The notion that “there’s no evidence of election fraud” that took hold among Democrats and the mainstream media the night of November 3 is precisely the sort of assertion that lends itself to clear follow-up questions that almost no one seems interested in asking:
What would evidence of election fraud look like? Suppose that some country, at some point, held a fraudulent election. How could anyone prove it? Furthermore, is the only acceptable evidence so clear on its face that it would be evident the moment the polls closed? Couldn’t at least some evidence be hidden where only after-the-fact investigations could find it?
These questions are critical. Short of perhaps widespread videos of soldiers threatening voters, what sort of evidence might the president have presented on election night? What sort of evidence must he now present in order to prevail? Surely, if material election fraud did occur, it must have left some evidence. What is it?
While the specifics of the Trump campaign’s allegations have not yet been formalized (at least to the public), their contours are clear: A handful of jurisdictions under Democratic control destroyed, altered and/or fabricated enough ballots to shift the outcomes in selected states.
How would anyone go about proving such an allegation?
The answer lies in the concept of “evidence marshalling,” a methodology used to bridge the gap between legal reasoning and Bayesian statistics.
Bayesian analysis quantifies the likelihood of competing hypotheses using whatever evidence is available. The certainty and precision of the answer increases as more evidence arrives to support a specific hypothesis, but in a Bayesian framework it’s always possible to assess which answer appears most likely given what is already known.
Without getting into technical details, a Bayesian analysis begins with a “prior probability,” or a judgment derived from experience prior to looking at any specific data. The law reflects this approach (if informally) with “rebuttable presumptions.” A legal presumption is a statement that something is assumed to be true. A presumption is rebuttable if a litigant is allowed to submit evidence establishing that it’s likely false.
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