*** Authors Note: My readership has written to me several times in recent weeks to ask me to explain what is going on with the election. In response to these requests- here is my shortest, most comprehensive explanation***
PREFACE: I have curated the legal complaints in this article to just those that have the potential to be proven in a court of law. Certainly, the Trump Campaign has raised more objections than just these. For example, the campaign has alleged involvement between Dominion and foreign powers as well as the physical assault of poll monitors by state employees. These allegations may be persuasive to some in the court of public opinion, but their falsity or truth would have no impact in a court of law- or on any legal body’s adjudication of the election. For these reasons, this column will only include the most substantial legal objections.
My most previous column opened on an ominous note. Implicitly stated (although not expressly predicted), the likeliness for some type of dispute over the election was extremely high. Only twice before had voter turnout been so extraordinary (you can read about that here: https://tremg.info/2020/11/03/election-night-what-to-watch-for/ ) and each time the election was disputed. As it turned out- this election was no different.
So What Is Going On?
- Problem #1: Rumour and counter-rumour have scrambled the public consciousness on the election. 538, The AP, CNN, Fox, Real Clear Politics and other outlets all have diverging results on who won what state or if a state has a clear winner at all.
- Problem #2: State election boards may refuse to certify. (Certification just means that they believe their own election results to be true)
- Problem #3: The Trump Campaign has brought 3 lawsuits (although more are being considered) in Michigan, Pennsylvania and Wisconsin seeking judicial reviews of some ballots.
- Problem 4#: Much of this election is expected to be settled in the court or other less familiar means.
- Problem 5#: There is not much time between now and January 20th, the day of the inauguration of incoming presidents. No matter what direction this election takes, January 20th will be a good date to look for. On January 20th, one of three things will happen:
- Joe Biden is sworn in as President.
- Donald Trump continues as President.
- The 12th Amendment is invoked (more on this later).
What to Watch?
- Trump Campaign’s legal fortunes: So far the Trump campaign has had a symbolic legal victory in Pennsylvania. Although it was not filed by the President’s campaign and the case was small and mostly procedural- R.N.C v. Broockvar demonstrated a willingness to listen on behalf of the Pennsylvanian courts. The case dealt with segregating mail-in-ballots received after 8 P.M. on election day so that a court can later hear arguments on their constitutionality.
- The courts’ issue injunctions: An injunction is like a ‘timeout’ from the court. Courts order these (usually) to make someone stop doing something. If the courts order injunctions against the counting (or recounting) of certain types of ballots, then one can be certain that the evidence is (at least) pretty persuasive that the Trump team might be right about impropriety. Injunctions are not permanent. Injunctions are usually just a type of temporary ruling until a full case can be heard. Injunctions are something to watch because they show how interested a court is in an issue.
Biden Lead: 69,140 Votes
Votes In Controversy: 683, 770
Amount of Mail-in-Ballots: 2-3 Million
- Trump Campaigns Argument? In the court of public opinion, the campaign is using a report from Former President Carter on the dangers of voter fraud via mail- in-ballots. Additionally, they are raising the concerns of partisan inspectors who are required by law to inspect ballots and were allegedly unlawfully expelled from their inspection posts during ballot counting. In the court of law, the Trump campaign’s argument is very different. The argument hinges on 3 main issues:
- (1) The state legislature is the final arbiter of what kind of votes are constitutional within a state. Because of the sudden need for mail-in-ballots in Pennsylvania (due to the onset of coronavirus)- the state legislature in Pennsylvania never authorized the use of mail-in-ballots. The campaign will argue the use of these ballots was unconstitutional under Pennsylvania law because the ballots were unauthorized.
- (2) Secretary Broockvar (Secretary of State of Pennsylvania) issued guidance to polling precincts that votes can continue to be counted for up to 3 days after the election if the votes were 1) Mail-in-ballots and 2) Postmarked by election day. Generally speaking, the United States Constitution (which supersedes all state laws and guidances) forbids ballot counting on any other day other than election day. (This odd requirement is what leads to mounds of early voting and absentee ballots sitting in piles for weeks until they are finally counted on election day in many states). The Trump team will argue that (even in light of coronavirus restrictions) the continued counting of ballots was unconstitutional.
