Tag Archives: US Election

Lawless

The American Presidential election has fully entered its litigation phase with Trump aligned and non-partisan lawyers filing suit at the state level, gathering evidence of improper procedures and outright ballot box stuffing (physical and electronic) while various Democrat supporters, some establishment Republicans and the entire mainstream media maintain there is no evidence of “any” or “widespread” or “fraud at a scale which would change the outcome. There is all sorts of evidence suggesting that ballots, ballot envelopes and even voting machines are being shredded. Attempts to conduct audits of absentee ballots or mail in ballots or military ballots are being stymied. And so on

All of which is pretty normal course for an American election. American elections are administered under state election laws and those laws reflect the various constitutions of the states. It comes as no surprise that in some cities in some states there are attempts to count ballots which may not have been properly cast. Nor is it surprising that advantage was taken of states which have not tended their voters lists very carefully. These an many other irregularities are, rightly, the subject of litigation. So are broader claims of systemic electronic fraud effecting entire states. All of these claims need to be heard and adjudicated.

If everything works according to plan then the litigation will be settled in the next week or so, although there are no magic dates here as the Supreme Court ruled on Bush v. Gore on December 12, the safe harbour date for the return of electors due to meet on December 18. The dates this year are slightly different but, ion extraordinary circumstances even the meeting of electors date could be pushed.

The outcome of the various cases being pursued is impossible to predict at this point. (Although procedural dodges like the finding of laches by Pennsylvania’s Supreme Court to dismiss a challenge which it had previously ruled could not be brought until after an election where the plaintiff suffered harm is the sort of cheesy legal dodge which would be easy for the Supreme Court of the United States to overturn.) The key thing is that the litigation needs to be heard and decided on its merits.

The problem is that if the Democrats win – in the sense that the various certifications (often by ostensibly Republican state executives) are allowed to stand without further examination by the Republican/Trump/non-partisan parties, the claims of electoral fraud will not be extinguished. Conversely, if the Trump side wins the question of remedy is going to be huge. None of this is cut and dried and there is not a lot of precedent either way.

Worse, in many states, ballots which were subject to challenge have now been intermingled with perfectly legitimate ballots. Almost any order the Supreme Court might make would almost certainly remove at least some valid ballots as by catch. All of which the Supreme Court is aware of and will hear from the parties.

The worst possible outcome for our American friends would be for the Supreme Court to find significant fraud in several states but to decline to exclude ballots because it could not ascertain the fraudulent ones. At that point reasonable people could and would argue that the electoral system in the United States had become lawless. Simply a jungle in which who ever controlled the counting rooms would determine the outcome. (Some would argue that this has been the case in several American cities for decades.)

A better outcome would be for the Court to examine the individual claims of fraud, starting with the least controversial such as the dead and non-resident voting and working through a process to exclude illegal ballots based on no broad exclusions but rather a set of relatively straight forward cases. The court could do this in states which are very close and which would change the election outcome.

However, the Court could also come to the conclusion that, in aggregate the improprieties in a given state are so significant that the outcome in that state is a nullity. That the attempt to incrementally cure illegal ballots is impossible and that that state’s election for the Presidency is void. And then what?

One route would be to put the Presidential election into the House of Representatives where the vote would be by state delegation. However, that would have negative consequences for the many states whose elections were, if not perfect, not entirely crooked.

Another alternative, and one which I think would be seen as both legal and fair, would be to have a Court supervised “redo” election in the states where the evidence of fraud and impropriety was the strongest. One day, in person (with a very narrow absentee exception), ballots produced with only the two parties on them, ID required to get ballot and the purple ink to prevent double voting. Voting from 8-8, supervised hand count of the ballots which begins at 8:01 and continues until all the ballots have been counted. Assign a Justice to oversee each state in which there is a special election. Have US Marshals maintaining order and chain of custody at each polling place. If there are not enough Marshals then use other federal government resources.

The point of the exercise is for there to be full and fair elections in states where there is evidence of fraud and impropriety. Whether Trump or Biden wins is immaterial, the key thing is that the winner will be seen as fully legitimate.

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