Strategies for winning election cases – Part 1

by Emmanuel S. Tipon

Hold the applause: “It ain’t over ‘till the fat lady sings.” Opera lovers’ famous quotes.

“God sees the truth [with the aid of an excellent lawyer], but waits.” Tolstoy

“Most election cases are lost because of lawyer incompetence.” Emmanuel Samonte Tipon

“An election case is not a Hail Mary pass. An election case costs money. A Hail Mary pass does not.” –  Emmanuel Samonte Tipon

“Joe, don’t concede under any circumstances.” Hillary Clinton, anticipating Joe Biden would lose. The same should apply to President Trump who is reported to be losing. “What is sauce for the goose is sauce for the gander.”

FULL DISCLOSURE
: I met Donald Trump before he became President. He is not a racist. He shook hands with a brown monkey.  I knew Nancy Pelosi before she was a congresswoman. She is a nice person. She prays for Donald Trump. But “don’t mess with Nancy.” I have given to both of them.

Election law “experts” have sprouted like mushrooms after a sudden summer rain. They have not written a book on election law. They have not even written a paragraph on election law. The sole objective of an election case is to win. Okay, to seek the truth. It is not intended to save face as in the Philippines. Fuera de los buenos.

Types of election cases
. A pre-certification (pre-proclamation) controversy and a full-blown election contest after the ballots have been counted and a candidate is certified (proclaimed).

Basic strategies in an election
. Grab the certification. Delay the protest. If your opponent has grabbed the certification, file a petition to annul the certification or to suspend the effects of the certification. If you are ahead, stop the count. If you are behind, ask for a recount.

Impound election paraphernalia
. Complainant should ask the court to impound all election paraphernalia used in the challenged precincts including, voters’ list, ballots, tally sheets, returns, and most importantly voting machines, and to store them in a place where they can be safeguarded and watched by representatives of all candidates involved.

Injunction
. Complainant should ask for a temporary restraining order (TRO) or preliminary injunction (PI) if complainant wants to stop the count immediately, or a preliminary mandatory injunction if complainant wants a recount immediately. 

Which court to file?
Complainant’s chances are definitely better if complainant files with a court where the judge was appointed by the same party as the complainant. If complainant is in a court whose judge is sympathetic to the other party, create as many grounds as possible for a reversal of an expected judgment against complainant. Or file another case with a neutral judge.

Complaint or Petition. The complaint or petition should:

A. Describe in its first paragraph what the case is all about so that the judge will have a frame of reference in understanding the other allegations.

B. State the names of the parties. They must be proper parties. The plaintiff must have standing to sue. The candidate who is losing is the proper party, not the candidate’s campaign committee. Other individuals who were aggrieved by election irregularities should file their own complaint or petition, not join with the candidate’s action.

The defendants must include the election official who oversees the elections whose conduct resulted in the election irregularity, the election office handling election proceedings that actually caused the injuries complained of, election officials who may have participated in the election irregularities, the complainant’s opponent in order to make the decision binding on him/her as a party litigant, even if there is no evidence that he/she personally committed an election misconduct, and John Does 1-100 who may have participated in the election irregularities.

C. Allege that the complainant is eligible for the position in question and that he duly filed his certificate of candidacy and that the opponent also filed a certificate of candidacy.

D. Allege that the court has jurisdiction, and that the venue is proper, citing the basis thereof.

E. Allege that the complaint is timely filed.

F. State a claim upon which relief may be granted. Allege the gravamen of the election offense or cause of action which should be stated with sufficient specificity and not threadbare recitals of the elements of the cause of action with conclusory statements. It should not simply track the language of the statute. To survive a motion to dismiss, the complaint must allege sufficient facts, which if accepted as true, states a claim that is plausible on its face, that is that there is misconduct and that the defendants are responsible for it.

G. Allege that the valid ballots cannot be segregated from the invalid ballots and therefore all ballots in the particular precinct should be disregarded.

H. Specify constitutional violations such as deprivation of due process and denial of the equal protection of the laws so that the complainant can go to the Supreme Court.

I. Allege that the irregularities affected the result of the election in that without such irregularities the result would have been different and that it would have been in favor of the complainant.

J. Allege that the complainant suffered or will suffer prejudice and that the outcome of the election would be significantly different and that the complainant would win if not for these election irregularities.

K. State the relief requested which must be closely tailored to redress the injury. If the result has not been certified, it should ask that the ballots be recounted or that the injury complained of be cured. If the result has been certified, it should ask that the certified result of the election be set aside or the effect of the certification be suspended, a recount be made, and that the complainant be declared the winner of the election. It should also ask for damages.

L. The complaint should be verified.

Amended or supplemental complaint. If the complaint is defective or insufficient, complainant should file an amended or supplemental complaint.

Evidence. While it is helpful to have evidence, such as affidavits, to support the complaint or petition, it is generally not required to have such evidence attached to the complaint or petition at the time of filing. Evidence can be submitted at the hearing.

Discovery. Complainant should file a motion requesting the court to order expedited discovery so that counsel can gather evidence quickly.

Brief. Complainant should submit a pre-trial brief before the hearing so that the court will know what counsel will address at the hearing.

Hearing. Counsel for the complainant should be fully prepared for the hearing, with supporting affidavits, depositions, other evidence, and witnesses to establish the allegations of the complaint with the required standard of proof.

Decision. If complainant lost, his counsel should analyze the decision very carefully. Counsel should ask another lawyer who knows election law to review it from the prism of a disinterested observer.

Motion for reopening or rehearing. If the decision is unfavorable to complainant, counsel should explain the decision to him and tell him what the chances are of obtaining a new decision via reopening or rehearing.

Appeal. If complainant is unsuccessful in the motion for reopening or rehearing, complainant should file an appeal all the way to the Supreme Court.

Article to be continued on “Particular Election Irregularities Part 2.” The information provided in this article is not legal advice. Publication of this information is not intended to create, and receipt by you does not constitute, an attorney-client relationship.

ATTY. EMMANUEL SAMONTE TIPON was a Fulbright and Smith-Mundt scholar to Yale Law School where he obtained a Master of Laws degree specializing in Constitutional Law. He has a Bachelor of Laws degree from the University of the Philippines. He is admitted to practice before the U.S. Supreme Court, New York, and the Philippines. He practices federal law, with emphasis on immigration law and appellate federal criminal defense. He was the Dean and a Professor of Law of the College of Law, Northwestern University, Philippines. He writes law books and legal articles for Thomson-Reuters and writes columns for newspapers. He wrote the best-seller “Knowing by Knowing Your Election Laws.” Listen to The Tipon Report which he co-hosts with his son Noel, the senior partner of the Bilecki & Tipon Law Firm. It is considered the most witty, interesting, and useful radio show in Hawaii. KNDI 1270 AM band every Thursday at 8:00 a.m.  Atty. Tipon was born in Laoag City, Philippines. Tel. (808) 800-7856. Cell Phone (808) 225-2645.  E-Mail: filamlaw@yahoo.com. Websites: https://www.tiponlaw.com , https://www.hawaiianimmigrationattorney.com


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