- (3) The Trump campaigned has filed a 14th Amendment challenge to “ballot curing”. ‘Ballot curing’ (in normal-people talk) just means ‘you screwed up something on your mail-in ballot, so the local precinct can call you up- let you know you screwed something up- and you can go down to the local precinct and fix it’. The Trump team’s argument is that this policy of ‘ballot curing’ was not uniformly implemented across the state. In some places, you were allowed to ‘cure’ your ballot, in other places you were not. The campaign will argue that this violated the equal protection clause of the 14th amendment because it created two standards of voting for living people in the same state.
- Note: There are arguments being raised beyond these in Pennsylvania, however most the arguments are being raised by parties outside the campaign.
- (1) The first two legal issues will probably be handled on summary judgement and as a matter of law. There will not likely need to an extended discovery period or entrance of much evidence. This is common in cases where there is little (to no) dispute over material facts.
- (3) The third legal issue may involve witness testimony. On this issue, the Trump campaign (via Rudy Guiliani) has gotten one of their witnesses- a Mr. Henry (first name withheld)- to swear under oath and penalty of perjury to provide testimony that he was denied the ability to cure his ballot. Mr. Henry’s testimony is relevant because Mr. Henry is alleged to be a Pennsylvania resident- therefore he has standing to bring suit in Pennsylvania.
Biden Lead: 155,629
Votes in controversy: Unknown (potentially 850k+ according to Constantino)
- Trump Campaigns Argument: The Michigan front of the Trump Campaign’s legal offensive will focus heavily on eye witness and expert testimony. The gravamen of the Trump Team’s lawsuit centres on 3 key issues:
- (1) Illegal ballot tampering: These are among the most explosive allegations made by the Trump Campaign- if true and accepted by the court, the allegations could leave the courts (or the election boards) to throw out hundreds of thousands of votes from entire voting precincts. (Explanation: The entirety of the votes from these precincts would likely have to be thrown out because the tampered ballots would be indistinguishable from the untampered votes once they were aggregated into their respective bins).
- (2) Glitches in the Dominion voting machines: Dominion voting machines (and their software Smartmatic) have been called into question. Prior to the 2020 election, Texas attorney general Ken Paxton refused to allow Dominion voting machines to be used in Texas because of the machines technological insecurity. Many of the issues raised by General Paxton surfaced in the Michigan Dominion voting machines. (You can read about that here https://thebl.com/us-news/texas-tested-dominion-voting-machines-and-found-them-untrustworthy-confirming-president-trumps-suspicions.html)
Among the issues with Dominion:
- A well-publicized ‘glitch’ in Dominion’s voting machines caused Antrim county to flip from Trump to Biden by about 3,000 votes until the glitch was caught and corrected. It is currently unknown whether this glitch occurred in other counties.
- Allegedly, Dominion machines have technological back doors that allow administrators to alter votes during and after tabulation.
*** Note: Additional information on Dominion systems issues can be found here from PBS: https://twitter.com/two_legit_2quit/status/1328321640174850055?s=21
(3) Constantino v. City of Detroit: This case alleges illegal voter coaching.
The initial legal complaint is attached here, 60-100k votes are in controversy: https://www.greatlakesjc.org/wp-content/uploads/Complaint-Costantino-FINAL-With-Exhibits.pdf
- (1) Jessie Jacob affidavit: Ms. Jacob is one of a few Trump Campaign witnesses to allow themselves to have their full identity released to the press. Ms. Jacob is a self-proclaimed Democrat. Ms. Jacob is a state employee and she alleges that during her election training this September, she was trained to alter the postmark on ballots to make ballots that were once invalid become valid. She alleges that she (and other state employees) in Detroit personally viewed (and aided in) the alteration of countless ballots.
- (B) To the effect of subpoint B, independent statisticians and political science experts have attested publicly that the sudden spike(s) in vote count appears to be indicative of a machine who has artificially had its voter tallies altered (you can watch some of their explanations in long-form here): https://parler.com/post/39815521491143aa851782d92e3b8471). HOWEVER, these statisticians are not sworn witnesses. The only evidence regarding artificial vote alteration that has been supplied to the public is from campaign attorney Sydney Powell via a partially redacted affidavit she claims she supplied to a Michigan court. (Part of which you can read here: https://archive.vn/Wp2qQ )
Biden lead: 20,012
Votes in controversy: 60,000 (Milwaukee County)
- 40,000 (Madison)
Note: Wisconsin never participated in mail-in-ballots
Trump Campaign Argument:
- In various precincts (including Milwaukee), legally required poll monitors were shut out of polling stations.
