CALIFORNIA CONDUCTED A FATALLY FLAWED ELECTION
IN AT LEAST 53 COUNTIES OF ITS 58 COUNTIES
by Markham Robinson, January 4, 2021,1:34 PM. 707-448-7062
SUMMARY
The right to cast a lawful ballot in the General Election of 2020 was denied to almost all California voters because of fatal flaws in the Voter Instructions at the top of the ballot. One reason these flaws are “fatal” is because the California Elections Code mandates that ballots lacking specific voting instructions that explain the true nature of a “vote for President and Vice-President” “shall not be cast nor counted at any election.” [Emphasis added]
Such lawfully uncastable and uncountable ballots were both unlawfully cast and unlawfully counted in defiance of a clear legislative mandate to the contrary.
That clear prohibition about casting and counting “at any election” means that none of the “elections” contained in the fatally flawed ballots should be counted or cast. It’s the ballots that are not lawfully castable nor countable and all the multiple contests thereon and their counts which are void. Those elections include not only the one for Electors for President and Vice-President whose voting instructions were fatally flawed, but also for Congressional Representatives, State Senators, and Assemblymen leaving California’s legislature without a lower house and half of its State Senators.
This document will show fatal flaws in ballots based on the omission of necessary voting instructions for the Presidential election. The prohibition of casting or counting also applies to votes in other elections on the same ballot, namely the election for the House of Representatives and reduces by Section 2 of the 14th Article of Amendment California’s entitlement to representation in the House of Representatives to its Constitutional minimum of one.
California alone among the States is incapable of exercising its appointment power for the aforesaid Electors in lieu of the voters, since they do not have a legitimately functioning legislature until they hold elections for the State Legislature over again. Moreover they may not have any representatives in the House until they hold a special election for their lone Representative.
The United States Constitution grants complete control of the appointment of Electors for President and Vice-President to the State legislature. Its statutes in this regard are not even properly subject to an executive veto. Even if this conflicts with State law or the State Constitution, the Supremacy clause of the United States Constitution overrides them. No Court may change the manner of this appointment which is the sole prerogative of the State legislature. State legislatures have the right and duty to call themselves into session to appoint Electors for President and Vice-President, if that task falls to them, their ordinary means of accomplishing having failed.
What Courts at both the State and Federal levels must do is enforce said manner of appointment within the scope of their authority.
The relief that the plaintiffs seek is fivefold: namely:
First, that the appropriate State executive officers be mandated to rescind California’s certification of the votes of the Electors for President and Vice-President, unlawfully selected on November 3, 2020, and communicate the same to the United States Congress and to the Electors unlawfully selected, and that the appropriate State executive officer or officers send to the United States Congress notice of the unlawful character of such votes, and
Second, that California’s November 3, 2020, election of members of the House of Representatives be declared null and void and that a special election be ordered for the single Representative to the House of Representatives to which California is now entitled given the almost 100% denial of a lawful vote to all registered California citizens, according to Section 2 of the Fourteenth Amendment, and
Third, that the election of all of the members of the California State Assembly that occurred on November 3, 2020, be declared null and void and that a special election be ordered for each Assembly district, and
Fourth, that the election of all of the members of the California State Senate who were putatively elected on November 3, 2020, be declared null and void and that a special election be ordered for each such State Senate seat, and
Fifth, that consequent upon the denial of a lawful vote for Electors for President and Vice-President on November 3, 2020, and the provisions of the Fourteenth Amendment to the United States Constitution in its Second Section, that California’s Congressional representation in the House of Representatives, be reduced in proportion to the relevant denial of a lawful vote to the class of persons specified therein for said Electors, except that according to Article 1 Section 2, 5th clause, “each State shall have at least one Representative.”
A decertification of the aforesaid Electors will mean that 55 “Electoral College” votes will be deducted from the putative “President Elect and Vice-President Elect’s” total, claimed to be 306. This lowers that claimed figure to 251, well-below the required 270 necessary for election to President and Vice-President. The failure to achieve a majority of the “Electoral College” invokes the Constitutional provision for selection of the President and Vice-President by the House of Representatives and the United States Senate, respectively. (Even if the 270 majority of the Electoral College were to be reduced because California’s Electors were held not to have been appointed in any sense, the successful challenge of any of the other States’ Electoral Colleges would be sufficient to prevent the Biden ticket’s election by the Electoral College.)
