Do we know who won the US Presidential election?

When faced with genuine questions, I ask experts who I trust. One of my contacts had some questions about the US election result and Professor Jack Goldstone has kindly addressed these.

Dear Mr. Hubbard,

Let me try to answer your queries. Like you, I wish that the election results in the US be seen as fair and wholly legitimate.  Allegations have been made of election irregularities, including fraud. These come under three headings:

(1) One is allegations of illegal votes being counted (no signatures, dead voters, etc.). These have all been examined by multiple recounts of the paper ballots, including hand checks and in some cases full county recounts. Both local election authorities and the US Department of Justice have found there is no evidence of illegal votes in anything like the volume (tens of thousands) that would affect the results. Careful searches across half a dozen states have turned up only a few dozen cases that were quickly caught and corrected.

(2) Second is allegations that voting machines used by Dominion somehow shifted votes, or that votes were moved around in dark of night, or shredded, or other dark “conspiracy” theories. These have been fully debunked as the result of unfounded allegations, rumors, documented video footage, or other errors. Here is a statement issued by one right-wing media outlet, American Thinker, that published extensive comments on the Dominion voting machine controversy, accusing them of shifting votes; they faced legal action and therefore issues this rather bald apology:

Other conspiracy claims are equally without merit.

(3) Third, and directly to the point you make, there have been legal claims that states wrongly counted votes that were not cast in person on election day. This includes absentee ballots that were submitted by mail; absentee ballots that were deposited in state collection boxes at public libraries and government offices; and mail-in ballots that arrived after election day but were still counted. As you know, holding an election during a deadly epidemic required some safety measures to allow all registered voters to cast their vote safely. So in many states—including Texas, Pennsylvania, Michigan, and others—state governors or election officials sent out absentee ballots to all registered voters, or allowed voters requesting absentee ballots to drop them at official collection boxes posted in at government buildings (which were generally under remote camera observation to prevent tampering). Given the crush of absentee ballots, governors or state election officials also allowed extra days in some states for the ballots to arrive, just as has always been done for US Citizens serving overseas in government or military positions, whose mail-in ballots are accepted up to two weeks after the official election date.

The legal claim is not that these ballots were not cast by legal voters; rather the claim is that because the changes in rules to allow these absentee ballots to be mailed or cast in larger volume than in previous elections was made by governors or state election officials, and not by provision of laws passed by the state legislature, these changes (and the ballots cast and collected according to them) are illegal and unconstitutional. That is because the US constitution specifies that the “manner of choosing Electors to the Electoral College” shall be “set by state legislatures.”

All such claims were quickly set aside by the courts as ludicrous. There are three clear reasons why. First, the courts noted that the “Manner of choosing elections” refers to the choice of WHO shall decide. All states have chosen an election contest with votes cast by registered voters in a state-wide election (or in two states, a district-wide election) to determine the state’s Electors. They could have chosen to vest that choice in the governor, or in a vote of the state legislature, but they did not—they vested that choice in elections by law, and cannot change that AFTER the election. Now, the details of how that election are carried out are vested by law in state election officials, often including the governor. If it were otherwise, it would take a passage of laws by the state legislature to determine how many election workers would be hired, how many polling places there would be, what to do if there is a flood or other relocation of an existing polling place needed, and a hundred other minor operational decisions. If all operational decisions regarding elections had to be detailed in laws passed by the legislature for each election, then every election in every state of the Union would be invalid, and likely could never be properly carried out. But in fact, the same laws that specify the MANNER of election as popular voting vest considerable discretionary power in state election officials to decide how the voting should be carried out. One cannot invalidate hundreds of thousands or millions of ballots cast by legal voters just on the claim that state election officials were exercising their legal discretion to conduce a safer vote.

Second, and equally important, the various rules for absentee balloting and ballot collection were in many cases just expansions of existing procedures that had been followed for many years. And even if wholly new, they were announced months before the day of the election. IF anyone in the state felt that the rules were illegal or unfair, they had months to lodge objections with the state courts and to request changes from the legislature BEFORE the votes were cast and counted. Once the election has been held, you cannot then decide to challenge these rules because your side lost. So in many cases, courts ruled that challenges to voting procedures had to have been entered and adjudicated prior to the election. If you made no such objections prior, you have no right to contest the outcome because you now decide you don’t like the rules you had accepted earlier. In one case, Trump asked Wisconsin to throw out votes case in two counties that went predominantly for Biden, but NOT to void votes in other counties, even though they were all cast under the same statewide rules!

