Prez Legal Battles Loom: What Trump v. Biden Portends—Echoes of 1876

Manzo on the election.

Saturday provided another bad set of optics for the 2020 National elections. After mainstream media justifiably hammered the President’s campaign for making assertions of election fraud without providing any evidence, the campaign responded by calling a press conference to reveal some of their evidence.

But this is information the media really does not want to see, and seems to be determined not to let you see. At the exact time the President’s campaign began to reveal evidence, the mainstream media chose not cover it, nor allow their audience to see it. Instead, the media decided this was the right time to “declare” Joe Biden the President-Elect.

There is a dangerous pattern beginning to evolve in the news industry of late—news developing from choreography rather than spontaneity. Fodder for another day.

For an institution that has a reciprocally hateful relationship with the President, it had to be a sweet moment for the media. Though “declare” maybe a bit more of an authoritarian proclamation; the old Cronkite vernacular, “we project to win,” is long gone.

Of course, the mainstream media has no authority to “declare” any candidate the winner of any election, only the election certification process validates the winner. The media now hopes that, with some airtight State races still counting votes and legal wrangling looming, their projections are not as much off as their election polling was.

Now, as in any contested election, the legal battles kickoff. This one is a bit more historic. I spent the weekend speaking with election and civil rights attorneys that I respect. Trying to get a sense of what will be playing out over the course of the next few weeks, before the certification process finally takes place in each State.

The ultimate destination for where the President’s lawyers hope this will be resolved is the Supreme Court of the United States [SCOTUS]. But first, the cases will have to wind their way through State and lower courts where, no matter which party prevails, the loser will file appeals until the cases reach SCOTUS.

It is believed that no State Court will side with the President’s lawyers. Some, [Pennsylvania], has said no already. This is what will trigger appeals into federal district courts for relief.

Once at the federal level, no matter which side prevails, the lower court determinations will likewise be appealed until they reach SCOTUS. Will SCOTUS decide to hear the matters? They can say no. But it’s doubtful, especially since Justice Samuel Alito fired a shot across the bow of Pennsylvania’s Secretary of State’s Office, reminding the Commonwealth to segregate all ballots received that were not conforming with Pennsylvania’s voting laws established by its legislature.

SCOTUS has the option to separate or bundle all of the disputes headed their way. They can also choose which litigation they decide to hear—most likely, granting certiorari to only the matters that prove to have relevance.

The main issue before the Justices will be to determine the authority of any entity in a State to ignore and rewrite the laws of its legislature. In the issue at hand, the legislative bypass was to revise and invalidate election rules and regulations put into place by those State legislatures, authority expressly granted them through the U.S. Constitution. This seems to be the systemic link binding all of the cases together.

The Governors of Pennsylvania, Michigan, Wisconsin, Nevada, Georgia, and Arizona all bypassed their State legislatures and changed the statutory voting laws of their States. COVID-19 Emergency Orders were the pretense for the action taken by the Governors. All of these State legislatures are Republican dominant. All of the Governors are Democrat.

Other changes to some State’s election laws were made by State courts. On election day, and the days preceding it, Democrats filed hundreds of pleadings in courts throughout the country, all seeking to loosen election protocols established to protect the voting process. They will be part of the arguments in the President’s filings as well.

The President’s lawyers claim the laws that were revised disenfranchised voters who cast ballots under the provisions of the legitimate laws. They are claiming civil rights violations for unfair election practices. They contest the validity of ballots cast under the change in laws and seek their disqualification. There are as many as 900k ballots suspect in Pennsylvania, lesser amounts in the other states, but enough in each State to affect the outcome of the election.

Beginning as soon as today, the President’s lawyers claim they will begin filing their cases. They stated that they will submit more than 2000 affidavits, hundreds of eyewitnesses, and evidence [documents, ballots, counterfeit ballots, videotape, audiotaped conversations, and computer apparatus] supporting their claims.

The President’s lawyers will charge that: election observers [challengers] were prohibited from conducting their functions by State election officials, election officials intentionally backdated ballots, election officials failed to inspect ballots for signature authorization, election officials counted compromised and counterfeit  ballots in contradiction to law, and that computer software apps [Scorecard & Hammer] were intentionally attached to election tabulation software for the purpose of corrupting tabulation results to the detriment of the President’s candidacy in numerous States.

