There are various philosophical theories about the legitimate basis of political authority. The United States has largely adopted a Lockean style approach developed during the Enlightenment. The gist of this theory is that political authority rests on the consent of the governed. As a practical matter, voting seems to be the best method of determining this consent (or lack thereof). As Locke argued, there should be majority rule—although this is not without problems.
If we accept voting as the means of determining consent, then a legitimate election would require meeting two main goals. The first is that every citizen must have the opportunity to cast their one vote without any difficulty and have confidence that each vote will count. If voters are suppressed or votes are not properly counted, then the legitimacy of the election is reduced because the consent of the voters will remain undetermined.
The second is that the election is secure. This involves preventing non-citizens from voting, preventing citizens from casting multiple ballots, preventing changes to the results, and so on. To the degree that an election is not secure, its legitimacy can be justly questioned. Since I accept that the moral legitimacy of authority rests (in part) on the consent of the governed, I support effective and ethical efforts to meet these two goals. I oppose efforts to interfere with these goals—especially when lies about efforts to meet the second goal are used to interfere with the first goal. This leads to the critical question of whether the 2020 presidential election will be morally legitimate under these standards.
After winning the 2016 election, Trump lied about massive voter fraud. In the lead up to the 2020 election, Trump has engaged in a torrent of lies about voter fraud. Attorney General Barr has echoed Trumps claims, repeatedly lying about voter fraud. While voter fraud does occur, it is extremely rare and states are quite good at combating it.
If you believe Trump about voter fraud, here are two things to consider. First, voter fraud would be an extremely ineffective way to steal an election and it comes with severe penalties. To use an analogy, trying to use individual voter fraud to steal an election would be like deciding to get rich by robbing the lemonade stands of children at gunpoint: the pay off is tiny and the consequences would be severe. Second, if you trust the actual news arm of Fox News, look at their actual news reporting (not the opinions) to see if there are well documented cases of widespread voter fraud. You will not find such stories in their actual news, because these stories are not true.
These claims about voter fraud seem to have two goals. The first is to create doubt in the ignorant and the second is to arm the wicked with talking points. If the election is close or if Trump uses, he has already laid the foundation for the narrative that the election was not legitimate—based on no evidence for his claims of widespread fraud. Trump has also refused to agree to a peaceful transition of power. The efforts to undermine voter confidence and his refusal to agree to a peaceful transition of power undermine his own legitimacy and a case can be made that such attacks on democracy should morally disqualify him for office. He also threatens the legitimacy of the election with his lies: if people wrongly reject the results because of his lies, he will have undermined the consent of the governed.
While Trump has been lying about voter fraud, he is right that the election has already been compromised. This is because he and the Republican party have been actively suppressing voters. They have been waging legal battles to limit ballot boxes. They have also adopted a strategy of reducing polling sites and hours. There are concerns that Trump is encouraging his supporters to engage in voter intimidation. Ben Ginsburg, a prominent Republican election lawyer, has presented a solid case showing that Trump and his legal team have engaged in a systematic effort to disenfranchise voters using the myth of voter fraud. Trump has gone so far as to claim that Republicans would never be elected again if it were easier to vote, and Ginsburg has laid out how Trump’s team is trying to make it hard for people to vote. This voter suppression undercuts the legitimacy of the election by denying citizens the chance to consent.
My adopted state of Florida provides an excellent example of Republican efforts to disenfranchise voters. In this example, the focus is on felons whose right to vote was restored by a popular constitutional amendment. Felony disenfranchisement, as one would expect, has a clear historical connection to racism. While it does harm white votes, they are by-catch or collateral damage—it is aimed at disenfranchising minorities. It has a significant impact nationwide, prevent an estimated 5.2 million Americans from voting. My (very white) home state of Maine allows felons to vote in prison while many states impose permanent disenfranchisement—an endless punishment.
When some people hear about restoring felons’ voting rights, they express rage that “rapists and murders” will be able to vote. The first obvious reply is that Florida’s amendment does not do this. The second obvious reply is that the overwhelming majority of felons have not committed murder or sexual crimes. There are some very minor crimes that count as felonies. For example, in my adopted state of Florida stealing $300 is a felony—so a 18 year old who shoplifted a game console would have lost his right to vote. While “murders and rapists should not vote!” is a nifty slogan, “a teenager who steals an Xbox should never ever be allowed to vote!” is less obviously appealing. But back to Florida.
While the amendment easily won the popular vote, the Republican dominated legislature immediately went into action to gut it. That is, they went against the consent of the governed in order to ensure that citizens remained disenfranchised—thus robbing them of the right to vote that their fellow citizens insisted they should have. This wicked action by the Republican dominate legislature reduces the legitimacy of the election by interfering with the first goal; that every citizen has the opportunity to consent.
Trump and his team have explored various ways in which they can use the legal system to “win” the election even if Trump loses. The electoral college provides numerous ways for this to occur. One bold strategy Trump’s team has been openly considering is ignoring losing election results in states that have Republican controlled state legislatures. These legislatures can, constitutionally, appoint their own electors to cast their electoral votes for Trump. So, for example, Biden could decisively win Florida and the state legislature could give him the state’s electoral votes. When this is disputed, it would go to the Supreme Court where it would presumably be settled 6-3 in Trump’s favor. Brett Kavanaugh has already made it utterly clear that he is on Trump’s side. This would all be legal—but would utterly destroy the moral legitimacy of the election.
In terms of my conclusion, this is best presented as an analogy. At this point, Trump is like an athlete who has laid all the groundwork to massively cheat in the upcoming big game. He has rigged the playing field, he has appointed his own referees, he has deflated the footballs, and so on. If that athlete wins the game, you can never be sure if it were because he would have won anyway or just because of the cheating. But his victory certainly cannot be considered legitimate—the very act of his cheating destroyed any possibility of legitimacy. By analogy, if Trump “wins” the election, he cannot be considered the legitimate president—his cheating and lies have destroyed all pretense to legitimacy. Even if he would have otherwise won. But what about Joe?
There is no evidence that Biden is cheating. Cynics will note what Trump also recognizes: the more people who vote, the less likely it is that Trump will win. As such, Biden has no reason to cheat—he can easily win by playing fair and would only hurt his chances by engaging in election shenanigans. To go back to the sports analogy, Biden winning would be like a sports team beating the cheating team despite all their cheating. In that case, you can be even more confident in their victory. For example, if an honest biker had someone beat Lance Armstrong when he was cheating, we could be utterly confident in that biker’s victory—he would have crushed Armstrong even more had Armstrong not cheated.
Trump’s cheating has thus put him into a bad situation. If he wins, it is utterly reasonable to believe it is due to his cheating. That is, Trump cannot win a legitimate victory anymore than an openly cheating sports team can win a legitimate victory. Biden, by not cheating, is the only legitimate winner: morally he is like the sports team that is playing honestly—they win by default.
As such, Donald Trump himself has seen to it that he cannot be legitimately elected president. Legally, of course, he can. But he has no moral standing and if he “wins” he must be regarded as morally illegitimate ruler, a mere tyrant pretending to the office.