Judging from the replies to my last two posts on the midterm elections, many of my cherished readers want to talk about voter fraud. Your humble blogger, on the other hand, is weary of voter fraud. Extremely weary. Voter fraud has become a fixation of the right in general, not just in America but also in Germany. Before every election, when people fear their party might lose, they start beating the drums about voter fraud voter fraud voter fraud. Then if they lose in a big enough way they flood all channels with voter fraud voter fraud voter fraud. (If they win, though, we suddenly don’t have to talk about voter fraud for some reason.)
Don’t get me wrong: If you can flip an election from a loss to a win by successfully alleging voter fraud, then you should absolutely do so. I will go even further than many of you and say that you should do so whether or not there was any voter fraud at all. The other side would do the same to you and unless you like losing there’s no point fighting with one arm tied behind your back.
But the converse is also true: When your losing politicians concede and you have no viable path to overturn the election, talking about voter fraud is pointless. It is pointless even if there was fraud, because it simply means the other side stole it fair and square (as a friend of mine once put it). Maybe your side should’ve done something about that, or maybe there was nothing to do – either way, you lost. Your situation would be exactly the same if there were no fraud. You need to focus on how to win, not on how to craft happy stories about how you didn’t really lose in some theoretical sense with no practical significance. To the extent it forestalls the examination of real political failures, voter fraud discourse can even be a problem.
I’m sorry if this sounds dismissive, but I just can’t bear another round of voter fraud voter fraud voter fraud. The vast, vast majority of this talk never goes anywhere, but more than that it is just not cynical enough for your pathologically cynical blogger.
One thing I have tried to do here from time to time, not all that successfully, is to desacralise politics. In the distant past, many people believed that their kings were holy beings with a divine mandate and even miraculous powers. That was really dumb. Today, many people believe in sacred constitutional texts and invest various political ceremonies and procedures (such as elections) with a quasi-religious significance. That is also dumb.
States from the Democratic People’s Republic of Korea to the Federal Republic of Germany hold elections. Elections are nothing special, they are as common as toilet paper. In some of these states, elections are mere rituals to christen a preselected political leadership. In other of these states, they are a procedure via which state institutions agree on a common political succession. Voters have a role to play in this procedure, and although it can be an important role, it is not always decisive, for “the people” (a mere abstraction) are not sovereign. Elections become valid when their results are ratified by state institutions, not when votes are validly cast or accurately tabulated. Occasionally, state institutions will refuse to recognise seemingly unproblematic elections. Far more frequently, they will recognise elections that are in fact full of problems and from the naive every-vote-counts perspective completely invalid.
In Germany’s last election, pervasive counting errors excluded the old-left Bündnis Sahra Wagenknecht (BSW) from the federal parliament. If votes for the BSW had been more accurately counted, all the other parties presently in the parliament would have fewer seats. This means, in turn, that Chancellor Friedrich Merz’s government, consisting of the centre-right Union parties and the Social Democrats, would not have a majority. In the Every Vote Counts Theory of Democracy, Merz’s entire government is therefore illegitimate and various presently serving Bundestag MPs have no mandate. This theory is clearly wrong because it does not describe reality. Every informed person knows about the counting error, and yet Merz’s government retains just as much legitimacy as if there had been no counting error at all. This is because state institutions, above all the judiciary, accepted and thereby validated the election results despite their problems.1
Things like this happen all the time in close elections, because all counting systems are subject to some degree of measurement error, much of it unintentional (but some of it not). It is not materially different from the low-level, scattershot electoral fraud that I am quite sure happens all the time as well and that can also swing the odd election. In the United States there is also some degree of looking the other way while non-citizens vote, itself a form of voter fraud. Far more impactful, however, are the perfectly legal things politicians do to change the very composition of the electorate, whether that be gerrymandering, putting recent migrants on a fast-track to citizenship or extending the franchise in other ways (i.e., to ever younger people). More impactful still are all the things the political establishment does well beyond elections to minimise popular influence on politics. The firewall against Alternative für Deutschland is only one example to mention here.
It would be wise for opposition parties disadvantaged by the aforementioned tactics to pursue specific reforms that limit the establishment’s freedom of manoeuvre. Right-of-centre parties in particular should raise massive barriers to citizenship and keep sixteen year-olds out of elections, unless they want the composition of their legislative bodies to shift with every viral TikTok trend. In the United States, strict voter identification laws are an obvious desideratum, though they are opposed by the judiciary for obvious reasons. Fighting pitched battles over specific instances of voter fraud, however, will not work unless key institutions (particularly the courts) are already in your hands. And we have not even gotten to the fact that much rightosphere voter fraud discourse is fundamentally unserious and rooted in deliberately misinterpreted or misrepresented statistics. It is not about winning court cases or shifting institutional consensus on the validity of a specific election, it is about clicks and eyeballs.
Could state institutions lose legitimacy if they repeatedly validate obviously fraudulent or miscounted elections? I don’t see many precedents for this across prosperous Western democracies where voter fraud is frequently alleged, and also I’m not sure what that loss of legitimacy would add up to. Our institutions are extremely stable and powerful right now, which is why they enjoy such freedom with election validation in the first place. To the extent many Western political systems have lost legitimacy in recent decades, the major causes are not related to fraudulent voting. They are rather growing political polarisation together with pervasive misrule and incompetence. Thus parties on the left and the right regard each other as fundamentally illegitimate regardless of whether they were properly elected, and everyone increasingly considers their ruling politicians to be some shade of illegitimate also regardless of whether they were properly elected.
The BSW tried to challenge the federal election results in the courts and force a recount, and that was absolutely the right thing to do. A lot of people fervently supported their efforts, including me. There was a good argument, a semi-viable pathway to success, it met all the criteria. The courts however refused to act and Merz’s government was never in any real danger, because German institutions had already validated the election regardless of the vote.
Let me put it another way: Imagine your political system is not a democracy, but rather an exotic system I'll call a hepatoscopracy. The political succession is determined not by people voting, but by a priesthood that ritually slaughters a goat and reads its entrails. Their reading then designates who is to be the next emperor.
After a while, you notice that the priests reading the entrails are always interpreting the entrails to choose imperial candidates from the same family, regardless of how the entrails themselves ought to be read.
What do you do?
Well, you could produce dense arguments about how they read the entrails wrong, forensically analyse photos of the slaughtered goats' guts and post about what a fraud all this is.
Alternatively, you could try to co-opt the priesthood, read entrails your own way and make guys from your own family emperor.
Also alternatively, you could try to gain a foothold in the institutions that accept and validate the priesthood's readings and put a stop to this nonsense. Or pursue other legal or institutional reforms that limit the freedom of the priesthood to interpret the entrails however they want.
Of these various strategies, one of them is not very likely to work.
Very useful. I will admit I have gotten hung up on this topic. I’m not sure it makes me feel any better to know how meaningless my vote really is.