The Law of Bad Numbers
By: Michael Austin
Tags: Elections, Biden, Trump, Politics, Pennsylvania

Politics, Elections 2020

Here, in a nutshell, is the Law of Bad Numbers: In an election involving millions of votes, it will always be possible to find reasons to dispute results that you don’t want to accept, and none of them will affect the final tally.

Think about the enormity of the task. In a typical American national election, more than a hundred million people will vote in thousands of different places. Some people will vote on election day. Some will vote early. Some will vote by mail-in ways that require the cooperation of a postal system. Others will fill out provisional ballots because something has made them ineligible to fill out a regular ballot. And all of these votes are supposed to be tabulated in a few hours after the polls close so the networks can project a winner by the time we go to bed on election night.

This is impossible, of course. There is no way to count every single ballot in the time allotted. But it usually doesn’t matter that much because there is plenty of room for error. If a candidate appears to have won a state by three million votes on a first pass, then people aren’t that worried about five hundred provisional ballots here or there that may or may not get counted. They just aren’t that important to the final result.

So, the tradition has been, states give a rough estimate to the networks on election night and then take a week or two to count every single vote, producing a certified tally some time in November or December, depending on state law. The certified vote total is never exactly the same as the election night projection. But it is usually close enough. Statewide totals in national elections are never so close that a handful of votes in any direction matter very much.

Except when they are. In 2000, Americans learned how inadequately prepared we were for a REALLY close vote. When the entire election came down to a few hundred votes in a single state, the nation discovered that there are all kinds of irregularities and judgment calls that impact a small percent of ballots. This has always been the case, but we only see it when the count is close.

When it is not particularly close, losing candidates usually don’t challenge every ballot, recount every state, and relentlessly pursue every possible error or miscount. They certainly could, and they would always find something to complain about. That’s how the Law of Bad Numbers works. But so would their opponent, since these small errors always run in both directions. It would not even be difficult to spend four years after every election challenging and litigating minor irregularities in different state votes. We don’t do that, though, because it would make it impossible to have a government. This is one of the norms that allow us to have a functioning democracy in an imperfect world.

For months, Donald Trump has been telegraphing his intention to ignore this democratic norm the way that he has ignored every other more and standard that has held our nation together for 240 years. He made it crystal clear that he would not accept any vote count that did not have him as the winner. So nobody can be very surprised that the President is taking advantage of the Law of Bad Numbers to contest every state that he lost in which the tally was close enough for the law to apply.

We should be surprised, however, by how weak and inconsequential his challenges actually are. On Twitter, Mr. Trump is boldly declaring that there was a sweeping conspiracy to deprive him of the presidency. In court, he is making tepid and entirely unsupported claims that, even if granted, would not affect the results of the vote. Consider what has been filed so far, according to a New York Times report on Friday:

Before the election, Trump’s campaign argued in the Supreme Court that ballots in Pennsylvania that arrived up to three days after Election Day should not be counted. The Court declined to make the ruling so close to the election but indicated that it might revisit the case later, so the Pennsylvania Secretary of State ordered that these ballots should be counted separately. The day after the election, Trump’s attorney asked the Court to order that the ballots be counted separately. These ballots are not included in the current Pennsylvania vote total that was used to call the election for Biden.

Also in Pennsylvania: 120 election observers — 60 Republicans and 60 Democrats — were permitted to watch the count, with a required ten-foot distance as required by state COVID-19 protocols. The Trump campaign requested that the distance be changed to six feet, and a judge granted the request. Without evidence, the campaign has insisted that the six-foot distance was not allowed and demanded that the count be stopped. The count is also being live-streamed on the Internet, and no specific allegation has been made about ballot handling in which the difference between six and ten feet would be significant.

Other Trump complaints in Pennsylvania alleges that rejected ballots in Montgomery County were improperly allowed to be “cured,” or corrected, before counting and that the deadline for providing additional information for first-time voters voting by mail was improperly extended in some districts.

In Nevada, Republicans argued that a signature-matching system used in Clark County violated the Equal Protection Clause of the 14th Amendment because it was not applied elsewhere in the state — an argument that there was TOO MUCH ballot security in a Democratic stronghold compared to the laxer rules in Republican districts.

A single Trump supporter sued in Arizona alleging that her ballot was not counted because it was filled out with a Sharpie. The lawsuit alleges that many other ballots suffered the same fate. No evidence was found to support either claim, and the Arizona Attorney General issued a statement that no ballots were rejected on account of Sharpies.

In Georgia, the Trump campaign sued to prevent 53 late-arriving ballots from being counted. The court found no evidence that these 53 ballots did, in fact, arrive late.

Now, let’s be really clear here. Not a single one of these claims, even if completely accepted, would change the outcome in a single state. The most that any of them would do is force a recount. But recounts are going to happen anyway, and, even if they are not automatic, the campaign can request and pay for a recount in nearly every case the tally is close. The remedies that Trump is requesting from the courts are already available to him.

And the kinds of irregularities that these claims point to are the sorts of irregularities that will always be found, by either side, when a small number of people are trying to count a hundred million of anything in a single evening — or even a single week. There is nothing — absolutely nothing — in these claims to suggest that our system is broken, or that there is a conspiracy to defraud Trump, or that there was any intentional voter fraud at all in this election.

The paucity of Trump’s actual claims of wrongdoing stands in sharp contrast to the ferocity of his tweets about election fraud. It is not just that these lawsuits have virtually no chance of succeeding; every one of them could be completely successful in the courts, and it would not change the tally in a single state. The claims are not merely baseless. They are both baseless and inconsequential. It is frankly embarrassing that the President of the United States and his highly paid legal team had six months to manufacture a conspiracy, and this is the best that they can do.

The “stolen election” narrative is an exact analog to the “Obama-was-born-in-Kenya” narrative that Trump championed during the term of his predecessor — a wholly made-up story meant to motivate dissent by delegitimizing a president. If the current narrative had actually been designed to convince judges and election boards, it would have contained at least a few testable claims of things that would affect the final tally. But the narrative is not designed to prevent Joe Biden from becoming President. The point is to make it difficult for the next president to govern, and impossible for the nation to heal.