Opinion: Claims of a stolen election undermine our democracy

I was deeply disturbed by former President Donald Trump’s claim, first made within days of the 2020 presidential election, that he had actually won because the results were tainted by massive fraud in the battleground states. If true, that would be the greatest crime in the history of our nation. If false yet believed, such a claim would do great damage to the Constitution and our republic. And it was believed by the men and women who stormed the Capitol on Jan. 6, 2021, in a violent attempt to stop Congress from certifying President Joe Biden’s election. Nothing like that had happened in the history of our nation. All of this brought to my mind the warning of Jonathan Haidt, the renowned social psychologist, that our democracy will fail if we drain all trust from it.

Had the election been stolen? I wanted to know. But rather than rely on the arguments of politicians or the assertions of pundits on media outlets, I put together an informal group of experienced conservatives I knew and trusted to make our own independent examination of this deadly serious charge. Every member of our group had worked in Republican politics, been appointed to office by Republicans or was otherwise associated with the GOP. None of us voted for Biden nor bore any ill will toward Trump. Three of our group (including me) were former federal appeals court judges who had been appointed by Republican presidents. Another was Michael McConnell, now at Stanford Law School, but formerly of the University of Utah School of Law and the U.S. Court of Appeals of the 10th Circuit. We had confidence in our ability to study and analyze competing claims and determine what really happened. No outside group commissioned this project or financed our effort. It was my idea.

For over a year, our group did a deep dive into the issue. We examined every claim of fraud and miscount put forward by Trump and his advocates in each of the six battleground states: Arizona, Georgia, Michigan, Nevada, Pennsylvania and Wisconsin. Our conclusion was unequivocal. There was no evidence of fraud in the 2020 presidential election on the magnitude necessary to shift the result in any precinct, let alone any state or the nation as a whole. Biden won. He was the choice of the majority of the electors, who themselves were the choice of the majority of the voters in their states. We published the results of our investigation online in a report titled “ Lost, Not Stolen: The Conservative Case that Trump Lost and Biden Won the 2020 Presidential Election .”

We did not claim that election administration in our nation is perfect. Election fraud is a real thing; there are prosecutions in almost every election year, and no doubt some election fraud goes undetected. Nor did we disparage attempts to reduce fraud. States should continue to do what they can do to eliminate opportunities for election fraud and to punish it when it occurs. But we did conclude, based on the evidence, that fraud played no role in the outcome of the 2020 presidential election.

Claims that the election was stolen are deadly serious and should be made only on the basis of real and powerful evidence. Trump and his supporters failed to present such evidence. His victory is easily explained by a political landscape that was much different in 2020 than it was when he narrowly won the presidency in 2016. He waged his campaign for reelection during a devastating worldwide pandemic that caused a severe downturn in the global economy. The data show that he fared poorly among suburban women nationwide. And a significant number of people cast votes for other Republicans on the ballot but not for Trump (a remarkable fact that charges of fraud fail to account for). These are the reasons Trump was not reelected, not fraud.

One of the great untold stories of the last 30 years is how those tasked with administering our elections have helped create a modern election system in which we can and should have confidence. I grew up hearing stories of stuffed ballot boxes in Philadelphia and dead people voting in Chicago, and those stories were sadly true. But that was then. Today, in all 50 states and at the national level, our elections are administered by trained professionals from both sides of the political aisle who have an established track record for fairness. I have met many of these good people from across the nation — Republicans, Democrats, independents, conservatives, progressives and libertarians. Regardless of their political views and affiliations, these professionals are committed to conducting fair and transparent elections. Their performance in 2020 was praiseworthy and all the more remarkable because of the extraordinary circumstances caused by the COVID-19 pandemic, which precipitated changes on an unprecedented scope and timeline. Some of those changes may have created possibilities for fraud, but there is no evidence that those risks materialized in reality; nor did they result in dampening voter participation — quite the opposite.

