A man voting behind a desk with a privacy guard that reads

Trump and the burden of proof

Andrea Widburg of the American Thinker ponders President Trump’s approach to accusations of election fraud.

On Friday, President Trump tweeted something important. He asserted that Biden must prove that his votes did not result from fraud. People scoffed, but as a practical matter, Trump is correct.

Most people know about the different burdens of proof a plaintiff carries in court. In descending order of intensity, they are “beyond a reasonable doubt,” “clear and convincing evidence,” and “preponderance of evidence.” Practically, speaking, though what do those mean?

Imagine that the plaintiff and the defendant are on opposite sides of a tennis court. The plaintiff serves first.

With that first serve, the plaintiff has to get his evidence – his proof about the facts he’s alleging — over the net onto the defendant’s side of the court. If the case requires only a preponderance of evidence, the evidence just needs to clear the net. If the standard is clear and convincing evidence, it needs to go about halfway onto the defendant’s side of the court.  …

… The real question is about Biden’s return volley. He must prove either that the eye-witnesses, the mathematical experts, and the equipment experts lied or are mistaken, or he must provide a compelling counter-narrative to explain how he got more votes than Obama did in 2008.

At a minimum, Biden must have eyewitnesses about signature verification, timely mail-in ballots, the absence of duplicate votes, properly functioning machines, etc. His problem is that the Democrats destroyed all or most of that evidence. On those issues, therefore, the missing evidence presumptively supports Trump’s case.

Trump is saying that his teams can easily get his evidence to Biden’s side of the net. However, not only must Biden counter that evidence, he’s horribly handicapped because of the presumption that all his missing evidence supports Trump’s case.

Mitch Kokai / Senior Political Analyst

Mitch Kokai is senior political analyst for the John Locke Foundation. He joined JLF in December 2005 as director of communications. That followed more than four years as chie...