As a journalist of my acquaintance joked on Twitter this week, I’m so old that I remember when it was dangerous and unpatriotic to question the validity of election results. Ah, yes. Those halcyon days, back when Hillary Clinton said that to not accept the results of an election was “a direct threat to our democracy.” In the modern political era, that’s a lifetime ago. Six weeks ago.
In the course of that lifetime, Clinton lost an election she had been widely expected to win. And then last weekend, The Washington Post broke the news that a secret CIA assessment had concluded that “Russia intervened in the 2016 election to help Donald Trump win the presidency, rather than just to undermine confidence in the U.S. electoral system, according to officials briefed on the matter.”
These conclusions seem to be somewhat contested within the intelligence community, but that didn’t stop social media from lighting up with calls for the Electoral College to overturn the results of the election. Most of this was probably the sort of idle chatter that used to fill barrooms instead of newsfeeds after elections, but I saw some sober, serious people I respect arguing that this completely delegitimized Trump’s presidency, and at least one person say Trump hadn’t really won. Now John Podesta, former chairman of the Clinton campaign, has joined electors urging that the Electoral College be given an intelligence briefing before they vote.
Democrats were right the first time. It is dangerous and unpatriotic to suggest that you won’t abide by the results of an election, either by lobbying to overturn the vote through some procedural trick, or by declaring that the victor has no real right to execute the functions of the office.
I’m no fan of Trump, so it’s not self-interest when I say he should receive the Electoral College’s support and become president.
And I’m troubled by the allegations that Russia is working to destabilize or sway U.S. elections, so it’s not that I see these latest allegations as no big deal. They’re a big deal. But they don’t undermine the outcome of the election.
If it became known, for example, that Russia had tampered with the voting machines so as to make them record phantom votes for Trump, I would support throwing out the results and calling another election. If the intelligence community had hard evidence that the Trump campaign had conspired with Russia to hack the Democratic National Committee, then I would be the first to call for indictments of those involved — or for impeachment and removal of the president-elect, if he knew.
But that’s not what is being alleged, as far as I can tell. What is alleged is that Russia hacked the DNC and released information intended to make Clinton look bad. That’s a criminal act, and we should prosecute anyone we can get onto U.S. soil. On the other hand, it’s poor grounds for invalidating an election. “The American voter had too much information about the Democrats” is not a ringing slogan with which to argue that their party should really have won.
Short of invalidating the election outcome, what can be done? I share the horror at the thought of Russian meddling, and I too would like something to be done. But it’s rarely constructive policy to set out to just do “something” in reaction to a horrifying event; you have to do a specific thing, ideally with good reasoning behind that specific thing. And you need to take care that that specific thing does not create problems even worse than the one it was meant to address.
For example, at a panel last week, I was asked what we should do about fake news. Much of the audience was unhappy with my answer: “Nothing.” I’m not too happy with it either. But this sort of news is often hosted outside the U.S., and it propagates through multiple channels — websites, e-mail, social media. Imagine the government apparatus you’d have to create, and the powers you’d have to give it, to prohibit people from sharing links to those websites with one another. Then imagine what could be done with those sorts of powers. By someone like Trump. Better to do nothing about the problem of fake news than to create an even worse problem.
So it is with this election result. There’s good reason that we’ve never let faithless electors nullify an election. The democratic nation-state is not a natural institution. It takes a lot of work, and a fair amount of magical thinking, to get 300 million people to the point where (most of the time) they will abide by sweeping decisions made by far-away people they’ve never personally met.
The value of this is rarely much appreciated by the losing side, but it is the same emotional logic that guides the legal doctrine of stare decisis, which is to say that stuff that already got decided stays decided, even if the decision wasn’t necessarily very good. Sometimes we get stuck with some real stinkers of election results and judicial decisions. But the alternative is even worse: a nation in which no one can ever plan or move forward, because nothing is ever final.
While a mutable past may seem splendid at the moment when your opposition controls the immediate future based on that decision, wise citizens know that not long from now, there will come a moment when your party gets to run the future for a while — and if you won’t accept the results of the elections you lose, then your opponents won’t either. When a country reaches this state, things get pretty bleak, pretty fast.
Our sacred norm has already been tested in recent years, from the left-wingers who called Bush the “President Select” to the conservatives who said that Obama was “not my president.” But this is minor grumbling compared to what you’d see if the Electoral College went into a secret intelligence briefing and came out with a president other than the one who won the vote.
If the intelligence community has serious evidence that election machines were tampered with, or that the Trump campaign actively conspired with Russia to commit a felony, than that information should certainly be given to the Electoral College. But it should also be given to the rest of the American public, so that we can debate whether these circumstances rise to the extraordinary level required to invalidate an election, either through the Electoral College or through impeachment.
