Election law – and lawsuits

Kamala Harris’ campaign seems to be imploding, with failed attempts at identity pandering and now a plagiarism accusation. But Democrats clearly had a Plan B, which involves extending lawfare to election law. The litigation wars have already broken out, and so have incidents casting doubt on election integrity in several States. Furthermore, the Democrats’ top election lawyer already is threatening to sue away any Trump victory.

Pre-announcing election foul-ups

This morning,The Gateway Pundit’s Jim Hoft released a report originally from CBS News. According to it, Al Schmidt, Pennsylvania Secretary of State, told reporters that Pennsylvania might not have results for several days. In an interview with The Washington Post, he blamed election law that forbids any counting of absentee ballots before 7:00 a.m. on Election Day. Schmidt is not technically a Democrat; he’s a Never-Trump Republican whom Gov. Josh Shapiro appointed to the position.

Hoft explained that Pennsylvania was the source of the first counting troubles during the Election of 2020. The ballots in the missing truck trailer from New York ended up in Pennsylvania. Trump led far and away in the State until, three days later, came the count that flipped the results. That count took place in the Philadelphia Convention Center – after the counters expelled all Republican poll watchers.

So, here we go again. Texas and Florida can announce their results on Election Day. Pennsylvania could take a week or longer – it depends on how Kamala is doing. Jim Hoft

And in Grand Rapids, Michigan, the city clerk will resend 100 absentee ballots after voters said they never received them. Allegedly election officials will “spoil” those ballots.

Joel Hondorp, the clerk for the city of Grand Rapids, said it’s common for some absentee ballots to get lost because there are a lot of moving pieces at the United States Postal Service. The city and USPS are currently investigating where those missing ballots went.

The 100 people who called the clerk’s office to report not getting an absentee ballot have new ones on the way and the old ones were spoiled. Those voters will be able to tell which one is the new one if there is a higher number on the ballot and they can also call the clerk’s office to confirm whether it is the right one. Hondorp said overall his office has sent out 32,000 absentee ballots in total for this election. A majority of the 100 callers lived on the northwest side of the city.

Hondorp said the best way for all voters to keep track of their absentee ballots is to look on the state’s voting website. There you can track when your ballot was sent and if it was returned.

This illustrates perfectly why the French dispensed with mail-in ballots in 1975. Chains of custody cannot, by any stretch of logic or imagination, include even a government postal service. The only secure “absentee” balloting is early voting in person, or same-day voting by proxy. CNAV has discussed this before.

Trying to keep noncitizens on the ballot

Last Friday (October 11), the Justice Department sued the State of Virginia, the Virginia Department of Elections, and Susan Beals, Commissioner of Elections. United States v. Beals, case no. 1:24-cv-01807, in the U.S. District Court for the Eastern District of Virginia. This case has not progressed beyond the complaint and summons stage, but the twelve-page complaint is available. Judge Patricia Tolliver Giles – a Biden appointee – will preside.

The Justice Department explained, in its press release, that Virginia stands in violation of the 1993 National Voter Registration Act (the “Motor Voter Act”) by carrying out systematic cancellation of voter registration within ninety days of an election.

On August 7, Gov. Glenn Youngkin (R-Va.) issued Executive Order 35. That date begins the ninety days before November 5. In that order he noted that the State had removed 6,303 noncitizen names from the voter rolls. Those names are not at issue, according to the press release and the complaint. What is at issue are Daily List Updates, requiring the participation of all unit registrars. (A unit in Virginia parlance is a county or an independent city.) Anyone, registering to vote, answering “No” to the question “Are you a U.S. citizen?” is presumed not to be a citizen. The registrars send Notices of Intent to Cancel to the affected voters, and give them 14 days to file Affirmations of Citizenship. All such Notices of Intent include Affirmation of Citizenship forms and return envelopes. If they don’t answer within the 14 days, they’re out.

Allegations of citizens getting shut out

The problem, or so the Justice Department alleges, is that some U.S. citizens have the bad sense to say No to that question on the voter registration form. On that basis, the Justice Department asserts that U.S. citizens are losing their voter registrations. In fact the only evidence listed on the CourtListener docket, besides the complaint, are copies of notices of intent to cancel, and of cancellation.

