A group of establishment Republicans released a report last week claiming to make “The Conservative Case that Trump Lost and Biden Won the 2020 Presidential Election.”
It is not news that Joe Biden won the 2020 election. The report’s strawman-slaying title is intended to suggest that concerns about the integrity of that election are without merit. But the report itself simply goes through court decisions and recounts, listing how they turned out. It focuses on questions about “fraud,” rather than the significant and extremely well-substantiated concerns Republican voters have about the election.
“Their methodology obscures the vast majority of actual material to consider if one were honestly engaging the problems,” said Capital Research Center President Scott Walter. His group has documented the significant role played by Mark Zuckerberg’s private funding of government election offices, a massive issue that the report almost completely elided.
Other major issues were also downplayed or ignored, even as court cases and investigative reports vindicate some of those concerns. In just the last few weeks, the Wisconsin Supreme Court, for example, ruled that unsupervised ballot drop boxes and third-party ballot trafficking both violate state law.
In its report, the group claimed its conservative Republican bona fides were beyond question, asserting that no members “have shifted loyalties to the Democratic Party, and none bear any ill will toward Trump and especially not toward his sincere supporters.”
In fact, the group is a combination of NeverTrumpers and people who thought the Republican Party had gone off the deep end long before Trump’s arrival. The report uses misdirection and red herrings regarding “voter fraud” to avoid talking about genuine and substantiated concerns regarding illegal voting and election integrity. And it is sourced to left-wing corporate media outlets such as The New York Times and The Washington Post, hardly places to go to make any case, much less a credible or conservative one, about the 2020 election.
From the Voter-Rejected Wing of the GOP
Report co-author Thomas Griffith, a former federal judge whose enthusiastic support of Ketanji Brown Jackson was singled out by President Biden in his speech when he nominated her to the Supreme Court, told NeverTrump publication The Dispatch: “The idea is that it’s written by conservatives, for conservatives. We recognize the people who are watching [Morning Joe and CNN] are probably not the people we’re primarily interested in.”
Paul Ryan’s former chief of staff David Hoppe, another co-author, admitted the group got much support for its project from volunteers at high-powered, inside-the-Beltway law firms. Still, corporate media accepted the group’s framing of itself as “conservative.” Even a cursory look at the list revealed that to be overly generous if not completely misleading.
Ted Olson served as former President George W. Bush’s solicitor general, but he is most well known for being the brains and muscle behind the legal campaign to redefine marriage to include same-sex couples. When President Trump sought to have his help to fight against the Russia collusion hoax that so undermined the country, Olson declined to help. He did go on television to publicly disparage the president after declining his request. Olson even tried to get Mitch McConnell to backtrack on his policy of not holding hearings for Justice Antonin Scalia’s replacement until after the 2016 election. Olson is routinely derided by critics as a “conservative attorney for sale,” and someone who has “always been a hired gun.”
Former federal judge Michael McConnell argued on PBS in support of the second impeachment trial for President Trump.
Former federal judge Michael Luttig is already well known for helping out the Democrats’ Ja 6 Committee. He rather famously left the federal bench for Boeing — “taking his toys and going home,” as some put it at the time — after President George W. Bush didn’t put him on the Supreme Court. The Wall Street Journal noted that his resignation letter pointedly didn’t mention the younger Bush.
Luttig also serves on the advisory board of “The Safeguarding Democracy Project,” led by Richard Hasen, an election law professor who criticizes voter ID laws. Its mission statement claims Republicans who questioned the legitimacy of the 2020 election were acting in bad faith, and that election integrity laws passed after the 2020 election “threaten the cornerstone of American democracy.”
Gordon Smith, one of the report’s co-authors, wasn’t even considered a conservative in the old Republican Party back when he served as a senator from Oregon from 1997-2009. Before he became a high-paid lobbyist for the National Association of Broadcasters, he was assessed the fourth most liberal GOP senator after Olympia Snowe and Susan Collins, both of Maine, and Pennsylvania’s Arlen Specter, who officially joined Democrats in 2009. By 2008, when he was defeated, Smith scored only a 33 out of 100 by the American Conservative Union. Just this year, he declined to endorse a Republican for Oregon’s gubernatorial race.
