What Should Be Done to Bring Integrity Back to Elections?

            The topic of discussion for this Constitution Monday is the regulation of elections. Article I of the United States Constitution gives the duties of the legislative branch of the government. Section 4 discusses elections. The Election Clause designates authority to regulate elections to the U.S. House of Representatives and the U.S. Senate. The clause also authorizes and empowers states to set the “Times, Places and Manner of holding Elections for Senators and Representatives.” However, Congress has power and authority to “make or alter such Regulations, excepts as to the Places of chusing Senators.”

            Michael T. Morley, Assistant Professor of Law at Florida State University College of Law, and Franita Tolson, Vice Dean for Faculty and Academic Affairs and Professor of Law at the University of Southern California, wrote an article discussing the Election Clause and explained it as follows. 

Although the Elections Clause makes states primarily responsible for regulating congressional elections, it vests ultimate power in Congress. Congress may pass federal laws regulating congressional elections that automatically displace (“preempt”) any contrary state statutes, or enact its own regulations concerning those aspects of elections that states may not have addressed. The Framers of the Constitution were concerned that states might establish unfair election procedures or attempt to undermine the national government by refusing to hold elections for Congress. They empowered Congress to step in and regulate such elections as a self-defense mechanism.

            The authors continued by explaining that there have been times when Congress used its “power to ‘make or alter’ rules concerning congressional elections, and some of its laws lie at the very heart of the modern electoral process.” Federal laws include the establishment of “a single national Election Day for congressional elections,” the mandate for “states with multiple Representatives in the U.S. House divide themselves into congressional districts,” laws “limiting the amount of money that people may contribute to candidates for Congress,” mandate that “voter registration forms be made available at various public offices,” and the requirement for “states to ensure the accuracy of their voter registration rolls.” The authors also stated that the Fourteenth Amendment “protects the fundamental right to vote, barring states from needlessly imposing substantial burdens on the right….”

            The power and authority for elections rests with the states, but Congress has the ultimate authority and power. They are to work together to ensure election integrity. This explains actions on two different fronts. On one front, H.R. 1 “addresses voter access, election integrity, election security, political spending, and ethics for the three branches of government. Specifically, the bill expands voter registration and voting access and limits removing voters from voter rolls. The bill provides for states to establish independent, non-partisan redistricting commissions.” Opponents of this bill say that it will end open and honest elections and ensure that Democrats remain in power. 

            The other front is taking place in the states. It is an effort to investigate what happened in the 2020 election and ensure that election fraud does not take place in the future. Just the News reported that some courts in battleground states have declared state laws regarding how “absentee ballots were implemented or counted violated state laws.” This month Michigan State Court of Claims concluded that Democratic Secretary of State Jocelyn Benson violated state law when she with her “instructions on signature verification for absentee ballots.” She told local election clerks in October to start with a “‘presumption’ that all signatures on absentee ballots were valid and only reject those that had ‘multiple significant and obvious’ inconsistencies.” Her instructions were challenged in court by Republicans and one election clerk. 

Chief Court of Claims Judge Christopher M. Murray ruled March 9 that the state Legislature did not provide such guidance in its election laws, and therefore Benson needed to promulgate a formal rule – a timely process – before imposing such a requirement. Murry told election clerks they should disregard Benson’s instructions in future elections.

“An agency must utilize formal rule-making procedures when establishing policies that ‘do not merely interpret or explain the statute or rules from which the agency derives its authority,’ but rather ‘establish the substantive standards implementing the program,’” Murray ruled.

“The guidance issued by the Secretary of State on October 6, 2020, with respect to signature-matching standards was issued in violation of the Administrative Procedures Act,” he concluded.

            Next door in Wisconsin, the justices at the state Supreme Court “concluded that state and local election officials erred when they gave blanket permission allowing voters to declare themselves homebound and skip voter ID requirements in the 2020 elections.” The “court ruled that only those voters whose ‘own age, physical illness or infirmity’ makes them homebound could declare themselves ‘indefinitely confined’ and avoid complying with a requirement for photo ID.” 

