What Makes an Election “Free and Fair”

In response to Donald Trump’s claims about the 2020 presidential election, liberal people have united around the claim that the election was “free and fair.” The claim is that Trump’s assertions about widespread voter fraud are false. A consequence of the GOP’s rejection of democratic values is January 6th.

To people on the right, these liberal claims reek of hypocrisy. What about the protests in the wake of the 2016 election? #notmypresident is not altogether different from sentiments that informed January 6, even if they manifested in different actions. Plus, in both the 2016 and 2020 elections, Democrats were constantly complaining about unfairness, from Russian meddling and “collusion” to voter suppression and the Electoral College.

Everyone is claiming unfairness. Who is right? Who is a hypocrite? Does it matter? 

Examining these questions shows that Democrats are currently providing material for Republicans to make a powerful hypocrisy accusation in the future. Democrats’ insistence on the legitimacy of the 2020 elections will be weaponized to discredit Democrat’s arguments, which may be valid and accurate, that the 2024 election was illegitimate.

Two Ideas of Fairness

The claim that an election was “free and fair” can have two meanings. First, there is the idea that election laws, whatever they happen to be, were followed. Trump’s complaints seem to focus on what might be called process fairness. He insists that people aligned with Democrats broke a series of laws, thereby making the results illegitimate. Democrats respond by pointing out there is no evidence for Trump’s claims. If the legitimacy of the 2020 election is a matter of whether election laws were followed (except for some marginal cases), then the election was legitimate.

The second idea is about the election laws themselves— what might be called system fairness. Another way to claim illegitimacy is to say that, although the laws may have been followed, the laws are unfair, thereby making the election illegitimate. Criticisms of the Electoral College fall into this category. Another example is the 2000 Supreme Court decision that gave the victory to George W. Bush. Democratic complaints are not about a breakdown in the workings of the electoral system but about the fairness of the system itself. 

Distinguishing these two ideas reveals that Democrats make separate claims about the two types of fairness. Biden won the election according to the election laws as they exist. But those laws, in many important respects, remain unfair. Due to the Electoral College, although Trump lost the popular vote by 7 million, he was 82,000 votes away from winning. There was technically legal voter suppression. A Senate majority that represents a minority of Americans confirmed Supreme Court justices whose decisions on election cases reliably benefit the GOP. A President who lost the popular vote nominated 4 of those justices. More broadly, based on fundamental democratic principles, more people should be allowed to vote and given time to do so. In short, Democrats claim that elections are unfair even when they win.

So who is right to claim unfairness? First, insofar as Trump thinks election laws were meaningfully broken, he is wrong. There was no process unfairness. Second, insofar as Democrats think the electoral system is unfair, there are many reasons to think they are right. 

Another conclusion is that the sentiments behind #notmypresident and January 6th are different in kind. The former, by acknowledging that the rules of the system were followed, is factually accurate and makes a political argument based on fundamental principles about the importance of democracy. The process worked as designed but the process should be different. The latter is factually inaccurate and antidemocratic.

The 2024 Hypothetical

Republican charges of hypocrisy are premised on conflating the two types of fairness. It seems inconsistent to claim unfairness at one level and fairness at another. This matters because the conflation has generated an alarming political agenda. The agenda, in addition to helping Republican electoral chances, undermines Democrats’ ability to object to unfairness that the agenda is aimed at establishing.

The GOP is unifying around explicitly antidemocratic policies and priorities. Factually inaccurate claims about process unfairness are now motivating changes to the electoral system itself. ‘Election integrity’ is the euphemistic watchword. The mind-bending thought is that the system should become more unfair to prevent the process unfairness that did not actually occur. Now elections boards are becoming partisan; the GOP is recruiting an army of partisan poll workers and lawyers; governors and secretaries of state are running on pro-Trump, antidemocratic messages; and legislators are considering the viability of ignoring their state’s popular vote. The GOP also strongly opposes any voter rights reform that the Democrats might propose. 

Now, what if the GOP agenda is successful? What if they make antidemocratic policy advances ahead of the 2024 election? What if enough states refuse to certify electors and the result of the election changes? What if this is not a constitutional crisis but the outcome of established electoral, legislative, and judicial mechanisms? 

Democrats will exclaim unfairness! Vociferously and passionately. Then the four-year GOP preoccupation with the 2020 election results can be deployed in the mother of all hypocrisy accusations: Democrats spent years smugly dismissing Republican concerns about election integrity and demanding that everyone accept the results with civility. They decried January 6th as treason. They said suspicion of the 2020 results was open armed acceptance of authoritarianism. And now, Republicans would say, every principle has been abandoned, all for the sake of partisanship. Trump derangement syndrome strikes again.

The seeds for the accusation were planted years ago. In 2016, the GOP witnessed the Democratic claims of unfairness. In 2020, the GOP deployed a version of the same claim. This was clever because, by glossing over different types of unfairness, it set up the appearance of hypocrisy. But the 2024 strategy goes further. 

In a democratic society, as long as there is process fairness, the result is, in some meaningful sense, legitimate by definition. Democrats are relying on this claim about process fairness when they denounce Republican complaints about the 2020 election. It is the sentiment behind the dictum “elections have consequences.” Now, when Republicans use standard process methods to alter the electoral system, Democrats cannot claim process unfairness. Democrats are in a rhetorical dead-end. If they say that the 2024 election is “stolen,” their claim is ambiguous. Either it will be about systems, in which case it repeats the complaints about 2000 and 2016. The matter, at bottom, is now about partisan political values, and Democrats should have cared more about the judiciary or local and state elections. Or the claim is about process unfairness, in which case it is likely wrong and a repeat of Republican claims about 2020—the claims Democrats have spent years denouncing as dangerous. Then they are hypocrites. 

The problem is that nothing can single out 2024 as the unique threat to democratic order that it is. Disputes about, on the one hand, abstract principles, like the value and meaning of democracy, and bare partisan advantage, on the other, are becoming one and the same: the system becomes a topic of mere partisanship. If democracy becomes partisan, Democrats are reduced to the claim that since the system didn’t give them what they want, the system must be bad. It is the same claim that Republicans are making and using to threaten democracy. The GOP turn against democracy eliminates any shared values that would make the quest for system fairness a shared American project. 

Everything is reduced to partisan gain. Everything is fodder for hypocrisy accusations. All other projects are illegible.

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