Former Sen. John Danforth of Missouri, another co-author, thought the Republican Party was too conservative by 2005, arguing in The New York Times that it had become a party overtaken by conservative Christians. Danforth, an Episcopal priest, was a public supporter of efforts to redefine marriage to include same-sex couples. He has said the worst mistake he ever made was supporting Sen. Josh Hawley’s political aspirations.
All of the report’s authors are or were Republican, including Hoppe, but they tend to inhabit parts of the old Republican Party that voters are increasingly rejecting, not just for their weak policy proposals but for their habit of cooperating with left-wing media in its unceasing attempts to undermine the new Republican Party’s political strengths.
The Man Who Lost the Decades-Long Battle for Election Integrity
Two days before the razor-thin 2020 presidential election, report co-author Ben Ginsberg, the long-time dean of establishment Republican election lawyers and former counsel to Bush’s presidential campaigns and Mitt Romney’s presidential campaigns, did one of the most hostile things imaginable to Trump and his voters. He went to The Washington Post to beg Americans to vote for Democrat nominee Joe Biden (“My party is destroying itself on the altar of Trump.”) He and other NeverTrumpers represent exceedingly little of the Republican Party outside of the Beltway, but in an election that came down to 43,000 votes across three states, they should get at least some credit — or if you’re a Republican voter, blame — for pushing Biden and other Democrats over the finish line and bringing the country to where it is today.
Ginsberg, it turns out, bears more responsibility for how the election turned out than most, and his op-ed explains why.
It wasn’t just that Ginsberg used his Republican pedigree in order to elevate his hatred of Trump when Republican campaigns desperately needed unity and strength. By November 2020, such tantrums were common among the Republicans who used to control the party. No, it was that he went on an absolute tirade against election integrity itself, adopting every Democrat Party talking point against Republican efforts to secure the ballot box.
Two days before the 2020 election had even occurred — and long before this report came out last week — his mind was made up. Proof of systemic fraud simply “doesn’t exist.” He compared concerns about election integrity to a hunt for the “Loch Ness monster.”
He praised practices enabling widespread unsupervised voting, including unattended ballot drop boxes, drive-through voting operations, and third-party ballot trafficking. He belittled concerns about even weak and insufficient verification systems, such as signature matches. He said Republican lawyers fighting against such practices were engaging in “voter suppression,” a common Democrat talking point.
Months after Ginsberg’s 2020 op-ed mocking election concerns, Time magazine itself confirmed what many Republicans suspected: the existence of a “conspiracy” by powerful Democrats to push through these unsupervised voting practices, creating an election system to ensure the outcome they desired. As Time wrote, it was “a well-funded cabal of powerful people, ranging across industries and ideologies, working together behind the scenes to influence perceptions, change rules and laws, steer media coverage and control the flow of information.”
The successful effort to change hundreds of laws and processes across the country to enable tens of millions of unsupervised ballots to flood the system was led by Marc Elias, the same Democrat attorney who had been behind the creation of the Russia collusion hoax, the lie that Trump didn’t win in 2016 but stole the election by colluding with Russia.
Democrats had been working for decades to accomplish these changes. For nearly four decades, it was Ginsberg’s job to fight them. As the Republican Party’s top election lawyer, Ginsberg was supposed to be the person responsible for pushing back against coordinated and well-funded Democrat efforts to expand unsupervised voting and to make it difficult to scrutinize the resulting ballots that were far more susceptible to fraud.
It’s not surprising that Republicans fared so poorly against the coordinated Democrat campaign to water down election integrity over the last 20 years given that Ginsberg was the guy supposedly leading their fight.
Early on in my reporting for my best-selling book on the 2020 election, I spoke with dozens of Republican attorneys at the state and federal levels who had found themselves battling this widespread and coordinated takeover of the 2020 election. I asked some of them about Ginsberg’s op-ed and work, and how he compared to Elias.
