What the Layperson Can Make of Election Law

Election law is neither criminal nor civil, making it neither fish nor fowl, even though many of the shenanigans in this election have been truly foul.  Examples include Las Vegas letter-carriers supplying ballots to fraudsters, Detroit and Philadelphia refusing to allow poll-watchers, Milwaukee precincts with more Presidential votes than registered voters, and on and on and on...  Many others will litigate these issues in what remains of the free press.  I'll leave that task to them.  Here I will try to distill what can be known about the law into a tasty drink you can hopefully appreciate.

There aren't a lot of Court rulings to guide us about what to expect as legal remedies for election fraud.  This means that the best I can do is outline the issues.  The foremost is that an eligible, registered voter casts a valid vote in the manner prescribed by law, including voting on time.

Most of us remember the hanging chads in Bush v. Gore.  Ultimately, two important things came out of that dispute.  The Supreme Court ruled that there have to be firm standards to evaluate votes.  Subjective rules don't work.  This was rooted in the 14th Amendment Equal Protection clause, which gave us the "One Man, One Vote" rule in Reynolds v. Sims (1964).

Perhaps more important was the resolve of Florida House speaker Tom Feeney and Senate president John McKay, who called a special session to declare a winner.  They were working under a fundamental principle laid down Article II, section 1 of the Constitution.

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress[.]

In short, the Legislature of each state is the sole authority determining the outcome of the presidential election in that state.  Let that sink in.  The governor, secretary of state, and state Supreme Court have no say.  So what happened in Pennsylvania?

Pennsylvania law states clearly that the election ends at 8 P.M. on Election Day.  Absentee ballots must arrive on time and require a postmark and a signature.  Democrat governor Tom Wolf couldn't reach an agreement with the Legislature on changes to the law.  This led to the Democrat secretary of the commonwealth suing to allow an extension of time to receive ballots.  Even though the Constitution clearly grants plenary authority to the Legislature, the Pennsylvania Court unlawfully asserted its own "plenary authority" and granted the extension.  The judges further reversed the burden of proof of validity from the statute.

The very fact that the Court ruled at all is an affront to the U.S. Constitution and to the Legislature.  The Court should have simply said it doesn't have the authority to hear the case.  Instead, a group of leftist judges ruled contrary to law. This, plus the multiple issues of apparent fraud you'll see below, makes it imperative that the Pennsylvania Legislature follow the Florida example and declare President Trump the winner.  And while we are at it, Georgia, North Carolina, Wisconsin, and Arizona are in exactly the same situation.  They all have Republican majorities in both houses of their legislatures and have the ability to meet on their own initiative, vote, and declare Trump the winner.  They will have to face headwinds from the mainstream press, who will scream about every vote counting and so on.

Assuming that these legislatures will simply roll over, the election will find its way to the courts, and ultimately to the Supreme Court.  The one thing that is certain is that SCOTUS won't be inclined to do is declare a winner.  But the justices will be inclined to declare a remedy that matches the misdeeds before them.

The evidence of fraud looks generally like this (partial list):

  • Extended voting beyond legal limits (PA)
  • Failure to segregate late versus timely ballots (PA)
  • Failure to check identifying marks on ballots (PA, GA, MI, NV)
  • Refusal to allow Republican election observers (most)
  • Blocking windows to prevent observation (Detroit)
  • 4 A.M. dumps of 100% Biden votes (WI 65K, MI 138,499)
  • Large number of Biden ballots with only president vote compared to Trump ballots
  • Voting wards with more votes than voters (WI)

When only Republican observers are kept away, this is prima facie evidence of criminal intent by Democrats.  It is parallel to obstruction of justice, but again, election law is different.  A court is allowed to use this sort of action against the offending party.

Failure to keep late ballots segregated from timely ballots falls under "spoliation of evidence."  This odd word literally means "plundering" and applies to "intentional, reckless, or negligent withholding, hiding, altering, fabricating, or destroying of evidence relevant to a legal proceeding."  The evidence here is a postmark and signature on an envelope with a matching ballot inside.  If a ballot gets separated from the signed, dated envelope, this evidence has been spoliated.  When no one is allowed to observe, the amount of spoliation can't be identified.

A single ballot "oops" is not a big deal, but when many are spoliated, the court should hold it against the party that did the spoliating.  In this case, Democrats in Philadelphia were the ones doing it, and the vote pool there is so tainted that it can't be corrected.  Is the proper answer to throw out all the votes tallied by that center?  Is it to say that the entire vote in Pennsylvania is so contaminated that no electoral votes from PA will be allowed?  Or is the proper remedy to send it to the state Legislature?

Then we have the vote "dumps."  Ballots are not segregated by candidate.  So if 65,000 ballots with Biden selected arrive at once with zero Trump votes, the odds are 265,000:1 against this being real.  Get back to me next year when you're done counting the digits.  Michigan's 138,499 will take you a bit longer.

These are just some of the statistical impossibilities that are strong evidence of tampering.  With this happening in multiple states, the inference of fraud is strong.  What is the remedy?  Ideally, the state legislatures will act to correct the obvious corruption of the election.  But Republicans are generally not so brave.  Can you spell "spineless"?

Lacking the will to act, legislatures will probably stand idly by while legal challenges find their way to the Supreme Court.  There the evidence of fraud and cover-up will be substantial.  That drops all the challenges in nine laps.  Do they wash their hands, as Chief Justice Roberts did earlier with Pennsylvania?  Do they identify the fraud as material?

If election fraud is found to be material, now we have to ask what the Court may do.  My best guess is that SCOTUS will decline to declare a winner in any state.  Instead, they'll say the vote in the relevant states is so contaminated that those states cannot send electors to vote absent action by the several legislatures.  Further, if there are not 270 electors who vote for a single candidate, the election goes to the House.  In the House, the Constitution's one-vote-per-state rule will re-elect President Trump.

Can I be sure?  No.  But I can hope.

Ted Noel, M.D. is not a lawyer and does not play one on TV.  That may make him the idiot.  He posts on social media as DoctorTed and @vidzette.

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