chad at close of polls) even if there had been a generally-accepted set of rules for chad adjudication.

The rationale of Bush vs Gore was that the SCOTUS ruled, correctly, that Florida in 2000 was technically incapable of counting a close election in a constitutionally sound way in the time available between close of polls and the Electoral College deadline. The media-funded recount would go on to determine that Florida in 2000 was technically incapable of counting a close election at all. The remedy in Bush vs Gore was for the justices to decide, on a partisan party-line vote, to throw out one unconstitutional vote tally (the partial hand recount requested by Gore and granted by the Florida Supreme Court) and replace it with another (the machine recount from 3 days after the election, plus some initially rejected military postal votes that were probably-legally cured). This was ugly, but it wasn't "stealing an election" because there was no effective election to steal. The election held on polling day had failed to reach a result and given the timetable the Presidency was necessarily going to be decided otherwise than by an election.

If Florida 2000 had been a close Senate election, it could have been re-run. (As a famous UK example, the Parliamentary election in Winchester in 1997 was re-run because the final tally after multiple recounts was a margin of 2 votes out of about 60,000, and there was a margin of error of about 10 votes due to a faulty punch used to stamp ballot papers). But you can't do that in a Presidential election.

There was a similar problem in 2020. Some of the allegations Trump made were straightforwardly silly (like the Dominion voting machines conspiracy theory), and some could be debunked relatively quickly (like the suitcases of ballots in Fulton County, which turned out to have been storage boxes of correctly-handled ballots which had been on CCTV throughout the process), but some (like the "pristine ballots" which came up elsewhere in this thread) could not have been adjudicated to the standards required to convince sceptics in the time available. An honest attempt to adjudicate the 2020 election in State courts in the time available would have required the Trump campaign to focus on a small number of key issues with the best evidence of malpractice and sufficiently high numbers of votes involved to affect the outcome, the Secretaries of State to provide detailed responses on those points, a trial courts to review the results quickly, and an appeals court to slap down any time-wasting and just tell the parties to get on with it. But the Trump campaign didn't want that and it doesn't look like anyone else, with the possible exception of Raffensberger, did either. If Sidney Powell had been trying to get the Kraken lawsuits tossed on technicalities in order to set up a political argument, she could hardly have done better. And if Trump had trying to get his prima facie serious allegations of fraud lost in the middle of a Gish Gallop of crap, he definitely couldn't have done better than he did. And even if that serious, disciplined adjudication had happened (for the avoidance of doubt, it should have done, and didn't), there would still have been thousands of right-wing "citizen journalists" complaining that their pet allegation had not been adjudicated, as long as they had a ready audience.

One of the straightforwardly good things the revised Election Count Act post-2020 does is that it extends the deadlines for States to adjudicate their own elections by removing the schedule padding originally needed for messages to get between the State Capitols and Congress on horseback.

But the Trump campaign didn't want that

Thinking about this, I think I am ready to bite this bullet.

On the balance of the publicly-available evidence, the Trump team in the aftermath of the 2020 election was not trying to get the election adjudicated in their favour - unsurprisingly, because after PA turned out to be beyond the plausible margin of fraud, getting the election adjudicated in their favour required them to flip all three of GA, AZ and WI, which was a very long shot. The tactics the Trump team were using were designed to throw enough shade on the integrity of the election that some other pro-Trump actor in the system (State legislatures in purple states with gerrymandered Republican majorities, the Republican majority on SCOTUS, Mike Pence, a pro-coup faction in the military, or an armed mob of conservative citizens) would toss out the election results and "who is inaugurated on 20th January 2021" would be decided otherwise than by an election.