PREZ Election Legal Battles: Why Pennsylvania and Michigan May Fall

By Louis M. Manzo November 16, 2020
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“Every vote must be protected from the diluting effect of illegal ballots.”
—SCOTUS
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First, a bit of a primer: An allegation in a court filing is just that—not a fact. Evidence in a court filing, in support of allegations, are not facts. The court determines what is fact after weighing the allegations and evidence. But there is some evidence that a court can declare as fact, without any formal presentation of evidence or argument—this is what is known as judicial notice.
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In filings in Federal District Courts in Pennsylvania and Michigan, the President’s lawyers have argued that their evidence and the law should compel the Court to enjoin the Secretary of State’s Offices in both States from certifying the 2020 election results because of massive fraud in the election process.
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I have spent several days reviewing the filings, some of the evidence referred to by lawyers, and the applicable State laws and sections of the United States Constitution. I have also reviewed select case laws cited in support of the President’s lawyers’ arguments. I have consulted with election and civil rights attorneys.
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The thesis and the supporting Constitutional arguments in Pennsylvania and Michigan are the same. Similar filings in other States will be made over the course the next several days. All it takes is for one District Court to rule in favor of the President’s argument and it is almost a guarantee that the other cases land in the Supreme Court on appeal, from one litigant’s side or the other. Read on to find out why there is a better than fifty-percent likelihood that the President’s argument will succeed.
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Let’s take a look inside the Pennsylvania lawsuit to see what will likely be ripe for judicial notice and use in deciding the case: The United States Constitution. The election laws of Pennsylvania as enacted by their General Assembly. Written election edicts drafted by Secretary of State Kathy Boockvar to the Pennsylvania election boards. The tabulation of ballots broken down by the Secretary of State—in-person, mail-in, absentee, and the segregated ballots ordered by SCOTUS. Previous court decisions on the matter. Findings and reports from professional studies and investigative bodies.
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There are hundreds of witnesses who will attest to their observations about election fraud. But there is one witness whose testimony will matter the most. The star witness of this trial. That would be Secretary of State Kathy Boockvar. Her testimony could provide the court with enough information for them to make a determination and then rule. Remember that name, Kathy Boockvar, she is about to become the eye at the center of this election challenge hurricane.
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At least 2.6M of the 6.75M votes cast in the Pennsylvania 2020 election were either mail-in or absentee. An often-cited study by SCOTUS in election law cases is a PEW Research report that found “approximately 24M—one of every eight—voter registrations in the United States are significantly inaccurate. More than 1.8M deceased individuals are listed as voters. Approximately 2.75M people have registrations in more than one state.”
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Another report extensively cited by SCOTUS is from the Commission on Federal Election Reform—a bipartisan commission chaired by Former President Jimmy Carter and Former Secretary of State James Baker III. Two pertinent conclusions of that Commission are that “the “electoral system cannot inspire public confidence if no safeguards exist to deter or detect fraud or to confirm the identity of voters,” and that “mail-in voting is the largest source of potential voter fraud.”
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The Pennsylvania Auditor General cited tens of thousands of inaccurate voting records in the Commonwealth, and criticized the Secretary of State for her lack of cooperation during an audit.
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The United States Constitution’s Election Clause directs and empowers States to determine the “Times, Places, and Manner” of congressional elections, subject to Congress’s authority to “make or alter” State regulations. It grants each level of government the authority to enact a complete code for such elections; including rules concerning public notices, voter registration, voter protection, fraud prevention, vote counting, and determination of election results. Whenever a State enacts a law relating to a Federal election, it is exercising power under the Elections Clause; States do not have any inherent authority to enact such measures.
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In October of 2019, under the express authority given them by the Constitution’s Election Clause, the Pennsylvania General Assembly passed Act 77—laws revising their State’s election laws. Act 77 introduced mail-in voting to the Commonwealth. In the Act were written the laws that would govern the process. Among those laws: signature requirements, identification and balloting protocols, handling requirements, tabulation and election observer regulations, and timeframes for acceptance.
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Over the course of the past summer, the Governor of Pennsylvania, Tom Wolf, and Secretary of State Boockvar rewrote the election laws of the Pennsylvania General Assembly. They did so under the guise of the Governor’s Emergency Orders to deal with COVID-19. Boockvar dispatched a directive to the Commonwealth’s Election Board directing them to comply with her new laws.
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No one has yet provided the science for supporting how the usurping of the election statutes protects anyone from COVID-19—especially, not requiring signature verifications on ballots. The established authority by the Constitution, Pennsylvania’s General Assembly, saw no reason to change the laws, nor did the Governor or Secretary of State ask them. [This same scenario played out in other States where litigation is pending.]