- Absentee Ballot Solicitation: Under Wisconsin’s constitution it is illegal to solicit absentee balloting. The Wisconsin constitution does not refer to absentee ballots as a right. (Wiscon’s constitution curiously refers to absentee ballots as a privilege). Absentee Ballots are only valid if the voter requests the ballot prior to the election. Under Wisconsin law, a ballot is unconstitutional if it is sent to a voter without a prior request from the voter. The campaign alleges between just Milwaukee County and Madison alone there are between 60-100k unconstitutional absentee ballots that have been cast.
- (1) The Trump Campaign has communicated that there are at least 3 affidavits allegedly attesting to the electoral malpractice involving the poll watchers.
- (2) In Rey Hayden (1981) is Wisconsin case that affirms absentee ballots can not be solicited.
Biden Lead: 12,284
Votes in controversy: 262,000+
Note: The Trump campaign has condemned the first recount in Georgia, however, there are (currently) no active lawsuits directly from the campaign filed in Georgia.
- This morning, the Trump Campaign exercised a legal entitlement to a recount in Georgia. (Recounts are permitted under Georgia law when the results are within ½ of 1 percentage point).
- While the first recount in Georgia did discover a few thousand more votes for Trump, the campaign has condemned the recount because the envelopes of the mail-in-ballots were not preserved. Because the outsides of the envelopes were not preserved, the campaign argues that it makes the absentee ballots impossible to authenticate. The campaign’s lead counsel condemned the recount because the campaign claimed it would be the recounting of votes that are still un-authenticatable.
- The Governor of Georgia, Brian Kemp, signalled on Friday that he would not sign-off on the election’s certification until an audit of the absentee ballots and the ballot authentication process was completed.
WHAT HAPPENS NOW?
If the election is not settled through normal processes, there are 3 scenarios that could soon unfold. While these are NOT the only 3 scenarios that could play out in coming days, these are the 3 you should know about.
1: The Courts Step In
Immediately after the election, there was a new entry on the Supreme Court blog. The blog post intimated that the Supreme Court would NOT want to dirty their hands by stepping in to decide the presidential election. Implicitly, the blog signalled that the Supreme Court would defer (at least at first) to State Supreme Courts to handle the issues raised by the Trump Campaign (and others). This would allow for each state to handle their own legal issues while shielding the legitimacy of the Court. In this vein, no one could make the argument that the Supreme Court is a partisan body acting to overturn the elections in one party’s favour. Additionally, this would allow the Court to delegate all the issues of fact to the lower courts. If the Supreme Court handles the legal issues on appeal AFTER a state supreme court takes the first whack- then the United States Supreme Court does not have to bog itself down in making determinations of fact (a task usually saved for lower courts). The issues of fact are pre-determined in the case and the United States Supreme Court would only need to rule on technical matters of the law.
So who controls the state’s Supreme Courts? The partisan composition of the state supreme courts are as follows:
Michigan Supreme Court: 4-3 (Republican’s Favour)
Wisconsin: 4-3 (Republican’s Favour)
Pennsylvania: 5-2 (Democrat’s Favour)
Georgia: 6-1 (6 Republicans, 1 NonPartisan)
The easiest way to handle the election would be for the United States Supreme Court to step in before any other court. Because the United States Supreme Court’s decisions are binding on every court in the entire country- the Supreme Court is a one-stop-shop when it comes to legal issues. Everything could be handled at the United States Supreme Court at one time.
However, this is not likely. The Supreme Court has signalled that IF they step in at all- it will most likely be on an appellate basis to handle a few technical legal issues referred to them from the state courts.
2: The State’s Won’t (or Can’t) Certify
- State’s are required to resolve their election disputes by December 8th or they can not dispatch delegates to the Electoral College on December 14.
- DECEMBER 14: Electoral College convenes –
If individual state election boards or secretaries of state do not certify the election results by December 8th- we have a problem.
If critical states like Michigan, Pennsylvania, Wisconsin and Georgia do not send their delegates because they did not certify election results, it is possible that neither candidate will receive the 270 electoral votes necessary for the electoral college to announce (to congress) who the President is.