Moreover, given the approximately 99.5% plus denial of said right of California registered voters, such proportionate reduction would result in zero representation in the House of Representatives for California according to the 14th Amendment’s Section 2. However what would otherwise be zero representation according to the Fourteenth Amendment Section 2 would according the Article 1 Section 2 5th clause one Representative since “each State shall have at least one Representative”
The first part of this relief would be appropriate at the State level and the Federal Level.
The second part of this relief is unique to the Federal level, seeing that a State may not be a judge in its own case as regards its Congressional representation which may be addressed both by the Supreme Court and by the House of Representatives in execution of its own body’s rules. If this matter comes to the Supreme Court of the United States as a matter of its original jurisdiction, unlike other cases falling under the Court’s jurisdiction which may be taken up for consideration at its discretion, its consideration by the Court in matters involving representation in the States is mandatory because of the obligation in Article 4, Section 4 of the United States Constitution of the United States to guarantee to each and every State a “republican form of government.”
However, the Federal relief sought is a harm to the voters of California for which there is no legitimate relief. The Constitutional provision for reduction of Congressional representation for the State for a denial of a lawful vote to its citizens must be enforced or we can no longer pretend to be a Constitutional Republic. How long such a deprivation should persist the Constitution does not say, but we will seek that it last until the next General Election for Electors for President and Vice President is held in such manner that the voters are not disenfranchised.
The political result of the first part of the sought relief would likely be the selection of President Trump as President for the next Presidential term. In the new Congress there are an estimated 27 Congressional delegation votes for the incumbent, one more than the minimum 26 required for the election of the President. Since at worst the Republicans will have 50 votes in the Senate, and the Vice President may cast the deciding vote in case of a tie, if he votes for himself, Vice President Pence will re-elect himself!
The political result of the second part of the sought relief would be a vote reduction in the Democratic Caucus and allied Independents of 31 and in the Republican Caucus a vote reduction of 11 (minimum 1 Representative, no doubt a Democrat). That is a net shift of 30 in the favor of the Republican Caucus, more than that needed to overcome the expected Democratic majority. The likely result of this is selection of a Republican as House Speaker and with it control of the legislative agenda in the House and control of all Committee and Subcommittee chairmanships.
The Constitution of the United States gives the power and responsibility of appointing Electors for President and Vice-President to each State Legislature as shown in the Constitutional text below:
California, as have the other States, has chosen to delegate this power of appointment to the voters of the State by means of an election by ballot of the registered voters of the State, making their choice the legislature’s choice. California has very particular, high standards for these ballots, some of which it deemed so vital that it decreed that ballots not printed in accordance with them “shall not be cast nor counted at any election. [Emphasis added]”
Moreover, the State Legislature largely decentralized responsibility for determination of the format of said ballots to the County Elections Officials of its 58 Counties making the role of the California Secretary of State’s Elections Division in this matter mostly advisory. The Secretary of State embodies his advice in what are called CCROV (County Clerks & Registrars of Voters) advisories. CCROV’s—no matter how expert they might be and worthy of respect—do not command obedience. Regulations issued by the Secretary of State, by contrast, governing electoral matters do require compliance by the County Registrars of Voters. However, individual Registrars of Voters have the power and responsibility of deciding whether a State or Federal law or the State or Federal Constitutions override them. Below find the link to the CCROV Advisories:
https://www.sos.ca.gov/elections/advisories-county-elections-officials .
The particular provisions to which we beg to draw the Court’s attention are the following:
Elections Code DIVISION 13. BALLOTS, SAMPLE BALLOTS, AND VOTER PAMPHLETS [13000 - 13502] ( Division 13 enacted by Stats. 1994, Ch. 920, Sec. 2. ) CHAPTER 3. Ballot Printing Specifications [13200 - 13282] ( Chapter 3 enacted by Stats. 1994, Ch. 920, Sec. 2. ) ARTICLE 1. General Provisions [13200 - 13220] ( Article 1 enacted by Stats. 1994, Ch. 920, Sec. 2. )
Or, more tersely put, draw its attention to some parts of Elections Code Chapter 3 Ballot Printing Specifications [13200 – 13282] which we will cite below.
The severe, Legislature-mandated consequence of failure to follow any of the standards of Division 13, Chapter 3, Ballot Printing Specifications, is stated quite plainly in the Elections Code Section cited below:
Ballots not printed in accordance with this chapter [Chapter 3] shall not be cast nor counted at any election. [Emphasis added]
(Enacted by Stats. 1994, Ch. 920, Sec. 2.)
