As a life-long NY Yankees fan, I’ve been blessed to watch some amazing teams and amazing players compete to bring World Series wins back to the Bronx. One of those amazing players, who was a key part of multiple championships, was Mariano Rivera. He was initially called Mr. Sandman, because he was super-smooth in his delivery. But his motion was belied by the sneaky fastball that would seemingly explode past hitters at 96-98MPH. And when he later developed his cutter, which would break hard at the end causing batters to routinely shatter their bats, he was almost unhittable. Yet imagine if due to fan complaints about the length of the game, and MLB desire to see more runs scored, that for the World Series the rules were changed to not allow pitching changes after the 7th inning. No one should say that the World Series was fraudulent, because the rules were applied equally to all. But if you have by far and away the dominant reliever in the game, there is no way you can call the Yankees loss fair, as the rule changes disproportionately affected the play of one team.

Piers Morgan made some headlines alleging that in his interview with Donald Trump, Mr. Trump stormed out of the interview after being told that 2020 was a free and fair election:

Morgan told Trump the 2020 vote “was a free and fair election. You lost.” “Only a fool would think that,” Trump shot back.  “You think I’m a fool?” Morgan retorted. “I do now, yeah,” Trump responded. 

I’ve strongly criticized Mr. Trump for his post-election meltdown, and his claims that there was widespread election fraud. Fraud has a certain meaning–when I hear fraud I want to see that votes were cast illegally by people who had no right to cast them. Mr. Trump repeatedly took his claims to court, and in each and every time he was rejected, including by many Trump appointees. His claims of fraud were not matched by evidence, at least evidence that would have changed the outcome of the election.

Nevertheless, Republicans know that legal challenges made on behalf of Democratic partisans were designed to help one side in the subsequent election. The challenges suspiciously often only affected areas that were dominated by Democrats, and the basis of many challenges was to call for Democratic wish list items from House Bill 1, which they were unable to move through Congress prior to the 2020 election. In some cases the court rulings in the midst of the pandemic specifically violated what the state legislature had called for, as in Pennsylvania’s extending the mail-in results for days after the election, contra the legal law of the land (which allowed mail in votes only up to 8 p.m. of the election night).

In the three “Blue Wall” states the president won in 2016 — Michigan, Pennsylvania and Wisconsin — judges have recently issued rulings that extend the deadline for mail ballots to be received. In Michigan, a court of claims judge ordered clerks to accept ballots that are postmarked by Nov. 2 and received within 14 days of the election, the deadline for results to be certified. These ballots have to be counted as provisional ballots. In Wisconsin, a U.S. district judge ruled that ballots postmarked by Nov. 3 can be counted as long as they are received by Nov. 9. And in Pennsylvania, not only will mailed ballots that are postmarked on or before 8 p.m. on Election Day and received by 5 p.m. the Friday after it be counted, due to a ruling from the state Supreme Court, but any ballots that arrive within that time frame without a postmark, or with an unreadable postmark, will be presumed to have been sent before the cutoff point, unless evidence indicates otherwise.

For courts to step in and overrule election laws passed by the state legislatures in the matter of elections is certainly, shall we say, inconsistent with the express language of the U.S. constitution:

Article I, Section 4, Clause 1:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

Yet while I disagree with many of the judicial decisions prior to the 2020 election, we have courts precisely to arbitrate contentious issues that otherwise might lead to all sorts of crises. After all, Mr. Trump is only the latest to claim the election was stolen; Al Gore didn’t want to concede, neither did Hillary Clinton or other election losers like Stacey Abrams. Back to my sports analogy–you need to win the game so decisively that one blown call by a referee or umpire is not able to be determinative of the outcome. But no one in their right mind would call rule changes prior to a big game that disproportionately affected one side would be fair, at least relative to the prior process. Yet this last statement is the essence of the battle: Many Democrats think the prior rules were unfair even if they were constitutionally fair. When the state says you can’t have 24-hour drive by voting, making changes to that rule is Jim Crow 2.0. The problem with that view is that in pretty much every case of Jim Crow 2.0 arguments against voting law changes, the changes made are entirely consistent with what many other non-Jim Crow 2.0 states are doing (e.g., Delaware). For any readers that disagree with me on this, I’d love to see very specifically in the comments which part of say Georgia’s or Texas’ law that you are so upset about. And do the legwork to verify that no other states are doing things similarly. I think you’ll be surprised if you do that.

So what to do. Many states have taken up new laws in the aftermath of the 2020 election to ensure that court-ordered changes for that election are not made permanent. That’s a far better path than calling for a major event on the Capitol on January 6th. And as much as I condemn Stacey Abrams’ stolen election claim, she didn’t just lie down, she went out and registered 800,000 voters that were likely to vote Democratic. For conservatives, where is your similar effort?

Democrats wrap their personal interest around the public interest of Democracy–getting people the right to vote. Republicans wrap their personal interest around election integrity–that we need to ensure that only legal votes are allowed to count. I think there are ways to accomplish both objectives reasonably–indeed I don’t think we’re far off that mark now. The bigger problem is that we are a very evenly divided country right now, so that each losing side can just imagine that the shenanigans of the other side were what led to the other’s victory. So let’s be really careful as to what we call fraud, and what we call free and fair.