This second of four articles covers how time-tested traditional fraud tactics dating back to Boss Tweed appear to have been used in targeted “battleground” states in 2020, how their detection revealed abundant evidence of massive fraud, but nevertheless the state courts turned a deaf ear to lawsuits. (Allegations of vote machine fraud will be the topic of a later article.)
December 14: Another 2020 Surprise. In seven states — Pennsylvania (20 electoral votes or EV), Georgia (16 EV), Michigan (16 EV) Arizona (11 EV), Wisconsin (10 EV), Nevada (6 EV), and New Mexico (5 EV) — Republican lawmakers voted to send a competing slate of Electors to Congress come January 6, 2021.
An excellent summary of election illegalities in the top six battleground states (does not include New Mexico), (“The Immaculate Deception”), was compiled by White House adviser Peter Navarro (working on his own, hence not an official White House document.) In broad brushstroke: (1) his report found significant voting “irregularities” whose extent dwarfed the thin Biden margins in the six battleground states; (2) mass/social media companies have refused to consider credible evidence of massive fraud; (3) GOP legislators wilted under intense political and media pressure; (4) state and federal courts — including the Supremes — failed to properly adjudicate lawsuits seeking to flip the results in contested states.
New Mexico. On December 14 Trump attorneys filed a complaint in federal district court against New Mexico election officials, seeking an injunction pendent lite (“during the litigation”) against state officials, rescinding their certification of New Mexico’s 5 Electors. The complaint, as was the case in Wisconsin, is framed as a pure question of law — hence, no fact-finding proceeding is needed. Essentially, Democrat election officials made changes to the law as passed by the legislators, in the guise of interpretation. Put simply, before 2019, there were three recognized ways that voters could exercise the franchise by using absentee ballots: mailing them in; walking them in to the county clerk’s office; or walking them into a polling place. In 2019, New Mexico election officials added a fourth way by which to vote absentee: voting by “secured container.” These containers were to be monitored by a video surveillance system and were to be ready at least 90 days before the general election. New Mexico’s top election official extended this idea to include drop boxes, a term not found in the law. As of this writing, the court has not responded. Biden’s margin: 99,720 votes.
Arizona: In a lawsuit filed by Arizona Elector Kelli Ward on behalf of Team Trump, the Arizona Supreme Court denied her petition. The decision rested upon a trial court finding after a small sample of ballots were audited, with presentations from each side’s expert witness, that the election had seen far too little fraud to alter the outcome. Arizona’s election law requires that the margin be within 0.01 percent — in Arizona’s 2020 election, 3,339 votes — for an automatic recount. Further, unlike in Wisconsin, the Arizona Election Commission’s administrative guidelines, per legislative delegation, have the force of law. Given the extremely stringent threshold for contesting the election, the Court’s ruling appears reasonable. Biden’s margin: 10,457 votes.
Michigan: The Michigan House and Senate Oversight Committees have subpoenaed records from Wayne (includes Detroit) and Livonia counties; election records were reportedly deleted on November 30. (If true, this would appear to violate federal election record-keeping laws.) Biden’s margin: 154,188 votes.
Nevada: The Nevada GOP has examined state motor-vehicle records, pursuant to a subpoena, and alleged that thousands of illegal votes were cast by non-citizens in the 2020 election. At a Senate hearing recently, chaired by Sen. Ron Johnson (R-Wisc.), a young attorney testified (3:41) as to corrupt actions by Nevada officials,. On August 3, Nevada legislators adopted Assembly Bill 4, providing for universal mail-in voting; the result was a huge jump in mail-in votes, from 70,000 in 2016 to over 690,000 in 2020. He explained how data was extracted from public records. The attorney detailed how a search of databases revealed that 42,000 people voted more than once; 19,000 who voted live outside the state; 15,000 are registered to a commercial address; 8,000 gave non-existent addresses; 4,000 non-citizens voted; 1,500 dead persons “voted.”
