LOST, NOT STOLEN: The Conservative Case that Trump Lost and Biden Won the 2020 Presidential Election July, 2022 Senator John Danforth Benjamin Ginsberg The Honorable Thomas B. Griffith David Hoppe The Honorable J. Michael Luttig The Honorable Michael W. McConnell The Honorable Theodore B. Olson Senator Gordon H. Smith Contents Introduction ..................................................................................................................................... 1 Executive Summary ........................................................................................................................ 3 Arizona ............................................................................................................................................ 7 1. Claims that Dominion Voting Machines Were Manipulated. ............................................ 10 2. Claims that Ballots Were Not Properly Counted. ............................................................. 10 3. Claims that Unsolicited Mail-In Ballots Were Sent to Voters. ...........................................11 4. Claims that Voter-Eligibility Requirements Were Not Enforced. ...................................... 12 5. Claims that Ballot Drop Boxes Were Not Fairly Located Throughout the State. ............. 12 6. Claims that Poll Officials Failed to Carefully Monitor the Election Count. .................... 12 Summary .............................................................................................................................. 12 Addenda ............................................................................................................................... 12 Georgia .......................................................................................................................................... 27 1. Counting Unlawful Ballots, Including by Deceased, Non-Resident, and other Ineligible Voters. ............................................................................................................... 29 2. Absentee-Ballot Procedures. ............................................................................................. 30 3. Dominion Voting Machine Fraud. .................................................................................... 31 4. Improper Election Result Certification. ............................................................................ 32 5. Observer Access. ............................................................................................................... 32 6. Third Party Funds. ............................................................................................................ 32 Summary .............................................................................................................................. 32 Addendum ........................................................................................................................... 33 Michigan ....................................................................................................................................... 36 1. Challenger Access. ............................................................................................................ 40 2. Dominion Voting Machines. .............................................................................................. 41 3. Absentee Ballot Drop Box Video Surveillance. ................................................................. 42 4. Alleged TCF Center Fraud. .............................................................................................. 42 5. AVCB Balancing, Ineligible Voters, Unsolicited Ballots, and Third-Party Funds. .......... 43 Summary .............................................................................................................................. 43 Addendum ........................................................................................................................... 44 Nevada .......................................................................................................................................... 47 1. Voter Fraud. ...................................................................................................................... 48 2. Interference With Election Observers. .............................................................................. 48 3. Fraud by Agilis Machines. ................................................................................................ 49 i 4. AB4 and Unlawful Absentee-Voting Procedures. .............................................................. 49 5. Voter Drives and Bribery. ................................................................................................. 49 Summary .............................................................................................................................. 50 Addendum ........................................................................................................................... 50 Pennsylvania ................................................................................................................................. 53 1. Extending Election Deadlines. .......................................................................................... 54 2. Inadequate Observation of Ballot Processing. ................................................................. 55 3. Counting Deficient—But Not fraudulent—Absentee Ballots. ........................................... 56 4. Pre-Election Challenges to Changed Voting Procedures. ................................................ 58 5. Voter Fraud. ...................................................................................................................... 