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The General Assembly of Pennsylvania took Boockvar to Court—opposing her authority to change the laws for the 2020 election because of the federal implication. The Pennsylvania Supreme Court supported some of Boockvar’s rules and disqualified others. Of importance, the Court upheld the change of timeframes for the mail-in ballots—allowing their acceptance for up to three days after the election.
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More importantly, the Commonwealth’s highest court rejected Boockvar’s attempt to waive voting integrity laws that the legislature put in place to guard against fraud. Regarding the Secretary of State’s attempt to count ballots rendered illegal by law, one of many instances, Pennsylvania’s Supreme Court declared, “the secrecy provision language in Election Code is mandatory and the mail-in elector’s failure to comply with such requisite by enclosing the ballot in the secrecy envelope renders the ballot invalid.”
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But obviously exhilarated by the Court’s decision to approve her authority for rewriting the ballot timeframe law, Boockvar decided to take the Constitution out for a joyride, ignoring the edict of the Commonwealth Supreme Court. Subsequently, ballots the legislature and Court declared invalid were accepted and tallied.
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The Pennsylvania Court’s decision was appealed to SCOTUS. The opposing litigants both asked SCOTUS to expedite the case before the election, because the consequences of hearing these grave matters, post-election, could wreak havoc. Talk about foresight.
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Would SCOTUS punt? …Worse! Chief Justice John Roberts opted to quick kick the case out of Court. Roberts sided with the three Justices opposed to expediting the matter and forced a 4-4 split. SCOTUS left the door open to hear the case post-election, now they have their worst nightmare.
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This ruling was like amphetamines for Boockvar—she continued issuing guidance to Election Boards in direct contradiction of the Election Code. On November 1, 2020, Secretary Boockvar, with no authority to do so, extended the Election Code’s mandatory deadline for voters to resolve proof of identification issues with their mail-in and absentee ballots. Effectively, potentially invalidating every vote cast under the illegal protocols.
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Boockvar is a mass, serial disenfranchise slayer of voters.
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Beyond the facts established by judicial notice, there is strong evidence that under Boockvar’s guidance, two standards of election protocols were established—one set for Philadelphia County and Pittsburgh, and one for the rest of the State. The very core of the Gore v. Bush SCOTUS ruling.
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Boockvar also stood down when Republican challengers were prohibited access to observe ballot processing, contrary to Pennsylvania law. Their counterpart Democrat challengers were granted access. “I do believe that there is voter fraud taking place in these places,” Chairman of the Federal Election Commission Trey Trainor said. “Otherwise they would allow the observers to go in.” Just yesterday, a Philadelphia Appellate Court upheld the law and ORDERED the challengers to have access.
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This is now more judicial notice that will not help Boockvar’s cause in the Federal District Court.
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Slowly and steadily, Pennsylvania Governor Tom Wolf is stealthily creeping away from this mess. Happy to have the spotlight shine on Pennsylvania’s ditzy Secretary of State. Boockvar might not have figured it out yet, but when you know what hits the fan, she’ll become the fall gal. She’s about to get hit with the preverbal “ten tons of bricks.”
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Make book that after SCOTUS calls out her conduct, the Pennsylvania General Assembly will have its revenge for her flouting their laws and disenfranchising Commonwealth voters—she will face impeachment.
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The conditions in Pennsylvania and Michigan are the same. In their filings, the President’s lawyers claim to have identified more than enough illegal ballots to demonstrate that their impact is sufficient to alter the outcome of both State’s elections.
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Perhaps, Justice Alito’s cryptic words, from his initial argument for SCOTUS to hear the case, gives insight for why Pennsylvania and Michigan may fall:
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“There is a strong likelihood that the [Pennsylvania] State Supreme Court decision violates the Federal Constitution. The provisions of the Federal Constitution conferring on state legislatures, not state courts, the authority to make rules governing federal elections would be meaningless if a state court could override the rules adopted by the legislature simply by claiming that a state constitutional provision gave the courts the authority to make whatever rules it thought appropriate for the conduct of a fair election.”
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To let the conduct stand would allow our election process to descend into chaos. Whose law matters in an election? The legislature, the Governor’s, the Secretaries of State, or the State Court’s. If SCOTUS allows things to stand than the answer remains—all of the above. I can’t forecast the remedy yet, but I’ll guarantee SCOTUS will uphold the Constitution.
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Look for SCOTUS to uphold the Constitution 6-3. Newly installed Justice Amy Coney Barrett breaks the tie. Chief Justice John Roberts is not going to have his name missing from one of SCOTUS’s most significant and historical rulings—he switches his vote to author the majority opinion.
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But it’s the Court’s remedy that is just as crucial. After SCOTUS grants certiorari, we’ll explore the remedy options and make a forecast.
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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.
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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].