Experts compared records of voters as to name, address, and date of birth; this catches people who use middle initials or married names when they vote more than once, to hide duplication. Social Security death records were used to identify dead “voters.” The USPS address list was used to flag commercial addresses. In searching for absentee voters, they took care to exclude military voters and students, yet still found 19,000 out-of-state voters. They used motor vehicle registrations to flag non-citizen voters. In all, they turned up 130,000 unique instances of voter fraud.
Tellingly, YouTube removed the Senate hearing video for “violating community guidelines” — Newspeak for anything that could help Republicans — showing apparent evidence of vote fraud. (The link above is from the online website Independent Sentinel.) Biden’s margin: 33,596 votes.
Wisconsin: Wisconsin’s Supreme Court issued two rulings on Dec. 14. It conducted a review of 100,260 ballots whose legality was in question — mainly due to guidelines issued by the Wisconsin Election Commission (WEC). One minor victory for Team Trump was the Court’s ruling that in designating all absentee voters “indefinitely confined” due to COVID, the state governor went too far, as the matter is for the legislature. The main judicial majority opinion addressed four issues. First, as to 50,125 voters purportedly “indefinitely confined,” per Wisconsin law, such ballots must be verified by signature of the disabled voter, a family member or an authorized caregiver. Failing verification, they cannot be counted in the certified tally. As to 28,395 ballots cast from home, they followed WEC COVID-19 guidelines that dispensed with the photo ID required by state law and allowed 206 “drop box” locations set up per WEC guidelines. Third, 17,271 ballots were cast at 206 “drop box” locations staffed by volunteer poll workers, per WEC guidelines that flatly contradicted the statute, which for chain-of-custody requires they be presented sealed in an envelope with the voter’s name, signed and witnessed, and the ballot sealed in the envelope. Fourth, 4,469 absentee ballots were illegally cast because the voter addresses on the envelope were filled in by county employees, flatly contrary to statutory law.
As with New Mexico, pure questions of law were at stake — in the other states there were major issues of fact, making it harder to get state or federal appeals courts to rule. Doing so means limiting issues on appeal to those where there is no factual dispute. All seven justices of the Wisconsin Supreme Court agreed as to the facts, but vigorously disagreed as to the law. The majority ruled against Trump on the merits as to the 50,125 ballots cast by “indefinitely confined” voters, the Court majority (including one Republican), ruled that those could not be invalidated as a group, but only on a case-by-case basis. On the remaining three issues, the Court applied the equitable doctrine of laches — the legal doctrine that bars claims belatedly asserted, and hence prejudicial to defendant’s rights. The majority opinion stated as to laches that petitioners could be barred even if they were unaware of the risks, if the facts were those a reasonably prudent plaintiff should have known.
The dissenters (including the chief justice) raised essentially two arguments: that election officials did not have the authority to alter the statute, in the guise of interpretation; and that laches should not be applied. One noted that in the two weeks prior to the election 170,151 voters asked for absentee ballots without filling out the statutorily required written application separate forms the ballot itself. Re laches, one wrote that the majority’s position has never been the law in Wisconsin. Laches applies when either evidentiary or economic prejudice impairs the defendant’s rights, neither of which is present in this case. And for Team Trump to know in advance of possible harm, they’d have to monitor 1,852 precincts and 72 counties in Wisconsin alone.
On Dec. 24, the U.S. Court of Appeals Seventh Circuit, whilst denying an appeal by Team Trump of the Wisconsin Supreme Court decision, did concede that if a court declares the election void, the State Electors could decide which Elector slate should represent Wisconsin in Congress on Jan. 6.
In its appeal of Wisconsin’s decision, filed with the U.S. Supreme Court, Team Trump noted that under state law, any candidate who trails the winner by less than 1 percent is entitled by law to an automatic recount. And as there is not a word in the statutes about laches as a defense, this right prevails. Two more nuggets: (a) Two of Wisconsin’s 10 Democratic Electors cast absentee ballots as “indefinitely confined,” yet showed up at the State Capitol to cast their Elector votes; (b) at oral argument in the Wisconsin Supreme Court, one of the Democrat judges told the president’s attorney, “You want us to overturn this election so that your king can stay in power, and that is so un-American.” Biden’s margin: 20,682 votes.
