Posted on 12/04/2020 5:01:20 PM PST by Coronal
Thanks for link, will check out later. Its going to be an interesting 2 months to say the least
One more thought. The Trump team claims they have physical proof that voting machines switched votes, but so far no judge has seen that evidence yet? If so, and they still refused to suspend certification, then it seems that would be failure to do their duty as Judge, unless there was not enough vote switching to change the election results to. Iden? But how could judge know that unless they suspended cert and had investigators look I no it?
Oh well, as you said, well see bow it goes
OK. Let me give you my best analysis:
===> One more thought. The Trump team claims they have physical proof that voting machines switched votes, but so far no judge has seen that evidence yet?
I have not seen solid evidence of vote switching anywhere. Dominion says their machine generates a paper ballot for each vote, and the ballots match the electronic tally. They also say the machines are “air gapped” : while they are working, they are not connected to the internet.
I read the declaration of Hamid Keshavarz-Nia, who is apparently a dual doctor (EDD/Phd) and knows a lot about these things. But his declaration has holes. Just because a 7-year old version of a machine had flaws does not mean the current version does. Think of your iPhone operating system. They keep updating that every 2-3 months.
Keshavarz-Nia’s declaration also clearly says he has NOT examined the actual machines.
===> I’d be interested in your thoughts on the following - which I’ve posted on some other threads. TIA.
“At what point do the Republican Secretaries of State and Attorneys General in the states that POTUS won, file federal law suits presenting the cumulative evidence of fraud across the various contested states as violations of the 14th Amendment, and dilution and disenfranchisement of their citizens? Why not now and why not give it a try?
The problem is that the Constitution clearly gives the STATES the right to pick electors. Some states allow felons to vote. Some don’t. In theory, a state could pass a law, allowing incarcerated felons and 17 year-olds to vote. The Constitution would not forbid that.
So the fact that a law-abiding citizen in Idaho gets his vote diluted because a felon in Florida got a vote is not a Constitutional issue.
===> “I blame Rudy.”
You mean you believe the judge? The judge will sniff around for a reason to reject the suit, no matter what Giulani does.
I must have pored through a dozen written opinions – trial courts and appeals courts, Federal and state. Generally, the opinions were well-reasoned. The remedy sought here is unprecedented. And it is being sought without a proper trial. So the legal team must present an air-tight case, and that just has not been happening. When they fail to timely file their appellate papers, a judge has NOTHING in front of him to issue a ruling.
As I pore through these opinions and declarations, the conclusion I reach is:
- Why now? Why weren’t these issues addressed before?
- Take PA’s process. They did NOT have universal mail-in voting. They had a very strict absentee voting procedure, and there were only 4 categories available. If you did not fit in one of those categories (I think it was military, students, business people … you get the picture) then you HAD to vote in person. They then expanded those 4 categories to anyone and everyone. They called it “universal mail-in voting.”
Why was this allowed to happen?
Also, why did McConnell refuse to EVEN DEBATE a single election security bill?
As DJT said, America is the bank everyone wants to rob. Very correct. We have a $25 trillion economy, which can be hijacked by any foreign actor who can skillfully commandeer an election.
Why did we allow this to happen?
====> With that in mind, is there a legal, constitutional path through the courts to deal with this obvious and massive, coordinated election fraud/theft?
The problem is, the Constitution gives states almost total discretion in running elections. So long as states respect Amendments 15, 19, 24, and 26 are followed, theyrun the show. They can make voting easy or difficult, as long as the law affects everyone equally.
Also, in Fed court, there is the concept of “standing.” Fed courts only adjudicate an actual case or controversy. They do not issue advisory opinions, because doing so is legislating from the bench, and a violation of our Republican system.
So, in order to have Federal jurisdiction, there needs to be an actual case or controversy, and the plaintiff needs to show an actual harm that is capable of judicial remedy. That’s the “standing” requirement. So if a state law abridges a Hindu’s right to worship Vishnu, I have no standing to sue.
So if your voted was counted, you generally don’t have standing.
Sorry about the rambling response. That is the best I can give you given what I know now.
===> The PA Supreme Court ruled, BEFORE the election, that a cure of defective ballots is NOT prohibited.
________________________________________
Is that actually correct that they ruled before the election? I recall the ruling coming out after the election, in one of the post-election cases.
Having read so many opinions, I am mixing them up now. But here is my best recollection of the PA issue:
1- BEFORE the election, the PA Supreme Court left the door open for curing defective mail-in ballots. So, as the ballots started coming in, the Rat counties reached out to the voters and offered them a chance to cure. The GOP counties did not. By election day, most defective mail-in ballots in Rat counties were cured, and therefore counted.