Related to this issue is that of standing. In the Supreme Court case, a Texas attorney general was challenging the procedures used by the State of Pennsylvania to collect and count votes. The courts said it was up to Pennsylvanians to decide how their state chose electors, and if the procedures did not violate constitutional provisions (such as racial discrimination), but just had different ways of distributing absentee ballots to legal voters or collecting their votes, then any objections to the procedures had to be lodged by Pennsylvanians and decided by Pennsylvania courts. There were many such cases, in fact, brought by the Trump campaign in state courts, and virtually all were lost. By the way, in TEXAS too, the governor had made accommodations in absentee balloting rules to help more voters vote safely; but those non-legislative changes were not challenged, just those in Pennsylvania. That was just ridiculous on the face of it.

Third, and probably of most importance to you, there WERE many cases (remember the Trump campaign filed 65 cases, losing all but one and that one had no impact on voting outcomes) in which the courts DID choose to hear the evidence presented. They all decided the Trump campaign claims were flimsy, without merit, and without supporting evidence (for example, they presented an affidavit from someone who claimed to be a computer expert who worked for Dominion that they believed the machines switched votes. She turned out to be a Trump follower who had audited a one week course on computers and was hired by a temp agency to clean and disinfect the Dominion voting machines after use). If you look up some of the court cases in Wisconsin, Pennsylvania and read the opinions authored by Trump-appointed Republican judges, they all say the same thing: We have considered the claims and the evidence and find no merit in the case.  Yes, in perhaps a third of the court cases, claims were dismissed due to lack of standing or late filing; but most cases reviewed the evidence presented and issued verdicts. In the WI case noted above, U.S. District Judge Brett Ludwig, a Trump appointee, dismissed Trump’s federal lawsuit asking the court to order the Republican-controlled Legislature to name Trump the winner over Democrat Joe Biden. The judge said Trump’s arguments “fail as a matter of law and fact.” The Third Circuit Federal Court of Appeals, in its ruling on a Trump claim regarding the Pennsylvania results, wrote that “Calling an election unfair does not make it so. … Charges require specific allegations and then proof. We have neither here.”

Perhaps most telling should be that the election results were certified in Biden’s favor even in states with Republican Governors and Republican election officials, such as Arizona and Georgia, and Trump’s cases were repeatedly thrown out or decided against Trump by Republican and Trump-appointed judges.

I wish I didn’t have to write at length about this, but you are right that the media has not done a good job explaining why all the myriad claims of election fraud were rejected. That’s because until now, most Americans simply accepted that if the Supreme Court made a ruling on something, that settled it; particularly if that was reinforced by dozens and dozens of other courts saying the same thing. What we have uniquely here is the President and Republican officials rejecting the judgement of the courts and lying about those decisions.

Let’s be clear: Trump has ALWAYS claimed elections were rigged. He claimed that Ted Cruz’s victory over him in the Iowa primaries was rigged. He claimed he “really” won the popular vote in in 2016, and even appointed a commission to look for the proof. It was disbanded after finding no evidence to support Trump’s claim. Trump has been lying about elections since he became a politician. It should be no surprise that he and his supporters lie about this one, and even lie about the court decisions that invalidate their claims. Courts invited Trump’s campaign to provide evidence of fraud. They could not. Trump’s campaign demanded recounts—they changed only a handful of votes. Trump made various procedural legal claims to demand that Biden votes be thrown out—the courts, in over 60 cases, found those claims without foundation or merit. The irrefutable facts after months of massive efforts to prove otherwise is that Biden won a fair and lawful victory, with margins of over 10,000 votes even in the closest and most disputed states. And when all legal votes were counted, Biden had a landslide in both the popular vote and the Electoral College. Period. Trump’s desperate efforts to alter that outcome simply reflect his desperation to remain in office and not be a “loser.” Unfortunately, millions have come to accept his lies about the election, simply because they were repeated so often, so vigorously, and with dubious claims that the Courts did not hear the evidence or were themselves biased or rigged against him. As the lifelong Republican Secretary of State of Georgia said to President Trump, who was pressuring him to change the outcome of the Presidential race in that state, “I’m sorry Mr. President, but your facts are just wrong.”

Please feel free to share this summary with any friends who want to be reassured. Everything I have said here is easily checked against public records and the written decisions of the courts. I hope that is helpful.

Jack A. Goldstone

Virginia E. and John T. Hazel, Jr. Professor of Public Policy and Eminent Scholar

Schar School of Policy and Government

George Mason University