Utah’s Lt. Gov. Deidre Henderson has recently given a rousing defense of the trustworthiness of her state’s election system. Similar defenses could be given in every state.

In every jurisdiction, there are transparent recount and election contest procedures designed to allow candidates to investigate and litigate claims of voter fraud and corruption. Those procedures have been tested in every presidential election since at least 2000 and have been found in every instance to be sound and reliable. The Trump campaign and its supporters had full access to these remedies and used them in scores of proceedings in the battleground states, and in each instance, their claims of fraud and miscount failed.

They filed 64 cases containing 187 counts in state and federal courts in the battleground states. They also utilized some of the recount and contest procedures available to them under state law. We examined every count of every case brought in these states. In Arizona, Georgia, Michigan, Nevada and Wisconsin, they lodged allegations of fraud, the improper counting of ballots, irregularities in the handling of absentee and mail-in ballots, rigged voting machines, ineligible voters and blocked access by election monitors. In Pennsylvania, although Trump verbally attacked the elections as fraudulent, his lawyers never filed such charges.

Thirty of those cases were dismissed after a hearing on the merits, and 14 were voluntarily dismissed by Trump and his supporters. Twenty others were dismissed before a hearing on the merits. Only in one Pennsylvania case did Trump and his supporters prevail, but the case didn’t include allegations of fraud and involved far too few votes to overturn the results. Post-election audits or reviews in each of these states also failed to show any irregularities or fraud that would overturn the electoral results. In short, Trump and his supporters had their days in court — in many cases, in front of judges he had appointed — and failed to produce substantive evidence to make their case.

In our system of government, these cases provided the forums in which Trump and his supporters should have proven their claims. Our report shows that those efforts failed because of a lack of evidence and not because of erroneous rulings or unfair judges. Judges, legislators and other election officers, often including members of his own party, gave Trump ample time and every opportunity to present evidence to make his case. In many cases, after making extravagant claims of wrongdoing, Trump’s legal representatives showed up in court or state proceedings empty-handed, and then returned to their rallies and media campaigns to repeat the same unsupported claims.

Even now, four years after the election, a period in which Trump’s supporters have been energetically scouring every nook and cranny for proof that the election was stolen, they come up empty. Claims are made, trumpeted in sympathetic media, and accepted as truthful by many patriotic Americans. But on objective examination they have fallen short, every time.

Just this year, Justin Grimmer of the Democracy and Polarization Lab at Stanford University and the Hoover Institution published an 85-page analysis of the fraud claims. His conclusion: “All of the claims we evaluate fail to provide evidence of fraud or illegal voting. Trump’s claims ... are riddled with errors, hampered by misunderstandings about how to analyze official voter records, and filled with confusion about basic statistical techniques and concepts.”

Many who claim the election was stolen point to the Dinesh D’Souza film “2000 Mules,” which attempts to demonstrate rampant voter fraud in the 2020 presidential election through digital device location-tracking data. Yet the film has subsequently been thoroughly debunked in multiple analyses . What the film claims to portray is simply not supported by the evidence.

Repetition of these false charges causes real harm to the foundations of our republic. That 30% of the population as a whole and 60% of Republicans lack faith in the results of a presidential election based on unsubstantiated claims that it was “stolen” is not sustainable in a democracy, and it discredits those who make those charges.

Conservatives seek to preserve the best elements of our traditions. Tearing down faith in an election administration system when the facts show that it is reliable and trustworthy is not conservative. I urge my fellow conservatives to cease making unfounded claims that the 2020 election was stolen. These claims not only damage the Constitution, but they distract from the important work of presenting to voters candidates and ideas that offer a positive vision for overcoming our current difficulties based on conservative values that will bring liberty and prosperity to our nation and help unite our divided land.

Thomas B. Griffith was appointed to the United States Court of Appeals for the D.C. Circuit by President George W. Bush in 2005 and served until 2020. He attended and later served as general counsel for BYU and is currently a fellow at the Wheatley Institute and a lecturer on law at Harvard and Stanford.