11.10.2020 1

Legitimacy of election hinges on verifiable recounts of absentee ballots in PA, MI, WI, GA, AZ

By Robert Romano

Where are the envelopes?

That is the question every single Republican Party lawyer contesting the results of absentee mail-in ballots in Pennsylvania, Michigan, Wisconsin, Georgia and Arizona ought to be asking in courts in order to determine how many ballots were submitted after legal Election Day deadlines or were otherwise potentially illegitimate because the signatures or addresses didn’t match, or if the voter was even on the voter rolls.

Without those envelopes, which have now been separated without opportunities by GOP poll watchers entitled under state laws to examine, it may now be impossible to determine whether or not these were properly submitted and counted.

In Pennsylvania, for example, the voter’s signature was supposed to go on the envelope containing the ballot, and does not appear on the ballot itself. According VotesPA.com, voters must “[c]omplete, sign and date the voter’s declaration on the outside of the outer return envelope. If you do not sign the outer return envelope, your ballot will not be counted.”

Meaning, with the ballots separated from the envelopes, even if courts were to order recounts in all of these states — which they should — providing an opportunity for examination of the ballots to occur, ballot by ballot, it may be impossible to trace them back to the voters on file and determine if that person was eligible or not, and if it was submitted in time.

That, even though on Nov. 6 Supreme Court Justice Samuel Alito ordered in Pennsylvania that “all ballots received by mail after 8:00 p.m. on November 3 be segregated and kept ‘in a secure, safe and sealed container separate from other voted ballots,’ and … that all such ballots, if counted, be counted separately.”

That was anticipating a legal challenge to late ballots, because under Pennsylvania law, it states, “No absentee ballot under this subsection shall be counted which is received in the office of the county board of elections later than eight o’clock P.M. on the day of the primary or election.”

Article I, Section 4 of the U.S. Constitution states, “The times, places, and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof…”

The problem in Pennsylvania is that poll watchers were not given the opportunity to challenge ballots, according to President Donald Trump’s lawyer, Rudy Giuliani, who alleged at a press conference on Nov. 7, “Even when a court order was obtained to allow the Republican inspectors to get six feet closer, they moved the people counting the ballots six further feet away. It’s really simple. If you have nothing to hide with these mail-in ballots, you allow inspection. I mean, this is common knowledge, common practice in the examination of absentee ballots, which happens all the time. You take out the absentee ballot, you open it up, the Republican looks at it, the Democrat looks at it. If nobody objects, you put it in the pile. If either objects, you put it aside. That’s what’s done for absentee ballots, which have the extra security of having signatures you can match. Here, which is a much more insecure method of voting, no Republican got a chance to look at that ballot. Some of the ballots you will see looked suspicious. From very far away, they look like the same pen, possibly the same handwriting. We can’t say that, because we never got to see it.”

That would certainly violate Pennsylvania law, which states, “If the local election board is satisfied that the declaration is sufficient and the information contained in the ‘Registered Absentee Voters File,’ the absentee voters’ list and the ‘Military Veterans and Emergency Civilians Absentee Voters File’ verifies his right to vote, the local election board shall announce the name of the elector and shall give any watcher present an opportunity to challenge any absentee elector upon the ground or grounds (1) that the absentee elector is not a qualified elector;  or (2) that the absentee elector was within the municipality of his residence on the day of the primary or election during the period the polls were open, except where he was in military service or except in the case where his ballot was obtained for the reason that he was unable to appear personally at the polling place because of illness or physical disability;  or (3) that the absentee elector was able to appear personally at the polling place on the day of the primary or election during the period the polls were open in the case his ballot was obtained for the reason that he was unable to appear personally at the polling place because of illness or physical disability.”

Giuliani added, “Now, you’re also going to find that way across on the other side of the state, there was a similar situation in Pittsburgh, involving 300,000 ballots that were un-inspected, un-reviewed, not observed by a single Republican. Not a single one. There’s got to be a pattern. As a friend of mine says, I don’t believe in conspiracies, but I also don’t believe in coincidences. It’s kind of funny that all Republicans were rejected here and all Republicans were rejected in Pittsburgh, and it amounts to about, gee, just about the 700,000 votes that President Trump was ahead by two days ago that disappeared. And we have no way of knowing, because we were deprived of the right to inspect if a single one of those ballots is legitimate. That is unheard of. It’s illegal, it’s unconstitutional, and we will be bringing and action, challenging that.”