They told me that Elias doesn’t have much going on in his life other than his election work, and he wakes up each morning with big plans on how to manipulate elections. (A look at his active social media presence supports the characterization.) They explained to me that Elias isn’t as good of an attorney as he promotes himself to be, but he’s the type who will argue whatever he needs to for a client. If that means arguing that voting machines aren’t secure — as his group did in 2020 when trying to overturn the results of Rep. Claudia Tenney’s election in New York, he’ll do it. If it means mocking the idea that voting machines aren’t secure — as his group did in 2020 when battling Trump election challenges that same year, he’ll do that too. He takes whatever side of an issue he needs to in order to secure a favorable outcome for his clients.
These sources noted that Ginsberg, by contrast, usually managed to help Elias and other Democrats in their efforts. They said he was a decent and well-connected Beltway attorney, but he didn’t seem to care much about election integrity, relative to his Democrat counterpart’s efforts. He was a fine lawyer who tended to do a mediocre job, they said. In fact, as soon as he retired, Ginsberg’s written and spoken statements have sounded like they could have come from Elias.
Ginsberg even recently co-founded a group to fight election integrity efforts, claiming that such efforts to ensure transparency and accountability put election officials at risk. His co-founder David Becker, formerly with radical left-wing group People for the American Way, now runs the Center for Election Innovation and Research, one of the two groups Zuckerberg funded during the 2020 election with $419 million. Those funds enabled the private takeover of government election offices in the blue areas of swing states. With Luttig, Ginsberg serves on the advisory board of the Safeguarding Democracy Project, the group opposed to election integrity efforts.
So What About the Report’s Substance?
The report was presented as an exhaustive look at what happened in the 2020 election. In fact, it only really looked in a cursory fashion at a limited set of lawsuits officially raised by Trump attorneys in the days and weeks after the election.
The report’s co-authors admitted to The Dispatch that the information in the report wasn’t new. Indeed, it’s seemed mostly to be a summation of what law associates might find in Lexis-Nexis — a recitation of legal cases and brief mentions of a few reports and audits in six battleground states. It did not dig deep into any of them, merely restating the circumstances by which cases were dismissed or resolved. And it doesn’t even do a good job with that.
For instance, it characterizes a report from the Wisconsin Institute for Law and Liberty as finding, “no evidence of widespread voter fraud and no evidence of significant problems with voting machines — in fact, they found that Democratic candidates performed worse than expected in areas with Dominion machines.” Of course, “widespread voter fraud” and “voting machines” are red herrings, intended to divert people from dealing with what actually happened to control the election outcome in Wisconsin.
Contrast the report’s summation of the issue in Wisconsin with the actual first statement from the Wisconsin Institute for Law and Liberty on its website for election integrity, which says, “It is almost certain that in Wisconsin’s 2020 election the number of votes that did not comply with existing legal requirements exceeded Joe Biden’s margin of victory.” The Supreme Court of Wisconsin has shown that claim isn’t even up for debate, and while that is not “voter fraud,” per se, many Americans would describe the efforts to enable illegal voting methods as “widespread election fraud.”
The Wisconsin Institute for Law and Liberty’s report was a particularly modest account. Other independent analysts and econometricians analyzing Wisconsin have found that Zuckerberg’s meddling had a far greater impact than they realized. Here’s what a team of academics wrote about the Center for Tech and Civic Life’s takeover of government election offices in Wisconsin’s biggest cities:
Without CTCL involvement in Wisconsin in 2020, Wisconsin would be a solidly red state. We estimate that CTCL’s investment in seven Wisconsin counties resulted in 65,222 votes for Biden that would not have occurred in CTCL’s absence. That’s more than three times as big as the final 20,800-vote margin between Biden and Trump in 2020.
Private funding of elections overwhelmingly went to Democrat areas of swing states, produced skewed results, and violated legal requirements prohibiting partisan effects to nonprofit work. The situation in Wisconsin was so bad that leftist activists funded by the Zuckerberg operation led to multiple resignations of local officials in protest.
The report barely mentions, and therefore fails to adequately deal with, Zuckerberg’s funding and what it paid for, merely mentioning that some legal challenges had cited it. This is despite its central role in the outcomes for multiple swing states, including Pennsylvania, Arizona, and Georgia.