However, if all they have is information that was widely available to the American public before the election — that someone, probably Russia, hacked the DNC and released stolen e-mails — combined with the speculation that Russia really, really wanted Trump to be president, then the electors should stick with Trump. And Democrats should say “He is my president” — even if they have to say it through gritted teeth.
American voters had their chance to disagree with Russia, and didn’t take it. Maybe the deciding votes in Wisconsin, Michigan and Pennsylvania were swayed by those DNC e-mails. Maybe not. Regardless, their vote is sacred. And if we don’t keep it that way, then the gates of political hell yawn wide indeed.
This appeared in the Idaho Statesman:
To procrastinate is human, but to really lose track of progress and what is right requires a concerted and warped federal government hell-bent on deferring to the politics of gridlock in lieu of justice.
There is an unfortunate example of this right now amid the circumstances swirling around the fate of Pocatello’s David C. Nye, whom President Barack Obama nominated back in April to a federal judgeship in the District of Idaho.
Within days of that nomination our two Republican Senators, Mike Crapo and Jim Risch, chimed in and agreed with their Democratic president that Nye — now serving in the Sixth District Court of Idaho — was an excellent choice and ought to be approved by the Senate.
Crapo and Risch introduced Nye to the Senate Judiciary Committee back in June, and that body approved him on July 14 without dissent. Everybody, including us, is supportive of Nye, but nobody has been able to push him over the finish line and put him to work for Idaho — who desperately needs him.
Idaho only has two such judgeships (and has a great argument for a third), and the man occupying one of them, Judge Edward Lodge, announced his pending retirement two years ago. He went on senior status in 2015 and he just turned 83. He is doing his best to perform his duty — and waiting for the U.S. Senate to do its duty.
August came, the campaigns for the federal elections came and went, and so did the start of the so-called lame-duck session of Congress following the Nov. 8 election. Nye, and many other judges awaiting confirmation by the Senate, languish in the kind of limbo that only gridlock can create.
Carl Tobias, an ardent observer of the Senate and federal judges who is also a law professor at the University of Richmond, aptly framed the judicial crisis that Idaho and other states face because the Senate has failed to do its job. In an opinion piece Tobias wrote last month about the situation in Idaho he stated: “The District currently has one vacancy in two active judgeships. This means that the court lacks 50 percent of its active judicial complement, which frustrates efforts to promptly, inexpensively and fairly resolve disputes. Because criminal prosecutions receive precedence under the Speedy Trial Act, litigants participating in civil suits experience difficulty securing trial dates and concluding their litigation. . . ”Senate leadership has been signaling for days that its lame-duck agenda has only one more item before adjournment until the 115th Congress convenes in January — the passage of a funding continuing resolution, which, as of this writing, the chamber was considering Friday.
Why not take 10 minutes to confirm Nye and others for the federal bench and allow them to get to work? Among the theories is that Senate Republican leadership and the rest of the world would be reminded of the GOP’s obstinance to not even consider Obama’s nominee to the U.S. Supreme Court, Merrick Garland.
We are unconcerned about face-saving — and only hoping for justice, which will have to wait.
If 2016 ends without Nye’s confirmation, we’ll all have to pray that President-elect Donald Trump will re-nominate him in 2017 and he can come on board with Senate confirmation. It sounds so simple, doesn’t it? — unless, of course, some new distraction allows Nye’s fate to once again slip into the abyss of Senate neglect.
What are the chances of that?
Hacking has been going on since the internet started. Hacking has always been defined as the ability of someone to read or steal your data whether it be email or social security numbers or private information without your knowledge or permission. Hacking has never been about changing any of this data, just using it for whatever reason. Viruses, which are little programs that can download into your computer when you are surfing the internet, can change your data.
What is the media’s definition of hacking? Now they say the voting computers were hacked. A bunch of Democrat-controlled agencies say they were hacked but can’t say how they know because it’s a secret. The only way to know is if something appears in news. Where did the hacked voting machine numbers appear? Were they in the newspaper? So, how could anyone in the world change or affect an election by hacking?
Trump seems to tweet a lot and not use email. Clinton uses email. It was the content of her emails that were leaked that Hillary and the Democrats didn’t want anyone to know. They weren’t about somebody having a baby or a birthday party. They were damaging to the Democratic Party. Was anyone prosecuted because of them? Everyone using the internet to communicate knows that the internet does not guarantee privacy, and yet they can’t put down their phones. Today, talking has become a lost art.