This is a basis for the argument for violation of “equal protection” clause.
2- Also BEFORE the election, the PA Supreme Court EXTENDED the deadline for receipt of ballots, beyond the deadline imposed by the state legislature.
This is a basis for “Republican government” clause.
Both of these are non-frivolous Constitutional questions. The first issue was already litigated and lost. My recollection is that SCOTUS declined to hear the case. My understanding is that the second issue is live. But the second issue affects only a few thousand late ballots, not enough to flip PA.
Fed Rule of Evidence 801 defines hearsay, which is basically the same concept in all states. HOWEVER, there is Fed Rule of Evidence 807 which provides a “catch all” exception to the hearsay rule. Most states DO NOT have a similar “catch all” provision.
Anyway ...
A statement made by a declarant outside the current trial or hearing is the classic definition of hearsay, as recognized in Fed Courts as well as all state courts.
The affidavit is a piece of paper containing a statement made by a declarant outside the proceeding.
Most people find this stuff boring. But if you are interested, you can google Fed Rule of Evidence 801, as well as 803, which has a list of exceptions. You can also google Fed Rule of Civil Procedure 32, which allows deposition transcripts to be introduced if certain conditions are met.
Most state evidence codes have enacted a scheme that generally matches the Federal Rules of Evidence.
You don’t necessarily need the declarant in the proceeding. You can just take their deposition under oath and submit the deposition transcript. A deposition is different from an affidavit because (1) it is live Q&A, rather than a document drafted by a lawyer, and (2) opposing counsel can cross-examine the witness.
In the Nevada case, the judge gave parties a deadline to give notice of deposition. Plaintiffs’ notice was 2 days late. Nonetheless, they took 8 depositions and submitted transcripts. They judge had allowed up to 15.
Out of court expert opinions, etc., are all hearsay, although you might be able to find a hearsay exception - for example, research papers, official records, etc.
At the end of the day, as I read these opinions and court pleadings, the only conclusion I reach is: “This is grossly mismanaged. If team DJT wanted to dispute these election procedures, the time to do it was BEFORE the election.”
Indeed, several courts pointed out that you can’t let these election procedures be enacted, and then wait until the election, and if you don’t like the outcome, go running to court and challenge the procedures. Millions of people voted using these procedures, and their votes can’t be tossed.
McConnell should have aggressively pushed for Federalized, uniform election security measures.
Lawsuits challenging universal mail-in ballots, and use of dubious computerized vote counting machines, should have been fully litigated BEFORE the election.
Additionally, either by legislative lobby or litigation, clear oversight procedures should have been put into place.
McConnel should have enacted Federalized, uniform election security protocols.
Robbing a bank is illegal. However, what if the legislature passed a law that says “writing a check against insufficient funds is NOT a crime, and shall be construed as a loan payable in 2 years at 5% APR.” Then, if a year later, two million people attempted to use this law to write themselves a loan, can you prosecute them?
Also, as I read the court pleadings, I am beginning to think the cases are not just weak procedurally, but also, substantively. But I don’t want to talk about that here, because I don’t want to give any ideas to the wrong peole.
Maybe when this whole thing is over, I will write more extensively of the glaring substantive weaknesses in some of these cases.
-—> Better late (now) than never!
Well, if “late” means “too late,” then ... “late” and “never” are basically the same.
-—> A better analogy would be if 2MM tried to write their own checks, but they were delayed to see if they’d be denied or cashed.
If the new law entitled everyone to write themselves a loan, that is a Constitutionally-guaranteed right to property (5th Amendment). The right to vote is also Constitutionally guaranteed.
So, we’re seeking to take away a Constitutionally-guaranteed right from people without showing fraud or malfeasance. We’re talking about people who followed a law that was duly passed by legislature and signed by the governor. That is a hard sell.
-—> I don’t know. For all the stuff in the news (FR and OAN), it seems to me there’s a lot of irrefutable evidence. And that’s just what’s out in public, they should have a lot more from investigations and whatnot.
As a lawyer, as I read these affidavits and these motions, I think to myself “if an opposing counsel was throwing this stuff at me, I could blow it out of the water with the greatest of ease.”
And that is what is happening. Spelling errors. Non-existent locations. Mismatched locations. And lots and lots of affidavits lacking foundation.
It all goes back to what I said earlier. The election is held in November, and in January, the new POTUS is sworn in. Two months is an AWFULLY short period of time to investigate, locate and interview witnesses, then weave it all together into coherent, well-written and well-reasoned briefs.