We are challenging all of the ballots for 53 of California’s 58 Counties, save 5, viz.: Inyo County, Kern County, Santa Barbara County, Nevada County and Alpine County, on the basis of failure to comply with Elections Code Section 13205 (b) which you will find immediately below:
(b) In elections when electors of President and Vice President of the United States are to be chosen, there shall be placed upon the ballot, in addition to the instructions to voters as provided in this chapter, an instruction as follows:
“To vote for all of the electors of a party, mark the voting target next to the names of the presidential and vice presidential candidates of that party. A mark of the voting target next to the name of a party and its presidential and vice presidential candidate is a vote for all of the electors of that party, but for no other candidates.”
(Minor typographical edits in accord with AB 623 amending this section have been applied.)
The vast majority of votes cast in the Presidential contest in the State of California were cast possibly in ignorance of the fact that their vote “is a vote for all of the electors of that party,” but “for no other candidates” i.e. IT IS NOT A VOTE FOR THE NOMINEES OF THE PARTY FOR PRESIDENT AND VICE-PRESIDENT. But the state of mind of the voter is irrelevant here. If the choice is not plainly given on the ballot that is used in the vote, no choice has properly been offered to said voter.
Well, so what; who cares; and who ought to care? What’s the harm, in other words? Well, for one thing, those tasked with following election law as codified in the Elections Code of California both, we presume, care and should care. Every voter should also care who does not have the required notice at the top of their ballot and thus will lose their franchise, because their ballot is unlawful and must not be counted. Moreover, every candidate, who might be more likely to receive votes when the voter sees the required notice and has a sudden realization of the true state of affairs, should care and every prospective or presumed elector for President and Vice-President should care.
An explanation of the nature of the vote for Presidential Tickets is needed not only for the nominees of ballot qualified parties, but also for independent slates of nominees for Electors for President and Vice-President, which may be written in.
The Counties that complied with the political party slate explanation specified in Elections Code Section 13205 (b) displayed above are: Inyo County, Kern County, Santa Barbara County, Nevada County and Alpine County.
However, all five Counties complying with Section 13205 (b) failed to give an explanation at the top of the ballot for write-ins of independent slates not nominated by ballot-qualified parties required by Elections Code Section 13205 (c). Such independent slates are pledged to Presidential and Vice-Presidential candidates. Five such independent slates existed when the voters made their choice, which might have been written in, so an explanation is required for them too. Since voters may choose the nominees of ballot-qualified parties AND independent slates, both subsections (b) & (c) of Elections Code Section 13205 require explanations that must appear at the top of the ballot as “instructions to voters.”
(c) If a group of candidates for electors has been nominated under Chapter 3 (commencing with Section 8400) of Division 8, and has under Chapter 1 (commencing at Section 8300) of Division 8 designated the names of the candidates for President and Vice President of the United States for whom those candidates have pledged themselves to vote, the instructions to voters shall also contain the following:
“To vote for those electors who have pledged themselves to vote for a candidate for President and Vice President not supported by any particular party mark the voting target next to the names of those presidential and vice presidential candidates.”
Since there were no non-ballot-qualified party write-ins qualified for this General Election, Section 13205 (d), shown below, which also has explanatory language, does not apply to the issue at hand.
(d) If a group of candidates for electors has been nominated by a party not qualified to participate in the election, the instructions to voters shall also contain the following:
“To vote for those electors who have pledged themselves to vote for a candidate for President and for Vice President of any party not qualified to participate in the election write in the names and party of those presidential and vice presidential candidates in the blank space provided for that purpose.”
Even though Inyo County had, as a point of fact, no actual write-in votes, there remains the potential impact on voters who might have been influenced by the Elections Code language of 13205 (c). No County included the 13205 (c) language that is required for a ballot to be cast or counted. Thus every County has at least one fatal error. Three of them, Kern, Inyo and Alpine apparently each have just one, an omission of (c) referenced above. Nevada and Santa Barbara Counties each have one additional fatal error (for a total of 2) which will appear in Appendix G. One County has at least 6 fatal errors. Many have 3.
To be fair, the California Secretary of State in his General Election schedule has imposed a difficult choice on the County Registrars of Voters, viz. that they decide before write-in “electoral college” slates were approved whether they should include as “instructions to voters” the 13205 (c) language or not since the time Counties had to settle on the form and content of ballots came before that point in time. If no such write-ins qualified, then inclusion of such language might possibly confuse voters.
We note that despite this uncertainty, the Registrars of Voters went ahead and included space for write-ins for the Presidential contest. If no legitimate write-ins existed in some such Presidential General Election, that too might confuse voters. In any event, wherever in particular administratively the blame is to be placed, the State of California bears full responsibility.
