How to Know if the Election Is Actually 'Rigged'

Politico

It is indisputable, or at least it should be, that Russia maliciously attempted to influence public opinion in 2016, both through an insidious social media campaign and, even worse, by hacking into Democratic email accounts and dumping the purloined emails onto Wikileaks.

Whether Russia’s nefarious information campaign changed enough minds to make a difference is debatable. But even if it worked, it would have been the voters who changed their minds because of what they had read or heard. Meanwhile, there is no evidence that Russia tampered with the vote tallies that produced Trump’s victories in the states that won him an Electoral College majority. (Russia penetrated voter registration databases but did not alter voter information or votes.) As a result, there is no justifiable basis for asserting that Trump’s 2016 victory was anything less than fully legitimate. “A lack of votes, not a theft of votes” caused Clinton to lose.

This year, Democrats again might try to blame a Biden defeat, if it happens, on another round of Russian disinformation. Russia indeed is “at it again” — creating fake social media accounts encouraging voters toward Trump and attempting to hack campaign emails. But as long as disinformation operates to influence a voter’s choice, rather than to negate a voter’s choice — that is, prevent a vote from being cast (or erase one so it can’t be counted) — the collective choice of the electorate remains a valid exercise of popular sovereignty. Clinton and other Democrats need to get this straight.

This is not to deny that steps should be taken to counteract the influence of disinformation. Especially if the disinformation comes from abroad, it pollutes public discourse. It is important, in particular, to protect against disinformation designed to cause voters to distrust the electoral process and its capacity to produce accurate outcomes.

Edward B. Foley directs the Election Law program at the Ohio State University’s Moritz College of Law, where he also holds the Ebersold Chair in constitutional law.