Lost, Not Stolen

The Conservative Case That Trump Lost and Biden Won the 2020 Presidential Election

Lost, Not Stolen

Early in 2022, a small group of former officials affiliated with the Republican Party undertook a thorough investigation of every claim of fraud and miscounting coming out of the 2020 presidential election. The group—consisting of two former Republican senators, a former counsel to the Republican Party, a Republican-nominated U.S. Solicitor General, a longtime Republican congressional aide, and three retired federal judges named by Republican presidents—myself included—released the report, “LOST, NOT STOLEN: The Conservative Case that Trump Lost and Biden Won the 2020 Presidential Election,” to the public in July 2022. But our primary audience was Republicans and supporters of Donald Trump who may have been misled by repeated claims by people they trust, including the former president, that the 2020 election had been stolen—and who might be open to a presentation of all the facts by people who share their conservative values. Here is an edited excerpt of that report.

We are political conservatives who have dedicated most of our adult lives to supporting the Constitution and the conservative principles upon which it is based: limited government, liberty, equality of opportunity, freedom of religion, a strong national defense, and the rule of law. 

We have become deeply troubled by efforts to overturn or discredit the results of the 2020 presidential election. There is no principle of our republic more fundamental than the right of the people to elect our leaders and for their votes to be counted accurately. Efforts to thwart the people’s choice are deeply undemocratic and unpatriotic. Claims that an election was stolen, or that the outcome resulted from fraud, are deadly serious and should be made only on the basis of real and powerful evidence. If the American people lose trust that our elections are free and fair, we will lose our democracy. 

That is why we decided to examine every claim of fraud and miscount put forward by former President Trump and his advocates, and our conclusion is unequivocal: Joe Biden was the choice of a majority of the electors, who themselves were the choice of the majority of voters in their states. 

We do not claim that election administration is perfect. Election fraud is real; there are prosecutions in almost every election year, and no doubt some election fraud goes undetected. Nor do we disparage attempts to identify and 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 there is absolutely no evidence of fraud in the 2020 presidential election on the magnitude necessary to shift the result in any state, let alone the nation as a whole. 

In all 50 states and at the national level, there are transparent recount and election contest procedures designed to allow candidates to investigate and litigate claims of voter fraud and corruption. The Trump campaign and its supporters had full access to these remedies and used them to initiate 64 proceedings in the states we examined and, in each instance, their claims of fraud and miscount failed. Our review of Trump’s charges affirms that the 2020 election was administered by trained professionals who reaffirmed their established track record for fairness. 

That the system performed so well in 2020 is all the more remarkable because of the extraordinary circumstances caused by the COVID-19 pandemic, which precipitated changes on an unprecedented scale 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. Nonetheless, moving forward, the states should redouble their efforts to strengthen the integrity of our voting systems and make it as easy to vote and as hard to cheat as possible for persons of every circumstance.

Courts Overwhelmingly Reject Trump Claims of Fraud

As part of his efforts to retain the presidency, Donald Trump and his supporters alleged that the 2020 election had been stolen and the results were fraudulent. They filed 64 cases containing 187 counts in six key battleground states, in addition to using some of the recount and contest procedures available under state law. 

Fraud, irregularities, and procedural deficiencies formed the basis for challenging the results in five of the six highly contested Electoral College battleground states of Arizona, Georgia, Michigan, Nevada, and Wisconsin. In Pennsylvania, Trump verbally attacked the elections as fraudulent, but his lawyers never filed formal charges. 

For our report, we examined every count in every case in these six states. We concluded that Donald Trump and his supporters had their day in court and failed to produce substantive evidence to make their case. Of the 64 cases they brought, 20 were dismissed before a hearing on the merits, 14 were voluntarily dismissed by Trump and his supporters before a hearing on the merits, and 30 cases included a hearing on the merits. In only one Pennsylvania case involving far too few votes to overturn the results did Trump and his supporters prevail. 

These cases provided the forums in which Trump and his supporters could have proved their claims but, as our report revealed, those efforts failed for lack of evidence and not because of erroneous rulings or unfair judges. Judges, legislators, and other election officers—many of them members of Trump’s own party—gave the former president ample time and every opportunity to present evidence to make his case. In many cases, however, after making extravagant claims of wrongdoing, Trump’s legal representatives showed up in court or state proceedings empty-handed. What’s more, post-election audits and reviews in each state also failed to show any irregularities or fraud that would cast doubt on the electoral results. 

And, yet, Trump’s followers returned to their rallies and media campaigns to repeat the same unsupported claims. Even now, 20 months after the election, a period in which his supporters have been scouring every nook and cranny for proof that the 2020 election was stolen, they still come up empty. Allegations are made, trumpeted in sympathetic media, and taken as truth by many Americans. And that is the greater concern that led us to build our report because the repetition of these false charges causes real harm to the foundations of our country, with 30 percent of the U.S. population now expressing a lack of faith in the results of our elections.

Once they lost their 64 cases, Trump and his supporters had an obligation to recognize that the election debate was over. Questions of election legality must be resolved dispassionately in courts of law, not through rallies and demonstrations—and, most emphatically, not by applying political pressure to induce Congress to ignore its constitutional duty and the electoral outcome for which the people voted and which the legal processes of the affected states had thoroughly examined and confirmed. 

For more, go to https://lostnotstolen.org/.   SL

Michael W. McConnell is the Richard and Frances Mallery Professor and director of the Constitutional Law Center at Stanford Law School and a senior fellow at the Hoover Institution. From 2002 to 2009, he served as a circuit judge on the United States Court of Appeals for the Tenth Circuit.