Some of the counterfeit ballot evidence is citing substantial numbers of ballots that only listed Joe Biden as the Presidential candidate [MICH. 115k, WISC. 62k, GA. 90k, PENN 98k, AZ 42k].

The latter charge and evidence concerning corrupting election counting software is jaw dropping and merits discussion of its own. Researching the matter. When I first heard about these particular charges, I thought it was tinfoil hat time for the lawyers making the allegations.

I was astonished to find out that a well-respected former Federal prosecutor turned defense attorney, Sidney Powell, was handling this part of the President’s case. Powell is as serious as a heart attack. She represented former Senator Ted Stevens [Alaska] against federal corruption charges. The case against Stevens was dismissed when Powell uncovered and charged prosecutorial misconduct. The court sanctioned the prosecutors. Powell recently represented General Michael Flynn whose charges were ordered dismissed by an Appellate Court.

Sidney Powell does not associate her name with frivolous legal proceedings. Keep a sharp eye on the litigation she is handling.

Whatever filings survive and land at the Supreme Court, it will all boil down to the legality of doing an end run around laws established by State Legislatures under the express authority of the United States Constitution. This is a hurdle the States will find hard to defend. There is a mix of lower court decisions regarding the authority and implementation of emergency orders issued by Governors.

The consensus is that SCOTUS will uphold the authority of the State Legislatures as delegated to them by the Constitution’s Election Clause. The Election Clause language is too tall of an order for the State’s Governor’s to overcome.

The ruling is easy—it’s the remedy that’s the problem.

The probability is that SCOTUS will disqualify the segregated illegal ballots cast in violation of those laws and redirect the election certification authorities of the States to implement the orders of the Court. If the illegal ballots are already in the mix, it would be impossible to exorcise them from the vote count. SCOTUS will go no further, but offer guidance on what the Constitution says how they can remedy the situation.

A matter like this occurred only once before in our country—the Presidential election of 1876. Historians recorded the election between Republican Rutherford B. Hayes and Democrat Samuel J. Tilden as one of the most contentious in our Nation’s history…well maybe not after this year’s election.

Election results in four States that favored Tilden were found rife with fraud. The Republican-dominated state electoral commissions subsequently disallowed enough Democrat votes and awarded their electoral votes to Hayes, who was then elected the President. The Democrats didn’t object, they sold-out Tilden in what would become known as the Compromise of 1877.

If SCOTUS rules that votes cast in violation of the laws of the State are illegal, the State legislatures will have to decide if they will re-seat the delegates to the electoral college. They have the authority under the Constitution to do so.

But we are far from the conclusion of the legal battle that will begin this week. It will have many twists and turns, and possibly expose some very ugly conditions in our election institutions.

The next several weeks are no longer about the Presidential candidates. Now its all about the system that ensures our democracy. An election challenge is nothing to be repulsed by. Like in Bush v. Gore, this is a tribute to democracy—we don’t resolve our disputes at the point of a gun. We resolve our disputes in a courtroom, applying the rule of law. The rest of the world marvels. Dictators don’t understand.

As Democrats or Republicans, we have a compulsion to root for our side. That’s fine. But as Patriots we must let this playout and support whatever the conclusion. If we only support the law or doing what is right for people we agree with, and we won’t support the law or doing what is right for people we disagree with; then what good is the law or what is right?

Louis Manzo is a Former New Jersey State Assemblyman who sat on the Assembly Health, Economic Development, and Environmental committees. Former Hudson County Freeholder. Former Chief of Jersey City’s Health Division & Director of the Hudson County Division of Environmental and Public Health. 

Traditionally published American author. Published works include the bio, Ruthless Ambition: The Rise and Fall of Chris Christie ; and the novel, An Irish Lullaby. On occasion, a content contributor to various news and sports blogs. Regular guest on Connecticut morning radio talk show, The Phil Mikan Show [WLIS 1420 AM & WMRD 1150 AM].

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