11.30.2020 0

President Trump’s fight still matters, it is the fight for future electoral integrity

By Robert Romano

Click here to tell President Trump to keep fighting for election integrity!

“I’m not fighting for me, I’m fighting for the 74,000,000 million people (not including the many Trump ballots that were ‘tossed’), a record for a sitting President, who voted for me!”

That was President Donald Trump on Twitter on Nov. 30, vowing to continue his legal challenges of the outcome of the 2020 election in Georgia, Pennsylvania, Wisconsin, Arizona and Michigan.

With the exception of Georgia, all of these states — Pennsylvania, Wisconsin, Arizona and Michigan — have now certified their elections results with former Vice President Joe Biden as the winner, even as the challenges continue leading up to the meeting of the Electoral College on Dec. 14.

With almost all of the certifications now done, the avenues for President Trump have significantly narrowed, and will almost certainly now be challenging the certifications themselves, leading up to the Dec. 8 “safe harbor” deadline, when federal law provides for challenges to be settled by in order for the electors to meet the following week.

That makes this final week before the statutory deadline the most critical of the Trump campaign’s legal challenges. Whatever they have to show in courts of law and to state legislatures has to be done right now, because what follows after Dec. 8 will be an increasingly uphill battle.

Of the challenges made so far, perhaps the most compelling has to do with equal protection of the laws that states are supposed to guarantee in the counting of votes in jurisdictions that did not allow absentee mail-in ballots to be challenged in accordance with state laws.

For example, Pennsylvania law 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.”

In Georgia, the political parties are similarly 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 in Michigan, too: “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…”

And so forth. Yet, according to Trump campaign lawyers, such access was not allowed. According to former New York City Mayor Rudy Giuliani on Nov. 19, “in Pennsylvania, where we have probably our most precise evidence, 682,770 of these ballots were cast, put in, and they weren’t inspected, which renders them ballots that are null and void, cannot be counted, have to be removed from the vote. Why? For several reasons, not the least of which is, that was basically only one of two places in the state where it was done. So, in the other parts of the state, there was a legitimate inspection of the ballots. So, if you have two different standards in different parts of the state, one favoring one part of the state, the other disfavoring the other part of the state, that’s a classic violation of the equal protection clause of the United States constitution, Bush v. Gore being the most recent case that teaches that.”

Those appear to be among the best arguments that the Trump campaign has come up with — signature verifications out of accords with Georgia state law and being inconsistently applied across the state remains another that would similarly violate equal protection — and so now is the time for the campaign to lay all their cards on the table. In Wisconsin, where there were reportedly more absentee ballots than absentee ballot applications in certain Democratic counties, now is the time to lay it all out there. It’s almost Dec. 8.

After Dec. 8, whatever the states have reported as the electors will be who shows up to vote on Dec. 14, when the Electoral College formally convenes under federal law. That is when there will officially be a President-elect.

But, even then, the matter is not entirely settled, because under 3 U.S.C. Section 15, states will still have an opportunity to submit objections when the House and Senate formally convene for Jan. 6, 2021 joint session of Congress.

According to the law: “Every objection shall be made in writing, and shall state clearly and concisely, and without argument, the ground thereof, and shall be signed by at least one Senator and one Member of the House of Representatives before the same shall be received… if the two Houses shall disagree in respect of the counting of such votes, then, and in that case, the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted.”

At that point, it would be highly unlikely to countenance House Speaker Nancy Pelosi (D-Calif.) allowing her members to vote to overturn the outcome of the elections, even if the Senate were to do so on Jan. 6, 2021.

That is why, for President Trump’s hopes of challenging the election’s certification on the basis of equal protection, with time now running out, if his lawyers have any aces up their sleeves, it’s now or never. And not just for 2020, but for all future elections, if they are to be free and fair.

If nothing else, the massive irregularities should give cause to state legislatures, governors and candidates for these offices to push for election reform to ensure more in-person voting with voter identification, a restoration of rare absentee ballot election rules and iron-clad protections for election monitors, so that the counting fiasco of Nov. 3, Nov. 4 and the days that followed never happens again. President Trump is not fighting for nothing — he’s fighting for you.

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

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