This Tuesday is the special election for Senate in Alabama between the scandal-laden Roy Moore and his Democratic opponent Doug Jones. The Real Clear Politics average has Moore Moore up 3.8 percentage points over Jones in a race that has set a new standard for partisanship in the United States.
Nine women have come out since November, each with their own, independent story about Roy Moore’s misconduct against them. The stories include illicit touching, sexual assault, and child molestation. The Moore campaign has denied the bulk of the allegations, casting blame on every liberal boogeyman from the mainstream media, to George Soros, to a conspiracy of transgender activists.
Senate Majority Leader Mitch McConnell, who backed Moore’s primary opponent Luther Strange, originally called on Roy Moore to step aside from the Senate race. But a few weeks – and a few favorable polls out of Alabama – later, McConnell changed his hardline stance. In an interview on ABC last week he said he will let “the people of Alabama make the call” on Roy Moore.
Frankly, that is fair enough. We have elections for a reason, and it is the responsibility of Alabama voters to choose their representatives. It’s not Mitch McConnell’s prerogative to tell voters who is and who isn’t an upstanding citizen worthy of serving in the United States Senate. It’s a flip-flop from his earlier stance. It punts on the question of whether the Majority Leader believes the women’s stories or Roy Moore’s denials. But taken at face value, Alabama gets to decide who’s their next Senator will be is a perfectly valid stance to take.
What is absolutely invalid, however, is what Senator Tim Scott said on Face the Nation on November 12, 2017. Asked by CBS anchor John Dickerson about Roy Moore, Tim Scott gave the boilerplate “if true he should step down” answer, but then followed it up by saying, “the voters will be the judge and jury for Roy Moore.”
No. They will not.
Put aside the fact that Roy Moore may eventually stand before a real judge and jury for his conduct. Put aside that Alabama voters will not observe hours of testimony and cross-examination. Put aside that the rules of evidence will not spare voters from hearsay and improper character attacks and leading questions. Put aside all of that, and this is still an utterly dumb statement. Voters elect candidates, they don't making rulings on the truth.
Vox’s Ezra Klein commented about this phenomenon in a recent episode of his podcast, people using “elections as an absolution mechanism”. Ezra Klein calls it “absolution,” I prefer to call it “trial-by-election.”
The idea is that if someone is accused of wrongdoing, and they win an election anyway, it serves as de facto proof of their innocence. This is simply untrue. The converse argument, that a candidate accused of wrongdoing who loses an election is thereby guilty of the wrongdoing, is equally false.
President Donald Trump and his staff have used trial-by-election rhetoric to claim innocence in the sexual assault allegations against him – some of which are still pending in actual court. They’ve also used it to discredit the conclusions of FBI investigations into Russian meddling in the 2016 election and claim that it’s entirely proper for the President to not release his tax returns. He won, so he can’t be bad, right?
I don’t know if, or the extent to which, the President colluded with Russians. I don’t know if there are crimes or misdeeds hidden in the President’s tax returns. I do know that winning an election in spite of these controversies is an absurd reason to claim innocence.
Trial-by-election is absurd for the same reason trial-by-combat is absurd. If I committed a crime, but I’m the best soldier in the kingdom, I’ll never be found guilty – I can just demand a trial-by-combat. Is Donald Trump innocent of sexual assault merely because he had a superior understanding of social media outreach and a better understanding of the voter demographics in swing Midwestern states? Is Hillary Clinton guilty of a conspiracy to mislead the FBI because she failed to read the voter’s thirst for bold ideas – regardless of their fiscal, legal, or political implications? Of course not. That’s absurd.
Tim Scott bought into the same absurdity called for a trial-by-election for Roy Moore. Moore is no less a child molester if he wins on Tuesday. The voters of Alabama can choose not to believe the accusers, they can choose not to care if Moore did what he did. Mitch McConnell is right, Alabamans will have to choose which candidate best represents the values of their state. Alabamans will get that choice; they will not, however, get to decide what is true.
Democrats are also guilty of using trial-by-election. Nancy Pelosi leaned on it to justify her initially not calling on John Conyers to resign. The large Republican losses in the 1998 midterms has been used to claim Bill Clinton’s innocence.
I also worry about Democrats claiming a trial-by-election if Roy Moore loses on Tuesday. Just because Roy Moore loses a Senate race does not make him guilty of the crimes for which he is accused. If we truly are finally entering an era when we “believe the women,” then Roy Moore should be considered guilty because of the voracity of the claims made by the nine women that have come forward, and not because he lost a closely contested election.
It’s a fine rhetorical line – saying that people voted a certain way because of what they think is true, and not saying that what those voters believe is factually accurate merely because their guy won. I get why it’s easy for politicians to conflate the two statements, because it implicitly means that voters can get things wrong. It’s hard for a politician to say that. The customer is always right. Even though they are not.
Truth doesn’t stand for election, only politicians do.