The Justice Department further alleges that some registrars have canceled the registrations of “likely” U.S. citizens. They also say that some of these have re-registered to vote. This begs the question of why all affected citizens cannot do the same.

The Justice Department seeks declaratory and injunctive relief, and specifically that the Court enjoin the Department of Elections to:

1. Stop all Daily List Updates until after the election,
2. Reinstate all U.S. citizens to the voter rolls if they got dropped after August 7,
3. Publish these facts, and
4. Make sure Officers of Election know that such reinstated voters may cast regular (not provisional) ballots.

Theoretically this wouldn’t require them to reinstate any of the 6,303 they dropped from the rolls earlier. But Virginia does not really have a registration deadline. Technically, the deadline for regular registration, in time to cast a regular ballot, falls today. But voters may register up to the day of the election, and cast provisional ballots.

Gov. Youngkin explained these distinctions in an interview with CNN’s Jake Tapper yesterday.

A more dire election lawfare threat

But the day before the Justice Department filed its lawsuit in Virginia, Paul Sperry, at RealClearInvestigations, warned everyone that “Trump’s toughest foe” could be Marc E. Elias (Eeh-LYE-ahss), experienced election lawfare warrior for the Democratic Party. According to Sperry, Elias has filed more than sixty lawsuits already, challenging various election-integrity measures. Among these are any requirement that a voter show proper identification at check-in or when requesting an absentee ballot.

Elias has also been sending letters to individual registrars in Georgia “and other swing States,” threatening them with litigation if they enforce programs, like the one at issue in Virginia, to remove noncitizens from their voter rolls. (The Virginia case is directly from the Justice Department, not Mr. Elias or the Harris campaign. A spot check indicates Mr. Elias has sent no such letters to any general registrar in Virginia.)

More to the point, if Trump carries 270 or more electoral votes, Elias plans to sue in several swing States, demanding recounts.

A new lawfare twist – step in demanding return to paper?

Ironically, if Marc Elias sues for recounts, he will be demanding the precise result election-integrity activists have demanded since 2020. In fact, the Chairman and Vice-Chairman of the Waynesboro, Virginia Board of Elections are suing Commissioner Beals to insist on election law changes. (Source: The Staunton News Leader.Specifically, they cite Article II Section 3 of the Constitution of Virginia, which reads:

In elections other than primary elections, provision shall be made whereby votes may be cast for persons other than the listed candidates or nominees. Secrecy in casting votes shall be maintained, except as provision may be made for assistance to handicapped voters, but the ballot box or voting machine shall be kept in public view and shall not be opened, nor the ballots canvassed nor the votes counted, in secret. Votes may be cast in person or by absentee ballot as provided by law.

Waynesboro’s officers alleged that a count by a scanner-tabulator constitutes a secret count, because its source code is not available. Logic and Accuracy testing, in theory, verifies that a scanner-tabulator produces an accurate count. But the Waynesboro plaintiffs, and election-integrity activists, insist that, for all anyone does or can know, the scanner-tabulator has instructions to apply one routine for L&A testing and another during the election. The only solution would be to release or “open-source” the source code – or count votes by hand at precinct level.

In nearly every Virginia unit, voters mark paper Australian-style ballots displaying all races and public questions, and options for each. OOEs count the ballots and make sure these tally with voter-check-ins. They then seal the ballots in boxes bearing their signatures – and only a circuit judge may order their unsealing.

The typical scenario for such unsealing is a manual recount. If Marc Elias demands that, the election-integrity activists will have the very result they desire. The only difference will be that the recount will be at unit level, not at precinct level.

Summary

An old lawyers’ proverb says that if you can’t argue the facts, argue the law. Which is what Marc Elias and the Department of Justice are now doing. In so doing, they’ve admitted that Kamala Harris and most of her fellow Democrats have already lost. But many jittery OOEs will go to work an election, wondering whether they will have to testify in court as to how they ran their elections. And this time, the prospect is coming from the Democrats and not from President Trump.

All Officers of Election in every State of the Union, but particularly in RealClearPolitics “swing States,” should make sure their elections will be “audit-ready.” That applies also to Virginia, which, according to at least half the polling industry, is “in play.” The best defense against lawfare is a proper trail of solid evidence.