For anything to have even a remote chance of changing when it comes to the outcome of the Electoral College, the current status of Pennsylvania, Wisconsin, and Georgia must change.
Pennsylvania is a bit of a mess at this point, but there are meaningful challenges to the vote totals still pending, the adverse decision in federal district court is being appealed (interestingly, only the denial of leave to amend is being appealed), and a new complaint relating to Philadelphia and the surrounding counties is being suggested as a possibility. I’ll summarize these in a day or two as more comes into focus this week.
The campaign has asked for recounts in two Wisconsin counties — Dane and Milwaukee. Both produced a large number of Biden votes — Dane County particularly. I’m not sure exactly what the goal is in recounting those counties, but it seems as if Wisconsin law allows challenges to ballots to be made during the recount process.
The margin is only 20,000 votes out of 3.2 million cast, so it is not out of the question that if there was some nefarious practice engaged in, a recount might uncover a decent number of votes. Wisconsin has same-day registration, so the emphasis might be to target suspicious registrations as potentially invalid votes in those two counties.
But in Georgia, the approach seems to be a normal election contest that will take place in Georgia state court, and the evidence may be coming into focus that gives the Campaign a legitimate chance to reverse the outcome. The margin of Biden’s win in Georgia is only 12,500 votes, and the Trump campaign has requested a machine recount which they are entitled to under Georgia law given the narrow margin. After that, I am expecting that the Campaign will file a Petition to Challenge the election as explained in more detail below.
What the Trump campaign seems to be focusing on is the validity of approximately 1 million new voter registrations between Nov. 2018 and Nov. 2020. From official Georgia state records:
Nov. 2018: 6,248,591 Active Registered Voters
Nov. 2020: 7,233,584 Active Registered Voters
To register to vote in Georgia, an applicant must provide a residence address. The applicant can provide a different mailing address, but a residence address is required as that determines what election district the applicant will vote in and on what local races. This requirement is clearly set forth on the application.
Absentee ballots cast in 2020 totaled 1,322,529. I expect the campaign is spending time and resources cross-referencing the newly registered voters against the mail-in ballots.
But a person connected to the campaign has already given some hints on Twitter as to what the Campaign is looking at:
– Georgia: With just a partial review of the state, we've also discovered a thousand votes cast by those registered in non-residential, purely commercial addresses also disguised with "Apt," etc.
— Matt Braynard (@MattBraynard) November 22, 2020
There is also anecdotal information — not yet verified — that many such businesses in the metro-Atlanta area exhausted their inventory of available boxes in September and October.
To the extent they are able, what it seems the campaign is doing is cross-referencing the street addresses of these commercial mail-drop businesses against voter registration information.
The issue of the “signature matching” requirements under Georgia law — as modified by the Secretary of State in settling a lawsuit brought by the Democrat Party of Georgia — is also at issue.
I covered this topic in connection with a lawsuit filed by famed Atlanta Attorney Lin Wood — with himself as Plaintiff — as part of which he filed approximately 20 affidavits from persons who had been involved in the hand recount ordered by the Secretary of State. That lawsuit was dismissed by a federal judge last week on the basis that Wood as an individual lacked standing to bring the claims he made. The Judge asked during an evidentiary hearing why the Trump campaign had not joined the lawsuit, and I think we can see now why that is the case.
The Wood lawsuit called public attention to certain irregularities as set forth in the filed affidavits. But, in addition to that information, the Trump Campaign is focused on the likelihood that illegitimate votes were cast by individuals who were not lawfully registered. Because individual ballots in Georgia have barcode identifiers, it is possible to eliminate specific illegally cast ballots from the vote count. That is the remedy the Trump campaign will be focused on — if it finds more than 10,000 voters with defects in their registration.
But the “signature matching” question remains an issue as well. Late last week, the Secretary of State released information on the signature rejection rates for absentee ballots. Here is what was said:
2,011 absentee ballots were rejected in the November 2020 election for missing or non-matching signatures out of 1,322,529 absentee ballots cast. In November 2018, 454 absentee ballots were rejected for missing or non-matching signatures out of 284,393 absentee ballots cast. The 0.15% rejection rate for signature issues was the same in both the 2018 and 2020 General Elections.