Georgia: Some 100,000 ballots were pulled out from under polling place tables, after observers were told to go home and return in the morning, and were later tabulated, as captured on video. This infographic presents a reconstruction of an event timeline for November 3 in Atlanta, with embedded videos. (This photo taken Dec. 26 in Cobb County shows a room with unattended voting machines, an omen for the Senate runoff races and the attitude of Democrat election officials.) The Georgia Supreme Court refused to take original jurisdiction of election fraud claims, and held that plaintiffs must start in trial court.
In more recent news, Georgia officials in Fulton County (Democratic) have fired whistleblower election officials. This is a major mistake: Punishing honest officials suggests fraudulent intent. They will, if willing, be superb witnesses to debrief, as part of Trump’s Jan. 6 challenge. In a contrary, welcome development, Georgia’s secretary of state announced a signature-matching review of all absentee presidential ballots cast in the state’s 159 counties. And here is a video alleging that Georgia officials clandestinely counted ballots after poll watchers were told to go home. This counting went on for some two hours. All such ballots were counted in flagrant violation of ballot integrity and voter verification norms expressly mandated under Georgia state law. Biden’s margin: 11,779 votes.
Pennsylvania: So-called “naked ballots” — mail-in/absentee ballots arriving without being sealed in an envelope, as required by law, were a major problem. Justice Samuel Alito’s Nov. 6 order to segregate ballots received after Nov. 3 was ignored, while the election officials assert that only 10,000 such ballots — a risibly low number — arrived. As they were commingled there is no way to verify this. Such ambiguities in courts of law are always resolved against the guilty party; the proper way for a court to proceed here would be to discard all ballots commingled, in whichever precincts this was done. A recent review by state lawmakers, as reported by The Jewish Voice, concluded that votes in excess of eligible voters totaled more than twice the number of the Biden margin:
A comparison of official county election results to the total number of voters who voted on November 3, 2020 as recorded by the Department of State shows that 6,962,607 total ballots were reported as being cast, while DoS/SURE system records indicate that only 6,760,230 total voters actually voted. Among the 6,962,607 total ballots cast, 6,931,060 total votes were counted in the presidential race, including all three candidates on the ballot and write-in candidates.
The difference of 202,377 more votes cast than voters voting, together with the 31,547 over- and under-votes in the presidential race, adds up to an alarming discrepancy of 170,830 votes, which is more than twice the reported statewide difference between the two major candidates for President of the United States. On November 24, 2020, [the secretary of state] certified election results, and Wolf issued a certificate of ascertainment of presidential electors, stating that Vice President Joe Biden received 80,555 more votes than President Donald Trump.
The Pennsylvania Supreme Court denied a petition filed by state lawmakers, seeking review of the election result. The Court’s order invoked laches — the legal doctrine that calls for dismissal of complaints filed belatedly.
Despite the above issues, the Supremes declined to hear the case. Biden’s margin: 80,555.
Path Forward. Former independent counsel Kenneth Starr noted that when state officials and courts, as in Pennsylvania, changed state legislative law during the election campaign they violated the equal protection and due process rights recognized in Bush v. Gore:
I think that Bush v. Gore stands for this basic proposition, you cannot have changes in election laws after the fact, you must in fact, be faithful to what the state legislature has done. That’s also what Justice [Samuel] Alito said in his opinion, I think essentially condemning, but certainly identifying as a huge issue, what had happened in Pennsylvania. I think all-in-all Bush v. Gore is just a reiteration of our constitutional structure.
But the most promising path for Team Trump is to convince state legislatures to appoint a competing slate of GOP Electors, as explained in detail (16:09) by Trump attorney Jenna Ellis. Yet that path is not paved with statistical improbability evidence. Such evidence is vital for crafting election equipment procurement reform, at the federal and state levels. But it cannot be fully developed in the telescoped time frame the GOP faces now.
