When Electors Fake the Vote, Justice Cannot Be a Matter of Taste

In Nevada, I am told, six gentlemen who had been named as electors by one party assembled after the 2020 contest and signed a certificate awarding the state’s votes to their preferred candidate, though the settled count gave victory to the other by more than thirty thousand. Years later, the criminal charges against them have been dismissed; the judge found the evidence insufficient to sustain conviction. Similar efforts to prosecute such “fake electors” in other places have likewise miscarried. The law, which ought to be grave, is here reduced to a kind of embarrassed shrug; the drama ends, not with clarifying sentence, but with a technical silence.

Yet in morals, as I argued in The Theory of Moral Sentiments, we do not rest content with what can be proved in court; we appeal to an impartial spectator, well informed and unafraid. Let that calm judge imagine the scene: a group of men, knowing that the official count runs one way, sign a public instrument declaring it runs another. They “openly announce both their actions and their asserted purpose,” we are told, as if candour in falsehood transformed it into truth. The spectator may hesitate over the statute, but not over the character of the act.

Justice, whose preservation I long ago reckoned one of the sovereign’s principal duties, does not consist in condemnation at any price. It requires fair procedure, clear law, evidence brought home to the accused. That a court should dismiss a charge where proof fails is not a defeat but a victory for justice, properly understood. Yet we deceive ourselves if we jump from “not proven” to “praise-worthy.” To escape punishment is one thing; to deserve reward is quite another. Most human conduct lies in that broad territory where the magistrate is rightly silent, but the moralist must still speak.

The defenders of such devices often plead a higher plan: they were, they say, preserving options, preparing for some possible future reversal, keeping their champion’s cause alive while disputes were aired. Here I recognise an old acquaintance, the man of system, who imagines he may slide the pieces on the great chess-board of human society as he pleases, and that the pawns will obligingly move according to his design. But each elector, each citizen, has a principle of motion of his own. The rules that bind their contest must be common and known; when partisans reserve to themselves a secret escape-hatch, they do not refine the system, they corrode it.

Consider, too, how the benefits and burdens are distributed. The gain from such an artifice, had it prospered, would have been highly concentrated: a transient advantage to one candidate and his adherents, a continued hold upon the emoluments and honours of office, command over other people’s money. The cost is diffuse and long delayed: a small but real weakening of faith in the very certificates by which a great commercial and political society records its collective choices. As with many contrivances in trade that I examined in the Wealth of Nations, the advantage is visible and noisy, the injury silent and spread thinly over millions.

Where merchants of my own time met to contrive a “conspiracy against the public,” they generally sought to raise prices or narrow the market. Here the commodity is not wheat but power, and the market is the competition of parties. To forge alternative slates, to multiply certificates, is in effect to tamper with the rules of that competition, to obtain by artifice what could not be gained by the ordinary higgling and bargaining of political persuasion. The impartial spectator does not ask which side of the contest he happens to favour; he asks whether he can, with any steadiness, applaud a stratagem he would condemn if practised by his opponents. If he cannot, self-command demands that he condemn it in his friends also.

What, then, is to be done? Not, I think, to multiply vague and sweeping laws in a fit of panic, for these become themselves instruments of faction. Rather, with slow and patient attention, legislators must clarify the forms by which elections are certified, the circumstances under which alternative slates may be lawfully prepared, and the penalties for misrepresenting the public will. The pieces on the board will still follow their own motions, but they should at least know that to counterfeit the community’s voice is not a gentleman’s game but a wrong against the whole order of society, which even when unpunished is never harmless.