Happy Monday after Thanksgiving, FRians. Hope you all enjoyed it. This Monday’s post is by Stephen, per Mrs. Pinky’s request. Enjoy!
When the recent slate of lawsuits came out regarding the resolution of the recent political election, frequent contributor Mrs. Pinky asked me if I was interested in reading the complaint filed by Sidney Powell in her home state of Georgia. After I read the document, she asked me if I would be willing to comment and state my observations on the complaint. I told her that I would if she were to give me a few days to digest the 104 page document.The first thing in addressing a legal complaint is to recognize the court in which it was filed and thus understand the basic nature of the suit itself. This suit was filed in federal district court not in a state court. Naturally this entails allegations of violations of federal law and the US Constitution as violations of state law or processes would be outside the jurisdiction of that federal court.Jumping all the way down to page 66, we start with the five counts alleged in the complaint (which means that most people won’t make it past the recitation of facts alleged and expected to support the actual claims.) Naturally the first count is usually the clearest and strongest claim the attorney imagines they are making.The suit alleges that tens of thousands of ballots were sent out which were not requested, that third parties acquired and voted absentee or mail-in ballots, that many such ballots were by people on record as having moved out of the state, and that ballots were witnessed as being counted for Biden which were marked for Trump.This argument is contingent upon who the defendants are: the Governor, Secretary of State, and Georgia State Election Board. It is the changes put in place by the defendants in the very processing of such ballots, including early processing of absentee ballots and creating a “cure procedure” for ballots violated the Constitution by these executive officers not only failing to follow the clear letter of the state laws but making up their own rules.This moves into the second count alleging failure to treat the ballots of voters equally in terms of the procedures, specifically citing the state law strictly forbidding the opening of ballots prior to the election violated under the guise of the created “rule” authorizing opening those ballots three weeks prior to the election.The suit claims stacks of likely fraudulent identical “pristine” ballots, breaches to the chain of custody of the voting machines, refusal to credential and even exclusion of poll watchers and representatives. Key to this count is that such alleged behavior occurred in some counties and not others, meaning that voter ballots and election process were not consistent from county to country denying the citizens of GA equal protection under the law.The third count revisits that previously mentioned “cure procedure”, created by the executive officers of the Board of Elections, and the involvement of election workers in “correcting” otherwise unreadable or defective ballots, but only in some counties, into a disparate treatment claim. This is not so much a new claim as a different form of the previous claim in that it opens the door for statistical proofs of which there was much alleged in the recitation of facts in the first two-thirds of the complaint.The forth count moves for the trifecta of civil rights claims, that of a denial of due process in the allowance of fraudulent votes diminishes and dilutes the “rights” of the voters to have their votes not only cast but counted. Essentially that due process necessitates “an election free from the taint of intimidation and fraud,” Burson v. Freeman, 504 U.S. 191, 211 (1992).Finally the claim wraps up with a more general catch-all claim of wide spread ballot fraud tying in specific examples of irregularities of the Dominion system, misrepresentations by election officials about a water pipe bursting, failure to maintain records, and even the mail-in voting process itself.Now that you have a general understanding of the claims, lets look back at some of the facts that the plaintiffs allege.First, and importantly, that “on March 6, 2020, . . . (the “Administrators”) entered into . . . . (the “Litigation Settlement”) with (collectively, the “Democrat Party Agencies”), setting forth different standards to be followed by the clerks and registrars in processing absentee ballots . . .” in contradiction to the applicable election statutes.Further, affiants allege that signatures were not being verified and had no envelopes, absentee ballots opened and counted prior to the election, audit procedures not made in public view, ballot machines not sealed or locked, viewed ballots for Trump placed in the pile for Biden, attempted, and intimidation of and hostility to Republican observers.Other that just the physical processes, the internal voting machine mechanics allows operators to arbitrarily remove ballots, accept or discard scanned batches, and individually adjust adjust the marking of ballots as “problematic”, and then it moves on to the security problems of the systems themselves.Then we move into the allegations of expert statistical analysis of known data errors and mathematical extrapolations, of several anomalies well above the margins of the elections.So what does all of this mean? Before we get into that, please note that the defendants in this case include the Republican Secretary of State and is not merely a partisan suit against Democrats.The first legal question is so obvious as to not really be a legitimate question at all. One of the core distinctions they hammer again and again in law schools is the difference between the words “shall”, “can”, and “may”; whether a law is mandatory, discretionary, or permissive. A key foundation of civics is the separation of the legislative and executive functions of government.Thus when the legislature passes a statute directing that the election rules “shall” be thus, there is no wiggle room for an executive to not follow that statute as written. When the Constitution itself delegates a function or authority to a state legislature, one of the executives of that state does not have the authority override the legislature and make up different rules. Further, no judicial court in a civil suit or settlement thereof has the authority to abrogate the law.Ought a case have been brought for injunctive relief to invalidate the agreement to not follow the state’s election laws prior to the election? Certainly it should have.This is where you get into te murky waters of political factions compromising with each other to the detriment of their own membership.If I may mix my metaphors for a moment. There is an old Indian story of a black wolf and a white wolf fighting for dominance, that the one you feed will become the stronger. There is also an old political story that democracy is two wolves and a sheep voting on what to have for lunch. When political elites “settle” their differences, it is like the white and black wolf have agreed that you are lunch, so it no longer matters which one you feed.Much rhetoric has been wasted on the idea that the allegations have not been “proven”; even before the allegations were even made. The affidavits are serious business, testimony made under oath. This election smells worse than most mafia trials with tales of intimidation and we have seen the use of doxxing to threaten to send the Antifa/BLM mobs after people in other states who initially refused to certify the election results. In light of that it would be foolish to blame anyone for not playing their cards close to their chest.The complaint takes great pains to point out that the numbers of alleged vote fraud or ballot stuffing are sufficient to reverse the totals in the election. That is the standard in such cases because the courts presume that if the election was won by a thousand votes but you can only prove 100 votes were fraudulent, then you have failed to allege a case which even needs to go to trial.This is naturally an irrational standard, because the votes you can prove were fraudulent are necessarily only the tip of the iceberg, and we know that 90% of the volume of any iceberg remains undetected below the water line. It would seem to the rational person that where there is smoke there is fire, and if you can prove some fraud, thus establishing a prima facie case, that should be enough to shift the burden of proof to the state to then prove that the fraud was not sufficiently consequential to sway the election.One of the arguments against allowing women to vote was that a contentious wife may vote contrary to her husband and cancel his vote. We have all heard people proudly proclaim that they were voting one way or another just to cancel someone’s vote with whom they disagree.The real harm in any single fraudulent vote is that the fraudulent vote cancels an honest vote. It diminishes every person’s vote in opposition. It is not a remedy to me that the state promises that next time my vote will count when they throw my vote in the garbage this time. Those same Republicans who signed that “settlement” with the Democrats enabling obvious vote fraud, are calling for their supporters to help them out in the Senate special election, pretending that this election will really be honest.Elections are contested because the harm is present, the solution cannot be future. We do not punish a murderer by taking away his knife so he can’t kill again. We do not punish a thief by promising to buy his victim better locks. We cannot punish vote fraud by promising that we might review the process before the next election.Update:https://twitter.com/LLinWood/status/1333259577182334976https://www.dropbox.com/s/7fewfrnbatz0jb7/THIRD%20ORDER%20-%20PEARSON%20v.%20KEMP%2011.29.2020.pdf?dl=0
