Was the election stolen?
Authors' note: We drafted this opinion piece two days ago, with the concluding sentence, "Those who seek to usurp legitimate court decisions sow the wind, and we fear that they will reap the whirlwind (Hosea 8:7)." We did not expect the whirlwind to wreak havoc on the American republic this quickly.
The United States is being torn apart as many citizens question the result of the recent presidential election. A large percentage of Americans believe the election was stolen. Armies of lawyers representing each side of the political divide have brought over 50 cases in courts across the land challenging the election results. Claims and counter-claims have been vicious. Some have called for the professional discipline of lawyers who aggressively pursued President Trump’s claims. Respect for the rule of law and the viability of the United States government is at risk. Christians wonder what position they should take on such divisive issues.
We write as lawyers who have had a great deal of experience with the courts (having represented hundreds of Christian clients, tried hundreds of cases, and taught thousands of law students). We have seen the court system up close at every level and studied it. We write not to argue over who would make the better president, but to argue that resolution of these claims in the courts should give confidence to citizens that the election results are reliable and valid.
The role of lawyers is often misunderstood. Our fellow church members ask how lawyers can represent guilty clients. Our argument is that aggressive advocacy of all parties in a case is essential to the legal system. First, effective representation on both sides is likely to yield wise results. Judges and juries are most likely to reach correct conclusions if they have heard the best arguments and examined the strongest evidence put forth by both sides. As Proverbs 18:7 says, “The one who states his case first seems right, until the other comes and examines him.” Second, the parties and the public are most likely to accept with confidence the results in a case when they know that each side has had its best arguments put forward, heard, and considered. If lawyers had not contested the election results in the current election cases, citizens would have reason to wonder whether those results were reliable.
We believe that the best place to resolve a difficult issue of this nature is in the American court system. The legal system has all sorts of legal and factual requirements that must be met in order to ensure that outcomes are reliable, including that the party bringing a claim has “standing” – a real and substantial personal interest in the outcome.
We applaud the aggressive advocacy shown by both sides in these cases. The American legal system works because lawyers on each side are aggressive advocates. In our system, both sides present the best evidence and arguments for their side. When there are good lawyers and adequate resources on both sides, we can be confident in the results. We are deeply troubled that some have condemned the lawyers who brought claims on behalf of President Trump. There is a long and lofty tradition of lawyers in the United States representing unpopular clients, from those lawyers (including the future President John Adams) who represented the British soldiers who killed colonists in the Boston Massacre to those lawyers who represented the Islamic terrorists imprisoned at Gitmo. If even the most reprehensible deserve vigorous legal representation, the sitting president does as well. Such lawyers deserve our thanks. The system would not work well without them.
In the election cases, there have been strong lawyers on each side. Confidence in the results in these cases is justified because so many courts have faced the same issues and reached the same conclusions. Over 50 courts have decided against the challenges brought by President Trump.
Some argue that judges may have been influenced by political biases. We generally have confidence that judges can set aside their political biases and resolve cases based on the facts and the law, but confidence in these election cases is particularly justified because there have been numerous decisions against President Trump by judges who have come from both political parties, including President Trump’s three appointees to the Supreme Court.
There were also claims of election error in the 2000 election, subject of the famous Bush v. Gore “hanging chad” litigation. The legal system did its job then as it is doing it now. The case was aggressively litigated and went all the way to the Supreme Court. That case was decided for the Republican candidate. Though some Democrats continued to claim that the election was “stolen,” every subsequent recount of the ballots has shown the reliability of the election results. Now the shoe is on the other foot and some Republicans are claiming error. In both cases, there is good reason to trust the legal system.
When we see politicians and commentators claiming election fraud, our response is "Take it to the courts. Show them the evidence. Have cases brought by the proper parties. If there is good evidence, let it be evaluated with sworn testimony, cross-examination, and counter evidence. Courts are there to resolve such cases." For an example of the painstaking work of courts in the current litigation, see:
Here and for a helpful contrast between that court opinion and opinions superficially expressed before a congressional committee, see here.
At least so far, no one has been able to present convincing evidence of sufficient voter fraud to overturn the results of the 2020 election in any state. It is time for those who oppose the policies of Joe Biden (as we do on many issues) to accept the results of the election and to begin the hard work of countering those policies with reasoned argument — to seek the good of this earthly city (Jer. 29:7). Those who seek to usurp legitimate court decisions sow the wind, and we fear that they will reap the whirlwind (Hosea 8:7).
Robert F. Cochran, Jr. is the Louis D. Brandeis Professor of Law Emeritus at Pepperdine University. He is the co-author of co-editor of 10 books, including Law and the Bible and Lawyers, Clients, and Moral Responsibility.
R. Craig Wood is a partner in the McGuireWoods law firm. He is an adjunct professor of law and a litigation attorney who practices in state and federal courts, representing churches, non-profit organizations and Christian and secular universities and schools. The views expressed in this article do not necessarily represent the views of McGuireWoods LLP.
