The GOP and the Unfalsifiable Claim

It’s not a new Harry Potter book. It’s the GOP's latest strategy for explaining away its utter lack of evidence of widespread voter fraud.

Photo courtesy of CNN

On Monday, I wrote about Trump’s plan to use the “red mirage” of California's slow vote count to claim the results are fraudulent. Yesterday, the GOP leadership revealed how it will help him shape the false narrative that the midterm elections are somehow rigged in favor of the Democrats.

How they’ll prove that without actual evidence has always been a bit of a mystery. But no longer.

House Speaker Mike Johnson went on CNN Monday afternoon to echo the president’s claims. When CNN’s chief congressional correspondent Manu Raju pressed him on whether he had actual evidence that the California election had been rigged, Johnson’s answer was both candid and alarming. “I don’t,” he admitted. “Some of these efforts are so diabolical and so far upstream that it is impossible to prove. But I think everybody knows instinctively something is wrong here.”

Vice President JD Vance joined the chorus on Jesse Watters’s Fox News program, calling the results “pretty shady” and suggesting that mail-in ballots ought to rank candidates in the same order as election-night totals. That’s a standard with no basis in how elections actually work, in California or anywhere else.

The outrage masks one inconvenient detail. The same “rigged” California system had somehow allowed Trump-endorsed Republican Steve Hilton to advance to the general election in the governor’s race. For a conspiracy apparently so diabolical it defies detection, it had a curious blind spot.

The GOP’s new argument is that the mere suspicion of fraud, unmoored from any evidence, is enough to delegitimize results Republicans don’t like. It is a position that is both remarkable and dangerous. It is also, to students of American history, disturbingly familiar.

The “Invisible Deadline for Sabotage”

History may not repeat itself, but its lyrics often rhyme. I composed the score to the Broadway show Allegiance, set during the Japanese American internment. So when I heard Johnson utter those words, they stopped me cold.

In 1942, Earl Warren (yes, that Earl Warren, who later became a liberal Chief Justice) was California’s ambitious attorney general. He was calculating, with a keen instinct for which way the political winds were blowing. In the weeks after Pearl Harbor, as fear of a Japanese invasion swept the West Coast, Warren appeared before Congress to make the case for the forced removal of Japanese Americans from their homes, their farms and their communities.

His argument was not that Japanese Americans had committed acts of sabotage or espionage. In fact, he admitted none had been reported. Instead, he turned that absence of evidence into evidence itself. He infamously claimed that the absence of reported sabotage or espionage was itself proof that something terrible was coming.

Historian Roger Daniels later gave this reasoning its epitaph: the “Invisible Deadline for Sabotage” theory. Warren had constructed an argument that could never be disproved. in Warren’s twisted logic, no evidence of wrongdoing only meant the wrongdoing was being carefully concealed, waiting to strike.

More than 120,000 innocent people were uprooted from their lives, in part because of that tortured reasoning.

Speaker Johnson invoked a kind of “Invisible Sabotage” himself on Monday: “Some of these efforts are so diabolical and so far upstream that it is impossible to prove.” Replace “these efforts” with “their sabotage,” and Warren could have said it in 1942. As with Warren, Johnson’s accusation is evidence-proof by design. He presents the lack of evidence not as a weakness in his claim, but as a sign of the enemy’s sophistication.

Warren later expressed deep regret for his role in the internment, calling it one of the great mistakes of his life. That regret came too late for the tens of thousands of people who lost their homes, their livelihoods, and in some cases, their lives.

Beware the unfalsifiable claim

There’s a name for the kind of argument made then by Warren and now by Speaker Johnson: the unfalsifiable claim. The philosopher Karl Popper argued that for any assertion to qualify as a genuine factual claim, it must be possible, at least in principle, to prove it wrong. A claim that cannot be disproved by any conceivable evidence is a trap dressed up as a factual assertion.

Johnson’s formulation is exactly that trap. If evidence of fraud emerges, that proves the fraud. If no evidence of fraud emerges, that proves the fraud is too sophisticated to detect. It’s “heads I win, tails you lose.” There is no result, no audit, no court finding, no canvass outcome that could ever satisfy this standard because the standard was never designed to be satisfied. It was designed to be repeated.

Speaker Johnson wasn’t alone in this effort, which suggests the line is now a GOP messaging point. The No. 2 Republican in the House, Rep. Steve Scalise (R-LA), took us one step further toward the cliff, dropping even the pretense that any factual claim, much less proof, is required. “Whether you can prove fraud or not,” he said, “it does undermine integrity in the vote.”

Note what Scalise is actually saying. He’s arguing that the very suspicion of fraud—invented and stoked by the GOP itself, evidence-free, conjured from nothing more than a losing result—is enough to corrode faith in an entire election. “The vote count felt off to us, so it’s your fault that we’re ready to discard the results!” is quite the position.

Then there’s Sen. Ron Johnson of Wisconsin. When a NewsNation host pressed him on why no evidence of large-scale fraud had ever materialized, Johnson had a ready answer: “I mean, people do things to cover it up.” Johnson, in other words, attributes the absence of evidence to a massive cover-up.

That is standard operating procedure from the Trump White House: accuse the other side of precisely what you are doing, in this case, a cover up of a huge crime. In the Epstein files case, there is plenty of evidence of that cover up, whereas here there remains exactly none.

Johnson might have gotten away with the “cover up” framing had he not been caught on hidden camera in 2021 stating plainly that the 2020 election was not stolen and that Trump had lost. He knows the argument is false but is making it anyway.

No, vibes aren’t admissible evidence

There is a reason Trump’s legal team lost more than 60 post-2020 election lawsuits before judges from both parties, including many Trump appointed. Courts of law operate on evidence. Vibes, instincts and faith-based assertions are not cognizable legal theories. Judges know precisely what to do with claims that lack admissible evidence: dismiss them.

The post-2020 litigation is instructive. In case after case, Trump attorneys who had spent weeks on television claiming massive, coordinated fraud walked into courtrooms and conceded they were making no such allegations. The reason was simple: making a fraudulent claim to a court carries immediate consequences that making one on social media or television does not.

Speaker Johnson, Rep. Scalise and Sen. Johnson know this. But their arguments were never designed for a courtroom. The unfalsifiable claim is a political instrument built for feeds, rallies and the grievance ecosystem, where evidence is beside the point, blind faith is a test of loyalty, and unfounded suspicions are self-sustaining.

These claims worked well enough in 2020 to send a mob into the Capitol. With five months remaining before the midterms, it is being road-tested again.