"We conclude that both the contention that electors qualify as indefinitely confined solely as the result of the COVID19 pandemic and the declared public health emergency and the contention that Wis. Stat. § 6.86(2)(a) could be used for those who 'have trouble presenting a valid ID' are erroneous because those reasons do not come within the statutory criteria," the court ruled.

In so doing, the court ruled that local officials like Dane County and Gov. Tony Evers did not have legal authority to exempt all voters to get an absentee ballot without an ID. Evers had issued an executive order earlier this year.

"We conclude that [Evers'] Emergency Order #12 did not render all Wisconsin electors 'indefinitely confined,' thereby obviating the requirement of a valid photo identification to obtain an absentee ballot," the majority ruling concluded.

            According to Just the News, a judge in Virginia ruled in January that election law had been violated by the Virginia Department of Elections in the 2020 election. The court “approved a consent decree permanently banning the acceptance of ballots without postmarks after Election Day.” The case was filed when an “electoral board member in Frederick County challenged the legality of the state’s instruction and won though the ruling came after the election. “If the return envelope has a missing postmark, the ballot shall be rendered invalid” was the ruling made by Frederick County Circuit Judge William W. Eldridge IV.

            A recent audit of mail-in ballots for heavily-Democratic Missoula County, Montana, found election irregularities – enough that could have swung the local 2020 election as well as past statewide elections. There is a question that the investigation into Montana elections may have an impact on the what the Democrats are planning for nationalizing and making permanent of the measures that were used during the 2020 election.

            In the summer of 2020, then-governor, Democrat Steve Bullock permitted counties to have full mail-in-voting. In addition, a “law aimed at preventing ballot harvesting” was struck down by a court in Montana. When Missoula County chose to go the vote-by-mail route, several residents of the county responded in October 2020. They had “experience targeting election integrity issues” and “formed a group to ensure the legitimacy of the 2020 vote.” They acted because the county had a history of anomalies in past elections.

            The group contacted state Republican state Rep. Brad Tschida, who hired attorney Quentin Rhodes to represent him. He contacted Missoula County Elections Administrator Bradley Seaman to request “access to all of the county’s ballot envelopes.” Seaman complied to the request. A team of volunteers worked with Rhoades and the Missoula County Elections Office to conduct an audit on January 4. The auditors counted and reviewed all ballot envelopes and compared their number to the number of officially recorded votes cast during the November 3, 2020, general election. 

Its conclusions were troubling: 4,592 out of the 72,491 mail-in ballots lacked envelopes – 6.33% of all votes. Without an officially printed envelope with registration information, a voter’s signature, and a postmark indicating whether it was cast on time, election officials cannot verify that a ballot is legitimate. It is against the law to count such votes.

What’s more, according to auditors, county employees claimed that during the post-election audit, some of the envelopes may have been double counted, possibly indicating an even higher number of missing envelopes.

Auditors also tested a smaller, random sub-sample of 15,455 mail-in envelopes for other defects. Of these, 55 lacked postmark dates, and 53 never had their signatures checked – for a total of 0.7% of all ballots in the sample. No envelope had more than one irregularity.

Extrapolating from the sub-sample, that would make more than 5,000 of Missoula County’s votes – roughly 7% -- with unexplained irregularities.

            The audit found another suspicious issue with dozens of ballot envelopes with similar and distinctive handwriting, suggesting one or more people had submitted several ballots – an act of fraud. Missoula County elections officials would not allow pictures of the signatures, which would allow cross-compare of ballot samples. Neither would the officials allow auditors “access to video footage [the county elections office] claimed to have recorded of vote-counting activities.”

            The court cases in the battleground states and the audit in Montana show that there were voting irregularities in the 2020 election. The election results have been confirmed, but the investigations could still show enough fraud to change the election. There were over 200,000 people in Wisconsin that declared themselves to be permanently confined because of the pandemic, many more than in a normal year with only a 20,000-vote difference between Joe Biden and Donald Trump. From Virginia to Michigan and Wisconsin to Montana and maybe Arizona - it sounds like election fraud was widespread to me.