The hyper focus on "election fraud" is misguided since fraud is a particular legal construct that is hard to prove without discovery. Fraud requires a who, what, when, where, why type of pleading.
Bit of what we do have an abundance is criminal activity in violation of state election law. We have that without any dispute. Why isn't that criminal activity enough for the courts to act? And if not now, will it ever be?
Now for Turley's take.
Bit of what we do have an abundance is criminal activity in violation of state election law. We have that without any dispute. Why isn't that criminal activity enough for the courts to act? And if not now, will it ever be?
Quote:
Violations of the election code, however, are a different matter, and unfortunately, sometimes the public views election officials' bending of the rules as a harmless ignoring of technicalities. As the attorney in the Montgomery County Board of Elections case noted after "conceding" he was not alleging fraud: "The election code is technical."
That makes technical violations constitutionally significant because Article II, Section 1, Clause 2 grants state legislatures the ultimate authority to appoint the electors who choose the president: "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 Bush v. Gore, former Supreme Court Justice William Rehnquist stressed the significance of this constitutional provision in a concurrence joined by Justice Clarence Thomas and former Justice Antonin Scalia. As Rehnquist wrote, that clause "convey(s) the broadest power of determination" and "leaves it to the legislature exclusively to define the method" of appointment of electors. Furthermore, "a significant departure from the legislative scheme for appointing Presidential electors presents a federal constitutional question."
The three concurring justices in Bush v. Gore concluded that the Florida Supreme Court's order directing election officials to count improperly marked ballots was a "significant departure from the legislative scheme," and "in a Presidential election the clearly expressed intent of the legislature must prevail." Accordingly, those justices would have declared the Florida recount unconstitutional under Article 2, Section 1, Clause 2.
Quote:
So, if the legislative branch mandates voter signatures, or verification of signatures, or internal secrecy sleeves, or counting only in the presences of poll-watchers from each party, it is no answer to say it is a technicality and not fraud at issue.
Quote:
Allowing state officials to fudge on the mandates of the election code raises a second significant constitutional issue, this one under the Equal Protection Clause, which served as the basis for the majority opinion in Bush v. Gore. The majority in Bush v. Gore held that the varying standards violated the Equal Protection Clause of the Constitution, reasoning: "The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another."
Clear equal protection violation.Quote:
When state officials ignore the technicalities of the election code, however, it virtually guarantees voters will be denied equal treatment. The proof is in Pennsylvania. There, for instance, even though the election code prohibited inspecting ballots before Election Day, some county officials those in larger counties with access to mail-sorting machines that could weigh ballots weighed the ballots to determine if the voter failed to include the required inner secrecy sleeve.
Then those officials, again contrary to the election code, provided information to representatives of the Democratic Party so they could identify the voters whose ballots would be canceled. Voters whose election officials abided by the technicalities of the election code, however, did not receive that notice nor the opportunity to "cure" their ballot.
https://thefederalist.com/2020/11/13/partisans-cheating-by-ignoring-election-law-is-a-problem-as-big-as-vote-fraud/Quote:
The majority in Bush v. Gore recognized the rightful place of election officials to interpret and apply the rules established by the legislative branch. This difference provides some leeway to states, which through interpretative guidance tweak the technicalities of the election code. But as in other areas of the law, such interpretations must be reasonable and must not violate the clearly expressed intent of the legislature.
The Supreme Court will likely decide where that line will be drawn in the coming days.
Now for Turley's take.
Quote:
Nevada was one of the states that I identified before the election as one of three states that I was watching the most closely for election challenges. However, the problems raised in Nevada could raise concerns with shared elements to various states from Michigan to Pennsylvania. The reliance on questionable voter lists and the lack of authentication systems were raised months ago. The legal problem is not simply that such systems may allow for large numbers of ineligible votes but that they would not allow sufficient review of ballots to resolve such questions.
The criminal referral is substantially less than the "10,000" referenced earlier but the underlying allegation is still important. The early concern for many of us was that the system established in Clark County would be difficult to review for violations due to how the record was being preserved.
I fully agree. The can't hide behind incompetence when breaking the law. Setting up or allowing an election system to not protect the legal voters from having their vote diluted by illegal voters is in and of itself and equal protection violation. So let's flesh that out some more.Quote:
I have repeatedly stated that we must not make assumptions on either side. My concern is that it is not clear how a court could review these ballots in Clark County if it agrees that there appears to be systemic problems. If the court believes that thousands votes illegally, that lack of a record could prove the undoing of the state officials. At some point, the burden can shift and courts demand proof that a problem was not systemic.
LINKQuote:
If they cannot (show that the problem was not systemic), the question will be raised whether the same vulnerability existed in other states like Pennsylvania, Michigan, or Georgia. A court could be presented with a decision of when the unknowable becomes the unacceptable. If the court believes that thousands of unlawful votes were cases and the ultimate number impossible to confirm, the only certain way to address a systemic failure would be a special election a prospect that few judges would relish and even fewer would seriously consider.
