The Mysterious Case of the Absence of Evidence

We live in what might be called a political opinion “bubble.” One of the features of this bubble is the authority of science. This is the idea that the magic words “the science is settled” foreclose further discussion of an opinion. It is often expressed as I f—ing love science, or IFLS.

The reason IFLS exists is to enforce political dogmas with the authority of empirical material science. The flip side of IFLS is the conflation of the absence of evidence with proof or conclusive evidence. Let’s call this I f—ing love evidence, or IFLE. The purpose of IFLE is to discredit facts that might be used to resist a policy or political act. 

A few days ago, USA Today ran an IFLE story under the headline “Fact check: No evidence defunding police to blame for homicide increases, experts say.” 

The “experts say” part of the headline is a sly admission that IFLE really means I am feeling stupid, or IAFS. When someone points out that politicians degraded the anti-homicide infrastructure and an increase in homicide followed, that is evidence of causation. It may not be conclusive evidence. It may be only circumstantial evidence. Maybe it is just a correlation. 

There is a strong correlation between the broken windows policing that George Kelling and James Q. Wilson promoted in the 1980s and a reduction in homicide. During the Rudy Giuliani and Michael Bloomberg Administrations from 1994 to 2013, when broken windows policing was forcefully implemented, New York City homicides declined dramatically from above 2,000 in 1994 to 335 in 2013. Homicide rates thereafter remained roughly flat throughout the de Blasio Administration until 2020, the year of the defund the police movement. By 2021, homicides had jumped to almost 500, a 49 percent rise from 2013 levels. 

That’s evidence. Just because it doesn’t support a favored policy preference or factional interest doesn’t change that. “Experts say” is a preemptive defense that not USA Today but its expert sources are the ones suffering from IAFS. 

This brings me to the obscure matter of John Eastman, a lawyer for former President Donald Trump who advised on 2020 election matters. 

The United States District Court for the Central District of California Southern Division recently denied Eastman’s request for a preliminary injunction to protect his papers at Chapman University, where he was formerly dean of the law school, from the subpoena of the House Select Committee to Investigate the January 6 Attack. 

In the order denying the motion, the “Facts” section states, “Despite the lack of any evidence of voter fraud or election tampering ‘a significant portion of the population came to believe the election was tainted by fraud, disregard of state election law, misconduct by election officials and other factors.’” The words “despite the lack of any evidence” through “tampering” were added to a quotation from the plaintiff’s complaint. 

Courts are in the evidence business. The “facts” are supported by evidence and decisions are made based on “burdens of persuasion” such as “preponderance of evidence” (more than half), “clear and convincing evidence” (strong evidence) and evidence that is “beyond a reasonable doubt” (no reasonable person could doubt it). In criminal cases there may be instances where there is a lot of evidence, even clear and convincing evidence, that the defendant murdered the victim, but no conviction because a reasonable person could doubt it. 

Facts can be established in court by the submission of testimony, physical evidence, and documentary evidence. They can also be established by judicial notice, where the court simply notices a fact that is generally known or can be readily determined from sources whose accuracy cannot be questioned. It appears that the court took judicial notice that there is a lack of any evidence to support the beliefs of nearly half the electorate. If the court is taken at its word, the beliefs of this half of the electorate are less creditable than the 40 percent of Americans who believe UFOs are visiting Earth from other planets. After all, there is evidence of crafts zooming about using unknown technology

A disturbing irony has pitched its tent in Eastman’s case. We are thought to live in a representative republic in which the electorate determines the broad policy direction for the government. If a near-majority of the electorate believes important political things for which there is a “lack of any evidence” the ground for living in a representative republic seems unstable indeed. The taking of notice of a “lack of any evidence” of misconduct in 2020 is an attack, whether witting or not, of a serious kind on the very idea of government of the people, by the people, and for the people.

It is not a stretch to argue that the Left and the Democratic Party, once a champion of the middle class, represents today the elite of the country against the former middle class. If you don’t believe me, look at this older article on the income inequality of Red and Blue districts in America. Blue districts have vastly higher income inequality and therefore are likely to see things through the lens of their elites, who have vastly more money and (what follows from that) more power than most people in the country. There is strong evidence that the opinions of Blue and Red have a lot to do with oligarchic mores versus republican mores which are driven by economic and class structures. Perhaps this best explains the un-finessed thought that there exists zero evidence to support the opinions of almost half the electorate (mostly the Red half) about the conduct of the 2020 election. 

But it is erroneous, and it is made worse by disparaging all of it as “The Big Lie.” A massive expansion of the use of insecure mail-in balloting, a proliferation of ballot harvesting techniques which when combined with mail-in balloting seriously undermined at least the appearance of fair elections, interruption of counting, and problematic impairment of observation rights all marred the 2020 election. 

Admittedly, the grandiose behavior of certain persons connected to the president did undermine the credibility of such claims. But “lack of any evidence” is an unserious assertion. Defenders of representative republicanism would be better off admitting there is evidence, but they do not find it sufficient, and in any event, in the interests of certainty, the matter was put behind us by the many courts that were petitioned and declined to hear the claims, and on January 6, 2020 when the ballots of the electors were counted.

The view that it is somehow unpatriotic to question the fairness of elections is itself unpatriotic. America has a Voting Rights Act because people doggedly questioned the fairness of elections in America until Congress finally acted to address the misconduct. 

Coleman Young, the former mayor of Detroit, launched his high-profile political career in 1952 when he was called before the House Un-American Activities Committee (HUAC) to be investigated for his role in possible sedition, because his barber peddled street corner Marxism and Young might have shared some of his barber’s opinions. 

To defuse the inquiry, Young said to HUAC Chairman John Wood of Georgia: “I happen to know, in Georgia Negro people are prevented from voting by virtue of terror, intimidation, and lynchings.”

Without evidence, I submit that John Wood said, more than once, there is no evidence for that

About Jay Whig

Jay Whig is an adjunct fellow of the Center for American Greatness. Whig practices law in New York and a resides in Connecticut, specializing in insolvency and restructuring. Opinions are his own.

Photo: iStock/Getty Images

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