And of course the Republicans will be challenging these uninspected ballots. Why wouldn’t they? But now it might be impossible. Suffice to say, without the envelopes tied to the ballots being available in any recount, particularly in Pennsylvania, questions about the legality of these ballots could linger throughout history.

And the biggest loser in that process will be former Vice President Joe Biden, who has the greatest interest in ensuring that if he won, it was a verifiable outcome. The legitimacy of any Biden victory depends on it.


Whether or not Biden finds cooperation among Republicans in Congress — who appear poised to reclaim the Senate pending the outcome of two runoffs in Georgia in January — depends on it.

The potential problem of missing envelopes ranges across the swing states. In Georgia, where a recount has been ordered, “Copies of any ID’s must be placed in the outer envelope…. Once the absentee ballot is received by the county office, the registrar will compare your signature on your absentee ballot oath envelope to your signature on your voter registration card and your application for absentee ballots to verify your signature. If the signature on the absentee ballot oath envelope is missing or does not match the previous signatures, your county will contact you and provide a document whereby you can provide a signature and ID to verify your ballot.”

And, the political parties are entitled to monitors under state law: “The county executive committee or, if there is no organized county executive committee, the state executive committee of each political party and political body having candidates whose names appear on the ballot for such election in such county shall have the right to designate two persons and each independent and nonpartisan candidate whose name appears on the ballot for such election in such county shall have the right to designate one person to act as monitors for such process.”

And they must be present at the opening of the ballots: “At least three persons who are registrars, deputy registrars, poll workers, or absentee ballot clerks must be present before commencing; and three persons who are registrars, deputy registrars, or absentee ballot clerks shall be present at all times while the outer envelopes are being opened.”

Similarly, in Michigan, absentee ballots must be signed on the envelope and match the signature on file to be counted, according to the Secretary of State Jocelyn Benson’s website, “After receiving your absent voter ballot, you have until 8 p.m. on Election Day to complete the ballot and return it to the clerk’s office. Your ballot will not be counted unless your signature is on the return envelope and matches your signature on file. If you received assistance voting the ballot, then the signature of the person who helped you must also be on the return envelope. Only you, a family member or person residing in your household, a mail carrier, or election official is authorized to deliver your signed absent voter ballot to your clerk’s office.”

And under state law, political party monitors must be present, and the absentee ballots must be “accessible to challengers”: “At all times, at least 1 election inspector from each major political party must be present at the location and the policies and procedures adopted by the secretary of state regarding the handling of absent voter ballot return envelopes and absent voter ballot secrecy envelopes must be followed… The opening of absent voter ballot return envelopes must be done at a location designated by the city or township clerk, and the location and opening of absent voter ballot return envelopes must be accessible to challengers as described in section 730. The election inspectors appointed to the location where absent voter ballot return envelopes will be opened in that city or township must never leave the absent voter ballot secrecy envelopes unattended. Once the absent voter ballot return envelopes have been opened as provided in this subsection, the absent voter ballot secrecy envelopes containing the absent voter ballots to be counted must be stored, secured, and sealed in an absent voter ballot secrecy envelope container… or stored, secured, and sealed in a ballot container…”

But what if the monitors were not allowed to inspect ballots and challenge them? Then the counting was illegal under state law.

Get the picture? This is not an innocuous footnote. The ballots in our democratic republic are sacred, and when they are submitted via absentee, the political parties are entitled to challenge each and every one of them to determine that the person voter was properly registered and living in the state.

It is standard procedure, and yet, in major cities run by Democrats across the country in critical battleground states, Republican poll watchers were prevented from doing their jobs.

Now, the only way to determine if these ballots were legitimate will be with recounts that should be promptly ordered by state courts, or if they refuse, the U.S. Supreme Court. And if the ballots were permanently separated from their envelopes denoting the voter, and/or if those envelopes were destroyed, even with recounts, it may be impossible to determine if every vote that was counted in the 2020 election was legally cast.

At that stage, the only possible remedy might be to invalidate the count, either by the courts or by the state legislature when it comes to assigning electors, again, assuming it is no longer possible to reconnect the uninspected absentee ballots with their envelopes.

That’s where this is going.

And if Joe Biden, even if he wins, then finds he lacks the legitimacy to govern with a mandate, he will have no one to blame but the local Democratic Parties that botched the counting of absentee ballots by blocking legitimate Republican poll watchers in clear violation of state laws. Way to go, Joe.

Robert Romano is the Vice President of Public Policy at Americans for Limited Government.

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