Voter anomalies are part of the election process and rarely are elections problem-free. Retail anomalies are voting irregularities committed by individuals, such as duplicate voting, impersonation, dead people voting, or voting by felons and noncitizens. Election officials may also perpetrate retail anomalies by preventing individuals from voting. Retail anomalies in a district may affect a close election. In worst cases, the district may have a recount or even reelection. Retail anomalies do not undermine democracy and indicate that the electoral process in the district should be further fine-tuned for legitimacy.
In contrast to retail anomalies, election fraud claims point out the size and scope of a rigged general election to achieve a pre-determined outcome in favor of a political party or a presidential candidate. For example, on October 26, in Georgia, Georgian Dream, a pro-Russian political party, won the general election by a wide margin. The Georgian President and opposition parties claimed massive fraud and Russian interference and called on citizens to take to the streets to protest.
In recent years, election fraud claims have rattled democracy in Pakistan, Brazil, and Venezuela, where losing political parties refuse to accept the election results, blaming the election commission, the armed forces, or foreign governments for manipulating the election outcomes. Per Russian President Vladimir Putin, the United States “all over the world is actively interfering in electoral campaigns in other countries.”
In 2020, President Donald Trump refused to concede the election to Joe Biden, who won both the popular and electoral votes. President Trump said, “If you count the legal votes, I easily win. If you count the illegal votes, they can try to steal the election from us.” He minced no words in saying that the outcome was pre-planned. “Democrat officials never believed they could win this election honestly. . . This (fraud) was unprecedented in American history. This was by design.”
On January 6, 2021, Trump supporters, persuaded by the election fraud claims, attacked the Capitol Building in Washington, D.C., in an apparent attempt to change the election outcome by force. The coup d’etat failed but jolted the world about the fragility of the democratic system.
Electoral Integrity
Competitive democracy — with few restrictions on political parties and candidates and commitment to the people’s will– safeguards free and fair elections by instituting procedures that prevent retail anomalies and make it nearly impossible for massive vote fraud. Some countries, like India and Pakistan, have instituted an independent election commission affiliated with no political party to hold elections. Still, a losing party may accuse the independent election commission of being biased against them and rigging the election for the party that wins the election. Pakistan political parties frequently criticize the military for dictating the election commission to skew the outcomes.
The United States does not have an independent election commission. The nation trusts the official machinery in each state to hold free and fair elections, believing that a predominantly Democrat state, like California, and a predominantly Republican state, like Kansas, would not rig the election against the rival political party candidates. Without an independent election commission, fraud charges are much easier to make on the theory that a Republican state will favor Republican candidates and a Democrat state will favor Democrats. Fraud allegations can be most forceful in swing states where presidential candidates edge each other by a narrow margin of votes.
In the 2020 presidential election, President Trump did not accuse every state in the Union of rigging the election. He blamed the Democratic officials in the swing states, like Pennsylvania, Georgia, Michigan, and Arizona, for committing fraud. Trump said: “In multiple swing states, counting was halted for hours and hours on Election Night, with results withheld from major Democrat-run locations, only to appear later . . . and they all had the name “Biden” on them.”
Even after losing court cases that challenged election results, Trump refused to concede that he lost the 2020 presidential election. He continues to hold on to his fraud allegations, making people nervous about whether he will accept defeat if he loses the 2024 election. Some journalists conclude: “On election night, no matter what the results show, how many votes remain uncounted, and how many advisers tell him otherwise, Donald Trump will declare himself the winner.” This likelihood does not bode well for democracy in America.
Concession is Critical for Democracy
Concession is vital for sustaining democracy as a form of government. A candidate defeated in an election concedes, which means they accept the outcome that the voters have elected someone else, not them. This concession is not mere good mannerism, political generosity, or ethical thing to do. Concession by losing candidates gives legitimacy to the election procedures, respects the voters, and confers legitimacy to the winning candidates. Concession is most important when the election is for the nation’s highest executive office. See how the U.S. presidential candidates have given concession speeches.
When a popular losing candidate withholds concession without making fraud claims, the absence of concession weakens the democratic process. Suppose Trump does not concede the 2024 election but makes no fraud claims against the winner. Even in that case, doubt will linger among Trump voters whether the election was fair. The legitimacy of the democratic system demands unambiguous concession.
The worst-case scenario that undermines competitive democracy is when the losing candidate claims the winner has won by fraud in a presidential form of government. The election fraud claims trash the voting procedures, question the integrity of the election officials, denigrate voters who voted for the winning candidate, and call into question the winner’s legitimacy to govern the nation. Likewise, the fallout is the same in a parliamentary form of government when the losing political parties allege that the winning political party has won by fraud, meaning that the winner has no right to form a government, as in Georgia.
Right Course of Action if Fraud Occurs
Fraud cannot be ruled out in any human enterprise, including democratic elections, no matter how foolproof the election process is and how firm democratic traditions are. Even officials in a well-respected nation can perpetrate voter fraud. To say that an independent election commission could never be corrupt or that, given its spectacular history of holding free and fair elections for hundreds of years, the United States will always hold fair elections is an absolutism we need not accept. If anything, humans have the infinite ability to do wrong when least expected. Repeatedly, humans defy the law of probability.
So, we need a pragmatic way to resolve the fraud claims in a democratic election. Consider a four-step approach: 1) The losing parties and losing candidates refrain from making fraud claims to the public, for making allegations is easy, and even a temporary undermining of electoral integrity breeds discontentment and chaos. 2) They must refrain from asking the people to revolt or protest in the streets. A popular losing presidential candidate or political party commands a large voter base to provoke violence. 3) The losing presidential candidate or political party must use judicial resources to litigate fraud claims. 4) if they lose their fraud claims in judicial tribunals, they must concede the election, for concession by losing parties and candidates is the most critical element of competitive democracy that confers legitimacy on the elected legislature and the elected executive.
Conclusion
There is no divine right to win an office in a democracy. The critical test of whether political parties and candidates are committed to democracy is not outcome acceptance when they win but outcome acceptance when they lose. Nations must devise reliable procedures to ensure the integrity of free and fair elections. Voting anomalies occur in elections, and allegations of fraud are easy to make. Fraud allegations by prominent candidates with a massive voter base undermine democracy much more than the same allegations made by others. For example, Trump’s fraud allegations are more consequential than those made by the Green Party, though no less critical.
However, no system is foolproof, and voter fraud, even in mature democracies, cannot be ruled out. In a democracy, the best way to resolve election disputes is the judicial process, and never by provoking people to rebel — something historically associated with the divine right to rule, triggering a war between God and the Devil. No matter how popular a candidate is and how many voters adore them, they must concede defeat, at least after losing court cases that challenge the election results.
Unfortunately, people seeking power do not think about what is good for the sustainability of democracy. They are self-seeking and believe some higher power has chosen them to “save the country” from thieves and crooked Joes. Yet, democracy cannot submit to anyone’s messiah complex, and it must hold them accountable if they incite revolt and undermine the peaceful transfer of power with baseless election fraud allegations.
Ali Khan is the founder of Legal Scholar Academy and an Emeritus Professor of Law at the Washburn University School of Law in Topeka, Kansas. He has written numerous scholarly articles and commentaries on law. In addition, he has regularly contributed to JURIST since 2001. He welcomes comments at legal.scholar.academy@gmail.com.