Is this likely?
There is a serious suspicion that Michigan may not certify. Wayne County (the county possessing Detroit) had a blowout over certification. The Democrats voted yes, the Republicans voted no. Later, under scrutiny, the Republicans reversed and voted yes. On Thursday, the Republicans announced they seek to rescind their yes vote. The dynamics of the legality of recension are not clear, and amidst this chaos the entire state election board will vote on certification. Currently, both Republicans and Democrats on the state election board have not signalled whether they intend to certify.
Is there a way to prevent this?
Yes! Thankfully the U.S. Constitution makes the state legislatures the final arbiters of the delegates the state sends to the electoral college. This means that if the election boards or the secretaries of state do not (or can not) certify the election results because of irregularities or legal challenges, the state legislature can override all the confusion. The state legislatures can step-in and (in effect) decide who won the election within their state. The state legislature would assign their state’s delegates to vote for a certain candidate once they arrive at the electoral college convention on December 14.
3: What if the state legislatures don’t step in?
If the state legislatures do not step-in and the election results are not certified- the United States Constitution has other methods for settling the election. When the electoral college fails, the Constitution assigns congress as the final electoral backstop for the presidency.
Pursuant to the 12th Amendment, the congressional back stop would work like this:
- December 23: The Electoral College dispatches the election results to the Vice President.
- January 6: The Electoral College notifies congress that they can not determine who is President.
- January 7- May 4: The House and Senate are charged by the 12th Amendment to elect the President and Vice President. Congress has until May 4th to make this determination. During this time the current President (Trump) continues as President and if no determination can be made- on May 4th the Vice President (Mike Pence) will assume the role of President in an acting capacity until congress settles who is President.
The House elects the President. The Senate elects the Vice President. However, the President is not chosen by the whole body of the House. While the Senate elects the Vice President through a simply up or down majority vote among the 100 U.S. Senators, the House votes En Bloc. Each state delegation in the House is reduced to just one vote (50 total). 26 votes are required to pick the President. Whichever candidate- beit Trump or Biden- that receives 26 votes becomes President. This is called a “contingent election”. We have had three Presidents elected through this method.
Curiously, it could be possible for Vice President Pence to remain Vice President while Joe Biden becomes the new President. Even more curiously, it could be possible- in the case of congressional deadlock- for Vice President Pence to ascend (albeit in an acting capacity) to the Presidency indefinitely if the House can not pick a President… and wouldn’t that just be apt for 2020.
Why do I keep hearing about way more than 3 lawsuits?
- There are way more than 3 lawsuits about the 2020 election working their way through the courts. 3 is the number of lawsuits filed directly by the Trump Campaign at the time of this writing (Saturday, November 21).
- Example: Michigan’s Attorney General has brought a criminal proceeding against a man who voted on behalf of his daughter. Link: https://www.detroitnews.com/story/news/politics/2020/11/14/trump-supporters-dispute-michigan-vote-count-stop-steal-rally/6282744002/
- Example: Tribal members on the Navajo Reservation in Arizona have sued, alleging the post office was not accessible to them to send mail-in-ballots. Link:
****Note: Neither of these lawsuits is directly related to the Trump Campaign but both of them raise legal issues that could be highly impactful to the election’s results. This is likely why there is so much buzz about lawsuits- it appears everyone and their brother has filed one.
What Lawsuits have been settled so far?
- Two early cases that were handled on an emergency basis and went right to the Supreme Court have been decided so far, both of which you can read about here. Link:
Case Number 1: PENNSYLVANIA: Emergency Appeal
The Pennsylvania case was met by a split court. Therefore, no official ruling was made. Usually, in cases like this, the Court calls the case back up for further hearings at a later date. Although nothing substantive came from this case- this case is related to the aforementioned issue of segregating mail-in-ballots received in Pennsylvania after 8 PM on November 3rd (election day).
Case #2: WISCONSIN: Democratic National Committee v. Wisconsin State Legislature
The Supreme Court seemed ready to apply Wisconsin’s constitution. The Court found 23,000 absentee ballots to be unconstitutional in a 5-3 decision written by Justice Barrett. The court found absentee ballots received in Wisconsin after election day to be unconstitutional under federal law. (This case was initially brought by the DNC).
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