58 Summary .............................................................................................................................. 58 Addendum ........................................................................................................................... 58 Wisconsin ...................................................................................................................................... 64 1. Absentee-Voting Procedures. ............................................................................................ 65 Summary .............................................................................................................................. 67 Addendum ........................................................................................................................... 67 ii Introduction We are political conservatives who have spent most of our adult lives working to support 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. As Jonathan Haidt observed, “We just don’t know what a democracy looks like when you drain all the trust out of the system.” Paul Kelly, “Very Good Chance” Democracy Is Doomed in America, Says Haidt, AUSTRALIAN (July 20, 2019). We therefore have undertaken an examination of every claim of fraud and miscount put forward by former President Trump and his advocates, and now put the results of those investigations before the American people, and especially before fellow conservatives who may be uncertain about what and whom to believe. 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. Biden’s victory is easily explained by a political landscape that was much different in 2020 than it was when President Trump narrowly won the presidency in 2016. President Trump waged his campaign for re-election during a devastating worldwide pandemic that caused a severe downturn in the global economy. This, coupled with an electorate that included a small but statistically significant number willing to vote for other Republican candidates on the ballot but not for President Trump, are the reasons his campaign fell short, not a fraudulent election. Donald Trump and his supporters have failed to present evidence of fraud or inaccurate results significant enough to invalidate the results of the 2020 Presidential Election. We do not claim that election administration 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 do 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 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 fact, there was no fraud that changed the outcome in even a single precinct. It is wrong, and bad for our country, for people to propagate baseless claims that President Biden’s election was not legitimate. In the past 30 years, those tasked with administering our elections have helped create a modern election system in which we can and should have confidence. In all fifty 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. 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 64 proceedings in the states we examine, and in each instance, their claims of fraud and miscount failed. Our review of each of these Trump charges affirms that 1 the 2020 election was administered by trained professionals who reaffirmed their established track record for fairness. The performance of the system in 2020 was 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. 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. We urge our fellow conservatives to cease obsessing over the results of the 2020 election, and to focus instead on presenting candidates and ideas that offer a positive vision for overcoming our current difficulties and bringing greater peace, prosperity, and liberty to our nation. 2 Executive Summary As part of his post-election attempts to retain the presidency, Donald Trump and his supporters filed 64 cases containing 187 counts in the six key battleground states, in addition to utilizing some of the recount and contest procedures available to them under state law. The former president maintains to this day that the 2020 election was stolen and the results fraudulent. This Report takes a hard look at the very serious charges made by Trump and his supporters. The consequences of a president and a major party candidate making such charges are monumental. If true, our electoral system is in desperate need of repair. If not true, that must be said because such false charges corrode our democracy and leave a significant share of the population doubting the legitimacy of our system, seriously weakening the country. Every member of this informal group has worked in Republican politics, been appointed to office by Republicans, or is otherwise associated with the Party. None have shifted loyalties to the Democratic Party, and none bear any ill will toward Trump and especially not toward his sincere supporters. Many of us have worked over the years in polling places as part of Republican Election Day Operations looking for the same sort of fraud and irregularities Donald Trump claimed in 2020. Such vigilance is entirely appropriate and must not be stigmatized as “voter suppression.” 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 (page 7), Georgia (page 27), Michigan (page 36), Nevada (page 47), and Wisconsin (page 64). In Pennsylvania (page 53), Trump verbally attacked the elections as fraudulent, but his lawyers never filed such charges in court. For this Report, we examined every count of every case brought in these six battleground states. We include both a narrative for each state and an accompanying Addendum listing each case and its disposition. We conclude 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 brought by Trump and his supporters, twenty were dismissed before a hearing on the merits, fourteen were voluntarily dismissed by Trump and his supporters before a hearing on the merits, and 30 cases included a hearing on the merits. Only in one Pennsylvania case involving far too few votes to overturn the results did Trump and his supporters prevail. Repetition of these false charges causes real harm to the basic foundations of the country, with 30 percent of the population lacking faith in the results of our elections. In our system of government, these cases provided the forums in which Trump and his supporters could and should have proven their claims. This 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. Post-election audits or 3 reviews in each state also failed to show any irregularities or fraud that would overturn the electoral results. 