As outlined below, the structure of objections to the November 2020 Presidential election often bear a similarity to arguments made in a court of law to defend a person accused of a crime. Senators with legal training (such as Ted Cruz and Josh Hawley, among others) should be well familiar with this standard. This observation, however, raises the important question of why there is not universal acceptance of the fact that, to a moral certainty, the people elected Joseph R. Biden, Jr. to be the next President of the United States.
In the criminal case, a jury is instructed that they may convict a defendant IF guilt is shown beyond a reasonable doubt, but not otherwise. The goal of the procedure is not absolute certainty—for that is not possible. Rather, a juror can vote to convict with a clear conscience IF he or she is convinced of the defendant’s guilt to a moral certainty. Moral certainty is the inverse or correlative of reasonable doubt. Defense counsel may attempt to create reasonable doubt in many ways: challenging the veracity of witnesses, the integrity of evidence, the motive and opportunity to commit the crime, and other approaches. One such technique is to offer the jurors a counter-narrative to explain what happened.
In a courtroom, the judge will decide on admissible evidence and instruct the jury on the applicable legal standard. The structure of the courtroom constrains the contours of counter-narratives available for consideration. The judge specifically advises that defense counsel’s closing arguments do not constitute evidence per a standard jury instruction. Defense counsel may not assert that the accused possibly had a secret evil twin, unknown and separated at birth, who might have committed the crime in place of the accused. The counter-narrative needs at least some factual predicate. Even if such an unsupported counter-narrative was allowed in closing argument, the prosecution rightfully challenges it in rebuttal. The courtroom procedures constrain unsupported counter-narratives. The court of public opinion has no similar check to circumscribe the kind of counter-narrative that might be successfully peddled.
As illustration, one counter-narrative to Biden’s victory is that voting machines were hacked. It is theoretically possible to hack a voting machine. True. But this theoretically possible narrative sits on a bench next to the secret, unknown, evil twin separated at birth. A similar short shrift should be accorded anecdotal evidence that someone voted twice in Great Notch when the delta on vote totals is so large. A mere theoretical possibility, divorced from any evidence, simply does not create a reasonable doubt. Ungrounded speculation does not properly interfere with an important decision which must be made to a moral certainty.
Those objecting to the legitimacy of the election have spun a counter-narrative but they have no evidence to support that counter-narrative. The ability to spin a yarn does not suffice to create reasonable doubt. This is why the court cases filed on behalf of President Trump objecting to the outcome of the election do not withstand scrutiny. The filings do not argue for the grand narrative of theft by voting machine or other dark conspiracy. Rather, these filings debate points of order—like the distance at which a poll watcher must stand or whether a regulation about voting by mail was properly approved. But this is why the failure to recommend acceptance of the electoral college totals cause concern, particularly from those with legal training who know better.
Pushing a counter narrative that could not withstand scrutiny in a court (or, perhaps worse, standing aside in silence while others do so), is harmful to our Nation. The same standard used to determine the fate of a capital defendant should be used to decide the future of our country. Both Republicans and Democrats should unite in affirming to a moral certainty that Joseph R. Biden, Jr. is the rightful President-elect. One must ask about the agenda of those who do not make this affirmation—for it is the only affirmation that truly puts America first.
William H. Widen is a Professor of Law at the University of Miami School of Law.
Suggested citation: William H. Widen, Moral Certainty and Election Legitimacy, JURIST – Academic Commentary, January 18, 2020, https://www.jurist.org/commentary/2021/01/william-widen-us-elections-legitimacy/.
This article was prepared for publication by Khushali Mahajan, a JURIST staff editor. Please direct any questions or comments to her at commentary@jurist.org
