Strategies for Winning Election Cases – Part 2

by Atty. Emmanuel S. Tipon

In Part 1 of this article, we discussed the objective of an election case, which is to win; the type of election cases (pre-certification and post-certification); the basic strategies in an election; the need to ask for an injunction to stop the count; which court to file an election case; and what should be contained in a complaint or petition. In Part 2, we will discuss particular election irregularities.

PARTICULAR ELECTION IRREGULARITIES
Election irregularities include fraud which involves illegal acts and non-fraud which does not involve illegal acts.

Election irregularities are either wholesale or retail. Wholesale irregularities will result in a large number of ballots being rejected. Retail irregularities will result in a small number of ballots being rejected.

WHOLESALE IRREGULARITIES
1. Defective or tampered hardware and/or software of electronic voting systems. There are reports that the same Venezuelan voting machine company that has been supplying the machines used in the Philippines in the 2016 and previous elections was the same supplier of voting machines used in many states of the U.S. in the last election. The supplier is said to be “Smartmatic” which is alleged to have rigged elections for a former Venezuelan president. Filipinos have derisively called the voting machines “Switikmatic” (“switik” means to cheat in the Philippine language). Smartmatic’s “precinct count optical scanner (PCOS)” was derisively called by Filipinos “Hocus-PCOS”. Smartmatic rebranded it to “VCM”. Filipinos derided it as “vote cheating machine”. See “Comelec dumbly accepts Smartmatic sly donation” by Jarius Bondoc. http://www.philstar.com/opinion/2016/04/20/1574819/comelec-dumbly-accepts-smartmatic-sly-donation Ferdinand “Bong Bong” Marcos, Jr., who was running for vice-president of the Philippines in 2016, was ahead by one million votes and went to bed happy with the dream that he would be the next vice-president, only to wake up so very sad after he reportedly lost by more than 200,000 votes. Instead of challenging the election returns and preventing the proclamation (certification) of Maria Elena Robredo, his opponent, he inexplicably waited until after Robredo was proclaimed vice president. Marcos then filed an election protest which has been languishing in court since 2016. See Marcos v. Robredo. Before the election, I gave Bong Bong and his wife Liza, a lawyer whom I hired as a professor when I was the Dean of the College of Law of Northwestern University in the Philippines, copies of my book “Winning by Knowing Your Election Laws.”  I wonder if they ever read it?

The same chain of events happened to President Donald Trump. At midnight on November 3, he was ahead by a million votes in 5 states, with at least 600,000 in critical Pennsylvania. Like Marcos, he must have gone to bed smiling. The following day, Trump’s lead evaporated, and the corrupt news network was calling his opponent Joe Biden President-elect. Were Marcos and Trump victims of “Hocus-PCOS”?

2.  Election returns in particular precincts are “contrary to all statistical probabilities” and were obviously manufactured or fabricated.
Wenceslao Rancap Lagumbay, a George Washington University law graduate, ran for Senator of the Philippines in 1965. Election returns showed he was losing to Cesar Climaco. Lagumbay petitioned the Commission on Elections to reject the election returns in about fifty precincts in the island of Mindanao, but his petition was denied. He filed a petition for review with the Philippine Supreme Court. The election returns disclosed uniformly all voters in the precinct voted with 100% in favor of all of the candidates of the Liberal Party and zero for all of the candidates of the other party, the Nacionalista Party, of which Lagumbay was a member.

Climaco’s defense was that these were “controlled votes”. The Court held that the election returns in said precincts were “contrary to all statistical probabilities” and were “obviously manufactured or fabricated.” The Court pointed out that “Such extraordinary coincidence was quite impossible to believe, knowing that the Nacionalista Party had and has a nationwide organization, with branches in every province, and was, in previous years, the party in power in these islands.”

The court concluded that the Commission had the power and duty to reject the returns of the about fifty precincts. Lagumbay v. Comelec and Climaco, G.R. No. L-25444, 01/31/1966.  We knew the old man. After the election he was in a state of lamentation since it appeared that he was losing his senatorial bid. He frequented Malacanang Palace to visit his party-mate President Ferdinand Marcos who had just been inaugurated as President on December 30, 1965. Lagumbay became a very happy man 31 days later after the Philippine Supreme Court invented the doctrine of “statistical improbability” thereby making him win. People have wondered whether Marcos inspired the invention of the doctrine?

3. Election officials or courts changing the election statute.
In Texas v Pennsylvania, Case No. 22O155, the State of Texas sued the States of Pennsylvania, Georgia, Michigan, and Wisconsin, alleging that election officials in each of the defendant states altered or otherwise failed to enforcestate election laws in the conduct of the 2020 election.

The violations of state election law, which is the “manner” the Legislatures of the States have established for choosing presidential electors, violates the Electors Clause of the U.S. Constitution. The number of ballots affected by illegal conduct of state elections officials greatly exceeded the current margin between President Trump and his opponent Joe Biden for the Office of President in each of the respective Defendant States. The four Defendant States collectively have a sufficient number of electoral votes to affect the result of the vote in the Electoral College for the Office of President.

RETAIL IRREGULARITIES
1. Illegal voters voted, including the dead, unqualified, or nonresidents, known as flying voters. 2. Illegal ballots were cast, such as the so-called “Made in China” ballots or fake ballots. 3. Double voting by voters who voted by absentee ballot and then voted at the polling place again.4. Ballot-box stuffing. Submitting multiple ballots cast by the same voters.5. Ballot harvesting. Collecting ballots filled in by voters.6. Voter suppression.

7. Absentee voting irregularities. Ballots were improperly cast, such as fake ballots, unsigned ballot return envelope, missing secrecy envelope, improperly filled in ballot, ballot was filled in by people other than the voter, ballot was not properly placed in the mailing envelope, ballot was not mailed or delivered before the deadline, the voter died after mailing the absentee ballot but before the date of the election, curing ballots by allowing defective mail-in ballots to be cured by calling the voters to cure them. 8. Clerical errors, such as miscounting or noncounting of valid ballots, inaccurate addition of the number of ballots cast for each candidate, and misreporting the totals. 9. Destruction of ballots, such as the ballots from service members who voted for President Trump. 10. Preventing legitimate watchers of the complainant from watching the conduct of the elections and counting of votes while treating differently watchers of the other party. There must be unequal treatment. 11. Terrorism, intimidation, and coercion against election officials and voters, such as what happened in Michigan where people were calling the election board “racists” and giving out their home addresses to intimidate them to certify an election result favorable to the intimidators.

CONCLUSION
Winning election cases requires a thorough knowledge of election law, constitutional law, and hard work.  As pointed out by President John F. Kennedy, my favorite Democrat, whom I met on the campaign trail when I was a student at Yale Law School:“We choose to go to the Moon in this decade and do the other things, not because they are easy, but because they are hard, because that goal will serve to organize and measure the best of our energies and skills, because that challenge is one that we are willing to accept, one we are unwilling to postpone, and one which we intend to win, and the others, too.”

ATTY. EMMANUEL S. 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

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.