I am not a lawyer, and I do not play one on TV. That may make me the idiot. But laws are supposed to be understandable so that we can follow them. And I have an attorney in the family. So here goes…
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. I won’t try to list them here, since the list seems to grow by the hour.
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 a fundamental definition. A valid vote is cast by an eligible, registered voter who casts a vote in the manner prescribed by law, including voting on time. That means that we can’t “count all the votes.” We have to “count all the VALID votes.” Pennsylvania will serve to illustrate the problems.
Most of us remember the hanging chads in Bush v. Gore (2000). Ultimately, two important things came out of that dispute. The Supreme Court ruled that there have to be firm standards to evaluate the validity of 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). As noted above, it’s essential to establish that a vote is:
- Cast by an eligible, properly registered voter
- Cast on time
- Cast on a proper ballot
We have video of a poll worker marking votes on a ballot. It is clear that she is not a legitimate voter. Her job is to count votes, not cast votes. Any ballot she marked fails all three tests above and should be rejected. This fraudulent ballot was then counted as if it was valid.
We know that various dead people have been shown to have voted. Out of state “voters” mailed in ballots. Computer “glitches” flipped Republican votes to Democrat in Michigan. Republican poll watchers were prevented from observing ballot counts. Signatures were stripped from ballots before poll watchers could verify them. Pennsylvania refused to segregate late votes from timely votes, requiring Justice Alito to order (for a second time) them to be segregated. The list goes on.
Pennsylvania law states clearly that the election ends at 8 PM on Election Day. Absentee ballots must arrive on time and require a postmark and a signature. Under 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”
No Judge, Governor, or other official has any right to modify the rule passed by the Pennsylvania legislature. Governor Tom Wolf couldn’t get the legislature to go along with his proposed election changes, so he went to court to get changes. That means any late ballot must be thrown out. Rather than bore you with the details in each state, let’s consider the possible outcomes.
Let us suppose that a state legislature recognizes the need to correct the wrong. It can follow the lead of the Florida legislature in 2000, when under the leadership of House Speaker Tom Feeney and Senate President John McKay, the legislature prepared to vote to determine the state’s electors as the Constitution envisions. If that happens, every state that made the difference will send electors for Trump, and the entire game will end. But if they don’t, welcome to Court.
First, Trump’s team must demonstrate to a Court’s satisfaction that there was fraud, and that it was material to the outcome of the election. A single dead person voting isn’t material. Thousands are. One late ballot isn’t material. In an election decided by thirty thousand votes, 140,000 is material since it’s far more than the margin of victory.
Assuming that the fraud is material, the question turns to the proper remedy. That answer will come from the Supreme Court. And, count on it, they won’t be inclined to declare a winner, even though they would have the power to do so. Stripping the ballots of signatures and postmarks is “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, and this is obstruction.
Neither of these is either civil or criminal, since this is an election, but the Court would ordinarily hold spoliation and obstruction against the offending party. Since Democrat-run election boards did this, their vote counts would be regarded as tainted. Going one step further, the failure to segregate late from timely ballots makes it impossible to remedy this taint. The simplest remedy would be to disallow all votes tallied by those offices and refer the final resolution to the state legislature.
On the other hand, the Court could declare that the election for the entire state is tainted, and disallow the state from voting in the Electoral College, since there is no proper way for the state’s electors to be determined. If this were to happen in enough states to prevent either candidate from reaching 270 votes, then the election would tip to the House of Representatives as the proper political body to resolve this election. But this would require the Court to make another determination.
Article II, Section 1, paragraph 3 states:
“The Person having the greatest Number of Votes shall be the President, if such a Number be a Majority of the Electors appointed…”
If the “number appointed” is deemed to be only those in uncontested states, then Joe Biden wins, because now a number less than 270 would be needed. If the “number appointed” is deemed to be 538, the complete number under normal circumstances, then the House of Representatives would need to decide. There, since each state gets one vote and 26 states are controlled by Republicans, Trump will win.
Obviously, the Supreme Court will be very aware of this conundrum and will want to avoid ruling in a way that decides the election. They can sidestep the issue by declaring that whatever fraud exists is not material. Biden wins. They can set aside votes in Philly, Pittsburgh, Detroit, and so on. Trump wins. They can declare the election so fraudulent that the House has to vote. Trump wins. Or they can send the contested states back to the state legislatures.
Only two of these remedies keep the Supreme Court somewhat out of politics. They can say the fraud is immaterial and we get Biden. Or they send it back to the states where, if Republicans have any spine, Trump will win. We can only hope.
Ted Noel MD posts on social media as DoctorTed and @vidzette.
COVID-19 may take down an independent news outlet
Nobody said running a media site would be easy. We could use some help keeping this site afloat.
Colleagues have called me the worst fundraiser ever. My skills are squarely rooted on the journalistic side of running a news outlet. Paying the bills has never been my forte, but we’ve survived. We have ads on the site that help, but since the site’s inception this has been a labor of love that otherwise doesn’t bring in the level of revenue necessary to justify it.
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Most “Conservative” News Outlets Are on the Big Tech Teat
Not long ago, conservative media was not beholden to anyone. Today, most sites are stuck on the Big Tech gravy train.
I’ll keep this short. The rise of Pandemic Panic Theater, massive voter fraud, and other “taboo” topics have neutered a majority of conservative news sites. You’ll notice they are very careful about what topics they tackle. Sure, they’ll attack Critical Race Theory, Antifa, and the Biden-Harris regime, but you won’t see them going after George Soros, Bill Gates, the World Economic Forum, or the Deep State, among others.
The reason is simple. They are beholden to Big Tech, and Big Tech doesn’t allow certain topics to be discussed or they’ll cut you off. Far too many conservative news outlets rely on Google, Facebook, and Twitter for the bulk of their traffic. They depend on big checks from Google ads to keep the sites running. I don’t necessarily hold it against them. We all do what we need to do to survive. I just wish more would do like we have, which is to cut out Big Tech altogether.
We don’t get Google checks. We don’t have Facebook or Twitter buttons on our stories. We don’t have a YouTube Channel (banned), an Instagram profile (never made one), or a TikTok (no thanks, CCP). We’re not perfect, but we’re doing everything we can to not owe anything to anyone… other than our readers. We owe YOU the truth. We owe YOU the facts that others won’t reveal about topics that others won’t tackle. And we owe America, this great land that allows us to take hold of these opportunities.
Like I said, I don’t hold other conservative sites under too much scrutiny over their choices. It’s easy for people to point fingers when we’re not the ones paying their bills or supporting their families. I just wish there were more who would make the bold move. Today, only a handful of other major conservative news outlets have broken free from the Big Tech teat. Of course, we need help.
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