In the 2020 Primary, 3,266 absentee ballot were rejected for missing or non-matching signatures out of 1,151,371 absentee ballots cast, a rejection rate of 0.28%. The lower rejection rate in the general election compared to the primary is likely the result of both parties attempting to help voters cure their absentee ballots pursuant to the process set forth in Georgia statute.
Georgia law allows absentee voters who have their ballots rejected to “cure” the defect by sending this affidavit to the County Board of Elections within three days of the election.
If the .28% rejection rate from the primary was applied to the general election — prior to “curing” — the number of rejected ballots would be approximately 3700 votes. If the difference between the .14 and .28 rejection rates is attributable to “curing”, then the State should be able to document 1700 such affidavits. Or, more accurately, the individual Counties should be able to document 1700 such affidavits.
And that ASSUMES the “signature matching” requirement was diligently enforced. It would be an interesting statistical analysis to see the rejection rates due to signature mismatches of the individual counties.
Finally, some believe that the fact that the Secretary of State has “certified” the results means the efforts are hopeless. That is not true. The election contest provisions under Georgia law do not come into play until after the result is “certified” — prior to that, there is nothing to “contest” other than an unofficial vote count.
A petition to contest the election must be filed within 5 days of certification of the results and can be filed in any county with jurisdiction. Since this was a statewide election, I believe this means that the Campaign can select any county in the state in which to file their petition, and the trial on the matter will take place before a Superior Court Judge in that County. I’m still looking for confirmation on this issue, so at this point, let’s make that point “tentative”.
Under Georgia Code § 21-2-522, the grounds for challenging the outcome of an election are as follows:
A result of a primary or election may be contested on one or more of the following grounds:
(1) Misconduct, fraud, or irregularity by any primary or election official or officials sufficient to change or place in doubt the result;
(2) When the defendant is ineligible for the nomination or office in dispute;
(3) When illegal votes have been received or legal votes rejected at the polls sufficient to change or place in doubt the result;
(4) For any error in counting the votes or declaring the result of the primary or election, if such error would change the result; or
(5) For any other cause which shows that another was the person legally nominated, elected, or eligible to compete in a run-off primary or election.
This is why the campaign is looking into the legitimacy of the recent registrations by Georgia voters who then cast absentee ballots. If their registration was invalid, then they cast illegal votes.
Ineligible voters who cast ballots are deemed by Georgia law to have cast “illegal votes”. This isn’t a legal brief so I’m not going to cite cases for everyone. But there is case authority in Georgia where voters cast ballots in the wrong district, those votes were declared “illegal” — and those voters were otherwise properly registered.
The Trump campaign will not only need to show that there were 12,500 such unqualified voters, but it will also actually need to show that there were 12,500 such voters who voted for Biden — that is the number necessary to place the outcome in doubt.
The election contest statutes call for a trial on a schedule determined by the Judge who presides over the case. This is exactly what happened in Florida in 2000 — a state court judge conducted a “trial” with witness testimony and evidence within days of the contest being filed because all involved knew the clock was ticking on the meeting of the Electoral College.
The speed with which this will proceed is why the Campaign needs to have all of its evidence together before filing the Petition, which I expect it will do on the last day.
The remedy provided by law is a bit uncertain. Here is what the statute says:
(d) Whenever the court trying a contest shall determine that the primary, election, or runoff is so defective as to the nomination, office, or eligibility in contest as to place in doubt the result of the entire primary, election, or runoff for such nomination, office, or eligibility, such court shall declare the primary, election, or runoff to be invalid with regard to such nomination, office, or eligibility and shall call for a second primary, election, or runoff to be conducted among all of the same candidates who participated in the primary, election, or runoff to fill such nomination or office which was declared invalid and shall set the date for such second primary, election, or runoff.
The statute does not provide that the loser of the election who prevails in the election contest shall be declared the election winner. Rather, the remedy is to void the election results. Since a second election is not possible, that would seem to put the matter in the hands of the Georgia Legislature — controlled by the GOP.
If the Biden victory is proven to have been the result of ineligible votes, there should be no issue with the Georgia Legislature naming electors for Donald Trump.
Buckle up for a wild couple of weeks if the Campaign is able to document 12,500 illegal votes.