The path to what still is a long-shot reversal is through traditional evidence of ballots illegally cast. Much of that evidence already has been gleaned from state databases and matched against the 2020 vote: (a) ineligible persons: ballots cast by or in the name of underage residents, non-residents of a particular county or state, felons, non-citizens, in the name of dead persons; (b) ineligible addresses: ballots cast from non-existent or commercial addresses, or from fictive residences — vacant parking lots, etc.; (c) ineligible places: ballots cast from locations expressly excluded by state law; (d) unverifiable sources: ballots cast with non-traceable addresses and/or compromised integrity.
These infractions automatically render such ballots illegally cast — they cannot be saved by interpretation, as statutory provisions with these cases are unambiguous. If Wisconsin’s ban against use of drop boxes had been qualified by language as to “reasonable” location, there would be room for election officials — and reviewing courts or legislators — to consider particular interpretations. But Wisconsin’s flat prohibition against any use of drop boxes — and, for that matter, against any “convenience” early voting — admits of but one interpretation: They cannot be counted. If COVID-19 is offered as an excuse, officials should have gone to the state legislature to request changes in the law — well before the fall election campaign began.
Combined, the totals of these ballots amount to many times the margin of Biden tallies in at least three battleground states: Georgia, Pennsylvania, and Wisconsin. Their total of 46 electoral votes could put Trump at 278 electoral votes on Jan. 6. Only by eliminating judgment calls of any kind does the effort to convince Republicans to choose the Republican Electors from these states have any chance to succeed.
Assuredly, the margins must be substantial; they must exceed documented database error rates by a large margin to be credible to the persuadable portion of the voting public. The 2012 Pew estimate that 24 million of 192 voter registration entries were seriously flawed means that a “haircut” margin of safety is needed as allow for database entry errors. An assumed figure of 50 percent database error — four times Pew’s 2012 number — surely will suffice. Even with that large error assumption factored in, the remainder number will greatly exceed Biden’s current margins in several states.
Bottom Line. As this article goes to press, the Supreme Court has not acted on Team Trump’s petition for a hearing on Pennsylvania ballot issues, where there is no doubt that per Bush v. Gore the Court has jurisdiction to hear the case. With Bush v. Gore now apparently interred by the Supreme Court, future presidential contests will likely see vote fraud on a scale large enough to preclude resolution in a few weeks. Look as well for fraud in key House and Senate contests in 2022. Democrats did not anticipate Trump would have coattails, so they ignored down-ballot harvesting. The professionals now have two years to refine their suspicious voting practices to make them less detectible. Democrats will block efforts to reform voter laws. And as they got away with bypassing and outright ignoring laws this time, and the courts did not stop them, even if new laws pass they will be dead on arrival.
If the Supreme Court surprises and decides to hear the case at the last minute, their decision, either way, will effectively end the post-election contest. The Electors will have been let off the hook, and the Jan. 6 certification turned into what it usually is, a formality. Conversely, having done nothing this week surely they will wait until after the Jan. 6 certification, and then declare further appeals moot. Having passed now, the requisite urgency has arisen for Team Trump to appeal to wavering or resistant Electors, in the few days remaining, to vote to seat the competing GOP slates. It is a huge long-shot that Team Trump will win in either the judicial or legislative forums. Yet having come this far, they may as well see it through.
Out of this mess surely there are more casualties to come. With a solid majority of Republicans convinced their candidate was cheated out of reelection, and a plurality of independents conceding that there was vote fraud, confidence in the integrity and fairness of America’s elections has taken yet another monster hit. That this will happen again is a virtual given.
Author’s note: This is the second of what is now four articles on developments in politics and law in the 2020 presidential post-election controversy. The next article will focus on matters pertaining to the Jan. 6 certification vote in Congress. The final article will focus on arguments surrounding claims of electronic vote-machine fraud, which require long-term fixes.
John C. Wohlstetter is author of Sleepwalking with the Bomb (Discovery Institute Press, 2nd. ed., 2014).