Only good faith, judgment of candidates and election officials protects vote counts

Counting votes in presidential elections can’t be done with precision.

First, getting millions of people to vote on the same question will always involve some amount of human error and fraudulent misconduct. Presidential elections are too large and complex to be perfect. Second, election laws will always require line-drawing that advantages one side or the other. That’s inherent in rules governing any dynamic, zero-sum system. And third, courts will always have to resolve election disputes. Not every issue can be foreseen and addressed before the votes are cast.

These are facts. They’ve always been true. And they’re not going to change.

There have, moreover, been fundamental electoral deficiencies throughout American history. For example, George W. Bush beat Al Gore in 2000 by a few votes in Florida based on a highly controversial opinion from conservative Supreme Court justices.

So what, then, has kept American democracy moving forward despite its myriad election problems? The good faith and sound judgment of candidates and election officials.

Despite being well aware of elections’ inherent imperfections, these key participants have sustained public confidence in the franchise. State officials have largely done exemplary work counting votes. And candidates on the losing side of close elections have recognized that conceding defeat is part of the fuel that keeps the engine of democracy moving forward.

Indeed, is there any doubt that Al Gore genuinely thought he won the 2000 presidential election? No. The former vice president nonetheless conceded defeat after the Supreme Court spoke — not as an endorsement of the Court’s decision but as part of his obligation to American democracy. “Let there be no doubt, while I strongly disagree with the court’s decision, I accept it,” Gore said in his concession speech. “I accept the finality of this outcome which will be ratified next Monday in the Electoral College. And tonight, for the sake of our unity as a people and the strength of our democracy, I offer my concession.”

That’s how it has always worked: Losing candidates have conceded—for the sake of American democracy — even if they strongly believed they actually won.

Until now.

Now, Donald Trump is the loser. And he possesses neither good faith nor sound judgment.

Trump is continuing on with the “Big Lie,” the delusion that he (not Joe Biden) was the real winner of the 2020 presidential election. He is asserting one false allegation after another. In an Oct. 27 letter to the editors of the Wall Street Journal, for example, Trump made the following baseless claims (among many others) about the election in Pennsylvania:

• “305,874 voters were removed from the rolls after the election on Nov. 3rd.”
• There were “57,000 duplicate registrations.”
• There were “39,911 people who were added to voter rolls while under 17 years of age.”
• “17,000 mail-in ballots [were] sent to addresses outside of Pennsylvania.”

The Wall Street Journal’s editors appropriately called these claims “bananas.”

Yet the Republican Party is going along with it. In droves. The leading Republican in the House of Representatives, Kevin McCarthy, is a Trump ally. In a Politico and Morning Consult poll released last week, 60% of Republicans said the 2020 presidential election results should definitely or probably be overturned.

And, worst of all, Trump is positioning pro-Trump ideologues to be in charge of states’ presidential election operations in 2024. As Rick Hasen, co-director of the Fair Elections and Free Speech Center at the University of California, Irvine, told CNN: “It is incredibly dangerous to support people for office who do not accept the legitimacy of the 2020 election. It suggests that they might be willing to bend or break the rules when it comes to running elections and counting votes in the future.”

Trump has identified the most critical election vulnerability of all: the people who count the votes. It has been the good faith and sound judgment of these people — like Georgia Secretary of State Brad Raffensperger, who rejected Trump’s pressure to reverse Georgia’s 2020 election results — that has sustained America’s election integrity and, therefore, its democratic legitimacy.

Trump is maneuvering the pieces to checkmate American democracy. In plain view. He has captured the hearts and minds of tens of millions of Americans. If he also captures the pens of those who tally the votes, an essential pillar of American democracy — free and fair elections — will hang in the balance.

William Cooper is an attorney who has practiced law in Chicago and litigated election disputes.

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