——> There’s no way a guy with mid-stage dementia who gets ten people per rally actually managed to beat Trump massively in only a few cities to win overall?
I don’t want to comment because I don’t want to give any ideas to the bad guys who may be reading this.
There are lots of arguments being made to overturn the “election.” Some are based on facts (fraud) and some on law.
I am talking about the biggest state, PA, and the biggest argument. DJT’s BIGGEST weapon. There is an argument seeking to disallow ALL of the mail-in votes in PA. Not just the ones that were late. Not just the ones cast by dead people. Not just the ones that were not monitored properly. Not just the ones that were dropped off under suspicious circumstances. An argument is made that EVERY SINGLE mail-in ballot in PA should be disallowed.
The basis of the argument: The PA legislature enacted universal mail-in ballots, and the PA governor passed it. But the law should have been implemented by amending PA Constitution. Since that did not happen, the law was void, and all votes are void.
There is another argument attacking the ballots that were late under a plain reading of PA statute. The deadline was extended by judicial decree. That is a different argument, and one that clearly raises a Federal Constitutional question, and therefore may well be heard by SCOTUS. But the number of votes there are not enough to overturn the PA results.
Let’s not confuse these arguments. The first argument is powerful, but a tough, tough sell. The counter-argument is: GOP had a WHOLE YEAR to attack this law. They didn’t. In fact, THEY PASSED IT! Now, when DJT lost the state, the very party that PASSED the law is attacking it, stripping millions of law-abiding citizens of their Constitutionally-guaranteed right to vote.
It should NOT have gotten to this. I can’t think of any other context where we would support a party that passes a questionable law to come in and strip Constitutionally-guaranteed rights from citizens who followed that law.
It should NOT have gotten to this.
I guess SCOTUS declined to hear this issue.
Based on existing precedent, this was a question of state law which had already been ruled upon by the state Supreme Court. So, under existing precedent, no Federal issue was raised.
But a fellow FR member pointed out that there were 3 SCOUTS justices who wrote a minority opinion in Bush v Gore, which, if adopted by a majority, could lead to a Constitutional question.
Anyway ... although at this point it is a done deal, I will try to find the SCOTUS opinion declining the case.
You are correct about the PASC opinion. When the defense of latches is established, the court does not look at the merits of the case.
This is how it should be. If the case is not live, any ruling on the merits is simply issuing an advisory opinion, which is legislating from the bench. This violates our Republican principles of separation of powers.
The TX lawsuit did, I think, as one cause of action, allege this issue, so maybe SCOTUS wanted a single lawsuit to cover all cases.
Again, as I’ve said elsewhere, it should have NEVER gotten to this. PA should have NEVER been allowed to pass a universal mail-in ballot. And McConnell should have pushed through a robust election security bill.
It is also my understanding that despite Alioto’s order, the tardy ballots were mixed in with others. However, the number of ballots there are not enough to change the election result. So the remedy is not to invalidate the election. The remedy is to bring contempt of court proceedings against the people who violated the SCOTUS’ order.
Also, we are arguing that PASC’s order extending the deadline was unconstitutional. But that is an argument, it has not been established. The counterpoint is: Constitution Article II mandates state legislators to pick electors. But under our Republican system, legislatures routinely delegate their powers to executive branch, (I can give examples later) and also, judicial branch is within its power to interpret state law.
As far as the PA universal mail-in ballot law violating PA Constitution and therefore tossing 3 million votes: First, I disagree that there is “No Constitutional Right to vote.” The Constitution originally granted states broad rights in running elections. But in 20th Century, we enacted 4 Constitutional Amendments protecting citizens’ right to vote. Plus, there is a whole body of law case law recognizing that Constitutional right.
Latches is a well-recognized defense, and goes back to this nation’s roots in British common law. It is an equitable, rather than legal defense. (Again, I can elaborate on this, and explain why it matters)
An unconstitutional law should be challenged, and QUICKLY. Delay can be construed as a waiver. As we all know, you can waive your constitutional protections. That’s why cops read defendants their rights, so they can solicit a waiver of that right. Also, as SCOTUS has ruled, your 7th Amendment right to civil jury trial can be waived if you sign an arbitration agreement.
Reversal of the “separate but equal” laws did not divest innocent citizens of any constitutionally-guaranteed rights.
BTW, while I think you are correct that the statute of limitations on overturning an unconstitutional law is infinite, the SCPA rejected this challenge, not based on defense of statute of limitations, but based on defense of latches.
The two are different. One is a legal defense, the other is an equitable defense. Again, I can elaborate later.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.