The report does a poor job dealing with Georgia as well. In its opening paragraph on Georgia, the report’s authors write, “Georgia Secretary of State Brad Raffensperger, a conservative Republican, conducted a full manual recount of the five million ballots cast, confirming Biden’s victory. At Trump’s request, election officials then conducted a post-certification recount, which also confirmed Biden’s victory. Secretary Raffensperger, with the assistance of the Georgia Bureau of Investigation, evaluated and rejected numerous claims of fraud.”
There are multiple major problems with this characterization of Georgia. The report authors didn’t seem to understand, or failed to accurately convey, the situation with the Trump lawsuit filed there. To take just one example from that lawsuit, it alleged a serious problem with illegal voting. Shortly after the election, voting data expert Mark Davis noticed a problem of 40,000 votes cast by people who had registered to vote in a county different from the one they had claimed to move to. It was one of the dozens of categories mentioned in the Trump lawsuit, and in the intervening months, it has been confirmed that more illegal votes were cast in this manner than comprises the margin of victory for the race.
One could perform a recount a thousand times and not detect, much less deal with, that problem. A recount would simply recount the ballots, whether they were legal or not legal. As for the suggestion that Raffensperger took seriously, much less rejected, claims of illegal voting, the evidence does not support the claim. He fiercely fought the campaign’s efforts to determine the precise number of illegal votes during the time they needed the information for their lawsuit. After The Federalist reported on this issue last year, and a television station confirmed the existence of the problem, his office was cagey about whether they were going to investigate, much less do anything about it. His office also made excuses for the illegal voting, suggesting it was not a major concern for his office.
The issue isn’t even addressed in the report, and discussions of the lawsuit and how it was handled are completely inadequate and erroneous. The problem with the lawsuit — which did not allege fraud and which had many substantiated claims — was that it could not get a hearing before Jan. 6. The problems the campaign’s legal team had getting a hearing were Kafka-esque, and the report doesn’t seem to understand what the issues were, much less how they were handled.
Other major issues are neglected in the report. Because of the limited scope and lack of depth to the report, it doesn’t even acknowledge, much less give credit, to a 2022 Pennsylvania court decision ruling that all no-excuse mail-in voting in the commonwealth is unconstitutional. In its discussion of the Arizona audit, which found large and systematic problems in election administration, it quotes the response from the hostile Maricopa County Board of Supervisors as definitive. Likewise, it quotes news articles from the Associated Press, Washington Post, New York Times, and other left-wing media outlets as definitive responses to election concerns. This is laughably unserious.
Reports Like This Harm the Republic
When Luttig went to the one-sided Jan. 6 star chamber, he concluded his remarks by saying that Trump and his supporters were “a clear and present danger to American democracy” because of their ongoing concerns about election security.
The report repeatedly asserts that the reason why there is a lack of trust in elections is because of Trump and his supporters. In fact, one of the most important reasons to fight the coordinated campaign to weaken election integrity is that the lack of controls that make fraud easier to commit and more difficult to detect is responsible for the lack of trust in elections.
Following the contentious 2000 election, former President Jimmy Carter and Republican James Baker co-chaired the bipartisan Commission on Election Reform. Its 100-plus-page report was called “Building Confidence in U.S. Elections,” and it treated election integrity as vitally important to that goal.
Rather than mocking or dismissing concerns about election integrity as unimportant, the Carter Commission stressed the problems caused by bloated and inaccurate voter rolls, nonexistent or faulty voter-identification procedures, and unsupervised voting. It said these practices threaten elections and democracy, as do misconduct by partisan election officials, the use of inconsistent procedures in different precincts, and an overall lack of transparency. The report noted that mail-in balloting is associated with higher risk of fraud and could also undermine faith in elections.
Making sure that voting is fair is one of the most important issues in the country. That’s why it remains a top concern to Republican voters, even as Washington, D.C., rolls out every member of the establishment to try to force them to fall in line with weak and insecure voting provisions.
If they want to convince voters outside their bubble, they should try far harder than they did with this report.