Steven Calabresi has joined the ranks of 2020 election fraud truthers but with some nuance. Writing in Reason, Calabresi rejects arguments that the 2020 election involved voting machine or tabulation fraud or error, but still sees Biden’s victory as illegitimate. His argument is a bit hard to follow but it comes down to three complaints. The first is that no-excuse absentee vote-by-mail was widely adopted to deal with the danger of the COVID-19 pandemic, and this led in some cases to the loss of the secret ballot, as canvassers went into people’s homes and watched them choose their candidates. Relatedly, many of these votes were “harvested” and dropped off en masse in public drop boxes. And, finally, that the extended period of early voting meant that people did not necessarily “vote on the same day, after the same news cycle, with the same information before them.” He also complains about mail-in votes being counted after Election Day, not for any particular reason except that it makes people suspicious. Here’s his thesis, in a nutshell:

I do not myself believe that there was fraud in the counting of ballots or voting machine malfunctions. I do believe, however, that the unprecedented use of mail in voting over a period of many weeks, with the loss of the secret ballot, and drop boxes, produced a fundamentally illegitimate Biden victory in 2020 in Pennsylvania and elsewhere. I simply do not believe that in an honestly held traditionally run presidential election that Joe Biden would get 181,866 more votes for President in 2020 in Pennsylvania than Barack Obama got in 2008.

As a result, many Republicans, myself included, thought that the 2020 presidential election was probably stolen, even though that fact could not be proved in a court of law. President Trump himself did not claim right after the election that mail in voting and the loss of the secret ballot had altered the vote count in the 2020 election. He waited for two weeks and asked for hopeless recounts instead.

Before I get started responding to this, I want to refer Calabresi to three articles I wrote during the 2020 campaign:

May 20, 2020: Trump Is An Idiot to Oppose Vote-By-Mail

June 15, 2020: Trump’s Campaign Against Vote-By-Mail is Killing Him

June 24, 2020: Trump Has Destroyed the GOP’s Vote-By-Mail Advantage in Florida

The headlines alone show that it’s simply not true that Trump didn’t complain that expanded vote-by-mail was an attempt by the Democrats to steal the 2020 election. In fact, his insistence on this point was so pronounced that as early as May I was arguing that it was going to be something of a self-fulfilling prophesy. In my first piece, I noted that Trump stood to gain by vote-by-mail because he had an advantage with people over 65 years of age who were the most likely to fear voting in person due to the risk of COVID-19.

In the second piece, I looked at how Republicans had banked an early advantage with mail-in votes in Florida during the 2016 election, which partially offset Hillary Clinton’s larger advantage with in-person early voting. I noted that Trump’s railing against mail-in votes had just showed up in a big way in the Michigan primaries where “1.3 million Democrats had requested mail ballots compared to only 524,000 Republicans {and] about 400,000 more votes were cast by Democrats than Republicans.” In other words, Trump had succeeded in creating a big advantage for Democrats with mail-in votes, but one that had not previously existed. It shouldn’t need mentioning, but it’s not just the raw early votes that matter. When one party banks more votes before Election Day, they can shift their focus to a smaller universe of supporters who still haven’t cast a ballot. By dissuading Republicans from using mail-in votes during a pandemic, Trump was hurting himself in more than one way.

In the third piece, I returned to Florida to note that “the Democrats have opened up a 302,000-voter advantage over Republicans in vote-by-mail enrollment,” which was a completely different situation from what happened in 2016 when the Republicans banked a roughly 30,000 advantage with voters choosing the mail option. I reiterated that Trump’s “fear mongering about the [vote-by-mail] practice was like a mental contagion that is ripping through conservative circles and Trump shouldn’t think his numbers won’t suffer in Florida to some degree, as well as in every state where mail is an option.”

I mention these pieces I wrote to demonstrate that it was completely foreseeable that Trump was creating a problem for himself by making his own supporters wary of trusting mail ballots. It meant that the Democrats wound up banking many more early votes. This prevented the Dems from losing votes in Election Day due to illness, competing work responsibilities, car mishaps, or other accidents. And it made it easier for the Dems’ turnout operation because they had fewer outstanding voters to cajole to the polls.

When you think about it this way, it’s fair to say that in a “traditionally run presidential election” (meaning one with a traditional level of mail-in voting) that Biden would not have won by as much as he did in 2020. But this not because of drop boxes or the loss of the secret ballot. It was entirely because Trump made Republicans distrustful of using the mail-in method, and thereby gave the Democrats an advantage they could not have gained on their own.

It’s true that the rules changed in 2020, but they change modestly in every presidential election cycle as states adjust their election laws. The courts rejected challenges to expanded early voting and vote-by-mail during the pandemic, so these changes weren’t illegal. And if they wound up favoring Biden, possibly even accounting for his victory, it was Trump himself who was most responsible for that outcome.

And everyone saw it coming. That’s what the early red wave predictions were about, where it was expected that Trump would initially look like the winner due to most states counting Election Day votes prior to counting mail-in votes which only needed to be postmarked by Election Day to count. It was as clear as day that more Democrats than Republicans had requested and cast mail ballots, and also why that was the case.

As for concerns about the secret ballot, this is overblown. Anyone who wanted to maintain the secrecy of their ballot had the option of filling out their mail-in or absentee ballot outside of searching eyes. And the drop boxes were merely receptacles for ballots, not some magic way of stuffing the ballot box.

You can make an argument that Trump blew a winnable election by demonizing mail-in votes. I certainly argued he was injuring his chances. What you can’t do is say that the election was stolen.


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