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, twenty months 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. Moreover, even if there were such evidence (which we did not find), there is an obligation on the part of a campaign challenging the veracity of official results to bring its challenges on a timely basis, through the established legal channels, based on ordinary rules of evidence and logic. In our system of government, these proceedings provide the forums in which Mr. Trump and his supporters could and should have proven their claims. They had every opportunity to use those channels. Once they had lost, 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 and threats 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 examined and confirmed. The same system used to bring all his cases, recounts, and contests also sets deadlines for when the process becomes final, a winner is declared, and the losing candidate concedes. Trump failed to abide by that norm in contrast to prior losers of presidential elections such as Richard Nixon and Al Gore. After reviewing the evidence presented in each court case and the post-election reviews with this lens, certain patterns emerge. Most obvious is that the former president’s rhetoric—before, during and after the election—was not supported by the legal cases he tried to make or any evidence he introduced. Cases and reviews in the six battleground states included similar charges and similar dismissals by federal and state courts. This chart describes the nature of Trump’s charges and the pages of each state’s narrative that describe the outcome: Fraud or ballots improperly counted: Arizona, page 10; Georgia, page 29; Michigan, page 42; Nevada, page 48; Pennsylvania, page 58; Wisconsin, page 67. Voting machines producing rigged results: Arizona, page 10; Georgia, page 31; Michigan, page 41; Nevada, page 49. 4 Absentee ballot or mail-in ballot irregularities: Arizona, page 11; Michigan, page 42; Pennsylvania, page 56; Wisconsin, page 65. Ineligible voters: Arizona, page 12; Georgia, page 29; Michigan, page 43. Observers access blocked/failure to monitor polling places: Arizona, page 12; Georgia, page 32; Michigan, page 40; Nevada, page 48; Pennsylvania, page 55. Post-election reviews and audits: In addition to the numerous legal cases, the six states conducted post-election reviews at the insistence of or because of the Trump allegations. This Report discusses those efforts, which also failed to support the allegations from Trump and his supporters: Arizona: Cyber Ninjas review, pages 7–10, 16. Georgia: The Secretary of State manually recounted all five million ballots cast (page 27) and conducted a post-election audit. Michigan: Separate post-election investigations by a Michigan State Senate committee chaired by Republican Ed McBloom, pages 36–40, and Michigan’s Office of the Auditor General, pages 36, 37. Nevada: Republican Secretary of State investigations of voting complaints, page 47. Pennsylvania: A statewide risk-limiting audit in February 2021, page 54. Republican state senators pursued a forensic audit that has yielded no evidence to date, page 54. Wisconsin: The Wisconsin Legislative Audit Bureau, a non-partisan, independent body, found no evidence of widespread fraud to alter the election results, page 64. The conservative Wisconsin Institute for Law & Liberty likewise found no evidence of widespread voter fraud and no evidence of significant problems with voting machines, page 64. Wisconsin House Republicans hired a former state Supreme Court justice to examine the election; an interim report cited no evidence of fraudulent votes sufficient to overturn the results, page 65. After the dismissal of all 64 court cases and state reviews, Trump and his supporters have continued in the sixteen months since Joe Biden’s Inauguration with claims of a fraudulent election. Each has been refuted. Two of the most publicized examples illustrate this. In the first, economist John Lott Jr. produced a paper in Public Choice claiming that “simple tests of voter fraud” showed excess votes for Biden in Pennsylvania and Georgia and 255,000 excess votes in 5 six key states due to artificially large turnout across several counties. That was quickly refuted by political scientists Andrew Eggers and Justin Grimmer.1 A second example is a recent film from Dinesh D’Souza, “2000 Mules,”2 which attempts to demonstrate rampant voter fraud in the 2020 Presidential Election through digital-device location-tracking data. Yet the film, heartily endorsed by Trump at its Mar-a-Lago premiere, has subsequently been thoroughly debunked in analyses.3 What the film claims to portray is simply not supported by the evidence invoked by the film. As this Report notes, in five of the six battleground states, analyses have shown that Trump lost not because of fraud but because a small but significant subset of Republican voters supported the GOP’s candidates down-ballot but did not vote for Trump. In many instances, Republican candidates other than Trump won despite being subject to the same alleged fraudulent systems that Trump supporters declaim. See pages 7, 27, 36, 53, and 64. We are most concerned that even after failing in more than 60 court cases to produce evidence of fraud or irregularities that would change the 2020 election results, the repetition of the false charges of a stolen election continues. To have 30 percent of the country lack faith in election results based on unsubstantiated claims of a “stolen” election is not sustainable in a democracy, and it discredits the political party making those charges. We hope that setting out the full record in this Report will help restore faith in the reliability of our elections. 