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Joshua A. Douglas: Unsubstantiated assertions that Russia actually manipulated the vote tally are themselves dangerous

It undermines the legitimacy of our electoral system to suggest something was amiss based on sheer speculation, he writes

Editor’s Note: Joshua A. Douglas is a law professor at the University of Kentucky College of Law who specializes in election law and voting rights. He is the co-editor of “Election Law Stories.” Follow him on Twitter @JoshuaADouglas. The opinions expressed are his own.

(CNN) —  

The revelations that Russia actively sought to influence the American election and help Donald Trump become the next president are shocking, mind-blowing and downright scary. But here is something they are not: evidence that the Russians hacked voting machines or changed the Election Day count. Unsubstantiated assertions that Russia actually manipulated the vote tally are themselves dangerous.

Joshua A. Douglas
Courtesy Joshua A. Douglas
Joshua A. Douglas

News reports have said that the CIA concluded Russia sought to influence the election result, particularly by providing WikiLeaks with emails that Russia obtained by hacking the servers of the Democratic National Committee and Democratic individuals.

The Russians may still be holding onto information they hacked from the RNC servers. These facts, which the intelligence community knew about even before the election, should send shivers down the spines of all Americans. They are what prompted a bipartisan group in Congress, as well as Hillary Clinton spokesman John Podesta, to demand further investigation and public disclosure of what exactly Russia did to influence the campaign. Understanding what happened is vitally important, so the intelligence community should act quickly to assuage Americans’ concerns.

But saying that Russia sought to influence the campaign and help Trump’s chances is not the same as saying that Russia actually manipulated the voting process.

Indeed, the Clinton campaign and the Obama administration have both said that they do not have any evidence that Russia hacked voting machines or altered voting technology. A federal judge, in rejecting Jill Stein’s lawsuit seeking a statewide recount in Pennsylvania, also pointed to a lack of evidence of election machine hacking.

Here is why that matters: Unless and until we have actual evidence of voting manipulation, it undermines the legitimacy of our electoral system to suggest something was amiss based on sheer speculation. And it could cause politicians to adopt laws in the name of “election integrity” that will actually harm the fundamental right to vote.

This speculation is much the same as the frenzy over voter fraud that has no evidence to back it up, with significant consequences for our elections. Republicans for years have argued that concerns of voter fraud support strict voter ID measures, even though there is virtually no evidence that in-person impersonation occurs to any significant degree. “Voter fraud is difficult to detect,” they may respond, “so why not do something to improve the integrity of our elections?” The consequence, however, of a voter ID law is that thousands of people will have a harder time voting.

Mere speculation that the Russians hacked our voting machines could also lead to calls for election integrity measures that could have negative effects. Indeed, Donald Trump has already signaled his belief, without any evidence, that there were “millions of illegal votes” and that he wants to reconsider certain voter-friendly measures such as early voting.

Unsubstantiated claims of election machine hacking could, for example, embolden Trump and his supporters to call for a reduction of early voting because they fear voting machines are not secure. At least so far, however, there is absolutely no evidence of election machine hacking by Russia or anyone else.

Of course, it would be great if these allegations prompted reform where we actually need it: updating our aging voting equipment. States and localities must provide the resources to improve our voting technology, especially to ensure a verified paper trail to improve the post-election process. We should also institute more widespread and routine audits after the election. The claims of Russian hacking – whether substantiated or not – should create the impetus for these reforms, which will benefit all voters.

But the concern is that unsupported allegations will create an environment in which politicians use the frenzy of election hacking claims to push through measures that will disenfranchise voters. We are already seeing this happen in Michigan. Stein sought a recount of the presidential election in the state largely because of concerns about the reliability of the result and speculation of possible tampering, which in turn caused Michigan Republicans to push a new strict voter ID bill.

As one Michigan legislator noted, “This lemon of a recount may turn into lemonade from the standpoint of helping us firm up the integrity of the voting process.” The general speculation about “election integrity,” without any actual evidence to support it, is thus emboldening Michigan Republicans to enact a law that will have negative effects on the right to vote.

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If reliable evidence does come out showing the Russians hacked our voting machines in addition to seeking to influence the campaign, then we should certainly take appropriate corrective action. And even without that evidence, we should improve our voting technology to ensure no one can alter our Election Day process in the future. But we should also be careful about claiming the Russians actually changed the vote count without evidence. Sowing unsubstantiated doubt about “election integrity” could have negative consequences for how we administer our elections.