1 Andrew Eggers & Justin Grimmer, Comment on “Simple Tests for the Extent of Vote Fraud With Absentee and Provisional Ballots in the 2020 US Presidential Election” (Apr. 2, 2022), https://www.dropbox.com/s/ouxd7zinzv8l9o6/Fraud2.pdf?dl=0. 2 2000 MULES, https://2000mules.com/ (last visited July 6, 2022). 3 Danny Hakim & Alexandra Berzon, A Big Lie in a New Package, N.Y. TIMES (May 29, 2022), https://www.nytimes.com/2022/05/29/us/politics/2000-mules-trump-conspiracy-theory.html; Khaya Himmelman, Fact Checking Dinesh D’Souza’s “2,000 Mules,” THE DISPATCH (May 21, 2022), https://factcheck.thedispatch.com/p/fact-checking-dinesh-dsouzas-2000?s=r; Tom Dreisbach, A Pro-Trump Film Suggests Its Data Are So Accurate, It Solved a Murder. That’s False, NPR (May 17, 2022), https://www.npr.org/2022/05/17/1098787088/a-pro-trump-film-suggests-its-data-are-so-accurate-it-solved-a-murder- thats-fals; Ali Swenson, Fact Focus: Gaping Holes in the Claim of 2K Ballot “Mules,” ASSOCIATED PRESS (May 3, 2022), https://apnews.com/article/2022-midterm-elections-covid-technology-health-arizona- e1b49d2311bf900f44fa5c6dac406762; Philip Bump, “2000 Mules” Offers the Least Convincing Election-Fraud Theory Yet, WASH. POST (May 11, 2022), https://www.washingtonpost.com/politics/2022/05/11/2000-mules-offers- least-convincing-election-fraud-theory-yet/. 6 Arizona Donald Trump and his supporters brought eight cases with 29 total counts challenging the results showing he lost Arizona. All were unsuccessful. Subsequently, an Arizona State Senate post-election review conducted by the firm Cyber Ninjas (a private firm hand-picked by the Trump forces) provided Donald Trump and his supporters every opportunity to demonstrate the fraud and irregularities they claimed but could not prove in post-election legal challenges. The Cyber Ninjas’ final analysis reaffirmed Trump’s loss, claiming 99 additional votes for Biden and 261 fewer votes for Trump.4 Biden outperformed Clinton’s 2016 results, and Trump performed worse than he had in 2016. President Biden carried Arizona by a margin of 10,457 votes out of 3.4 million cast in the 2020 Presidential Election, official results from Arizona elections officials show.5 Biden received 49.4% of the vote.6 Trump received 49.0%.7 In 2016, Trump carried Arizona by a margin of approximately 91,000 votes out of almost 2,605,000 votes cast.8 Trump received 48.1% of the vote in 2016.9 Hillary Clinton received 44.6%.10 Disaffection for Trump among Republican voters led to ticket-splitting that hurt Trump and helped Biden.11 Nearly 60,000 voters did not vote for Trump even though they voted Republican down-ballot; of these, 39,000 voted for Biden.12 Considering only the two most populous counties in the state, more than 74,000 disaffected Republicans did not vote for Trump in 2020; 65% of these (48,577 votes) voted for Biden; those 48,577 votes alone represent 4.6 times Biden’s margin of victory over Trump.13 Trump lost significant ground from 2016 among college-educated white women. In 2016, he bested Clinton among that group 48% to 46%.14 In 2020, Biden won 56% of their vote, leaving 4 David Schwartz & Nathan Layne, “Truth Is Truth”: Trump Dealt Blow as Republican-Led Arizona Audit Reaffirms Biden Win, REUTERS (Sept. 27, 2021), https://www.reuters.com/world/us/arizona-republicans-release- findings-widely-panned-election-audit-2021-09-24/. 5 Arizona Secretary of State, State of Arizona Official Canvass (Nov. 24, 2020), https://azsos.gov/sites/default/files/2020_General_State_Canvass.pdf. 6 Arizona Election Results & Maps 2020, CNN (last visited June 9, 2022), https://www.cnn.com/election/2020/results/state/arizona. 7 Id. 8 Arizona Election Results 2016, N.Y. TIMES (Aug. 1, 2017), https://www.nytimes.com/elections/2016/results/arizona. 9 Id. 10 Id. 11 Garrett Archer, The Other Arizona Election Audit: Disaffected Republicans Handed Arizona to Joe Biden, ABC 15 ARIZONA (June 22, 2021), https://www.abc15.com/news/in-depth/the-other-arizona-election-audit; Garrett Archer, How President Joe Biden Pulled Off a Win in Arizona, ABC 15 ARIZONA (Jan. 20, 2021), https://www.abc15.com/news/election-2020/how-president-joe-biden-pulled-off-a-win-in-arizona.. 12 Archer, The Other Arizona Election Audit, supra note 11. 13 Benny White et al., Lessons from Maricopa County: Slow Facts Versus Fast Lies in the Battle Against Disinformation, INDEPENDENT MEDIA INSTITUTE 5 (Sept. 2, 2021), https://docs.real-audits.org/s/nqB2jrAzgPdewi2; see Nathaniel Rakich, How Arizona Became a Swing State, FIVETHIRTYEIGHT (June 29, 2020, 7:33 AM), https://fivethirtyeight.com/features/how-arizona-became-a-swing-state/. 14 Eldrid Herrington, What Happened? Arizona Turned Blue in the 2020 Presidential Election, but the Republicans Still Control the State, USAPP—AMERICAN POLITICS AND POLICY BLOG (Jan. 21, 2021), https://blogs.lse.ac.uk/usappblog/2021/01/21/what-happened-arizona-turned-blue-in-the-2020-presidential-election- but-the-republicans-still-control-the-state/; see also Exit Poll Results and Analysis from Arizona, WASH. POST (Jan. 7, 2021), https://www.washingtonpost.com/elections/interactive/2020/exit-polls/arizona-exit-polls/. 7