Thus apparently no County will have any valid ballots printed by any County. What happens then? Does the legislature get to exercise its prerogative of appointment of Electors for President and Vice-President since it failed to allow its qualified registration base of voters to do so in a timely and effective manner? In such a case I believe we must contend that it is too late for the Legislature to do so since the voters have already cast their ballots in vain for the Presidential contest. Moreover, when the next session of the State Legislature begins (as indeed it already has), none of the State Assemblymen, nor half of the State Senators have been lawfully elected, no lawfully functioning California State Legislature exists until a special election is lawfully held to elect them properly.
The Constitution of the United States itself provides a remedy in the case of such a failure, viz. Congressional selection of President and Vice-President by the House, by State delegation, and by the Senate, respectively, that is should California’s “electoral college” votes prove decisive in the recently held Presidential contest.
For a little background context we note that all these Elections Code Section 13205 (b), (c) & (d) mandated explanations of the nature of the vote for Presidential tickets are necessitated by Elections Code Section 13103 which requires the substitution of the names of party nominees for President and Vice-President for the names of the Electors for President and Vice-President. The language in both (b) & (c) above which do apply to the recent General Election is hence required so that an adequately informed vote is possible. I exhibit this section below mandating the substitution explained above:
Every ballot shall contain all of the following: …
(b) The names of all qualified candidates, except that: …
(2) Instead of the names of candidates for presidential electors, there shall be printed in pairs the names of the candidates of the respective parties for President and Vice President of the United States. These names shall appear under the title “President and Vice President.” [Emphasis added]
This entire case about actual printed ballots presented to voters for their use rests on what we have or what may be found on sample ballots. If the defendants in this matter (the California Secretary of State, all 58 County Registrars of Voters, the Governor of California, and the Printing Office) say that’s all very well, “But your evidence is not in any instance based on a single actual ballot,” we should reply, “For the matters we allege were improperly printed and given to voters so they could fill them out and cast their ballots, we need no other evidence than the contents of sample ballots because they must be a “substantial facsimile of the official ballot, including instructions to voters.”
I cite below the Elections Code section which requires this extreme similarity (a facsimile (an exact copy of something, especially a book or document)) which also, if not followed, is among those violations of the Elections Code which say that the ballots “shall not be cast nor counted in any election.” [Emphasis added]
The county voter information guide provided pursuant to Chapter 4 (commencing with Section 13300) shall include a substantial facsimile of the official ballot, including instructions to voters.
(Amended by Stats. 2016, Ch. 422, Sec. 61. (AB 2911) Effective January 1, 2017.)
All of the language of Elections Code 13205 (b), (c), and (d) are, when required, to be placed at the top of the ballot as “instructions to voters” as the sections displayed above mandate. Although the ballot as a whole is required to be an almost absolute match to a sample ballot, the language placed in quotes that the legislature required as “instructions to voters” was clearly to be precisely as specified, with no deviation.
No County satisfied the requirement for the placement of the instructions to voters mandated by Elections Code Section 13205 (c) for the enlightenment of all voters (since any voter might consider a write-in). In point of fact, many voters did consider a write-in for Kanye Omari West. He, in fact, did not qualify as a write-in, although we did try to tell him how to do so.
So are California’s high standards—enforced by the consequence, “shall not be cast nor counted in any election.[Emphasis added]”—too strict? May the Court’s opinion in that case override the California legislature’s clear intent? No, it may not. The United States Constitution explicitly places the sole power of appointment and manner of appointment of Electors for President and Vice-President exclusively in the hands of the State legislatures. And, although we are somewhat skeptical of the legitimacy of all of the States’, not just California, delegation of their responsibility to woefully uninformed voters, the only question remaining is whether the process for said appointment laid down in California law was indeed sufficiently followed and even beyond that presented an actual intelligible choice to voters.
As we have established in the foregoing, it was not. But what if the Court should, none-the-less, rule that the language of subsection (b) would sufficiently enlighten prospective write-in voters as to the fundamental question of just who they were voting for? The 3 (or 5) Counties’ ballots that would remain as qualified to be cast and counted—to whatever candidates’ benefit that might inure—would not be an adequate expression of the will of the California voter. Although the Legislature may wish to remedy the fatally flawed General Election Presidential contest, it may do so only prospectively, for the 2024 contest. The process of appointment of Electors for President and Vice-President by California voters had a deadline of November 3, 2020, now past. That process failed on the date of the election specified by statute. No alternative method of appointment of Presidential electors has been established by the California legislature so the process of appointment of them fails. (Fact check this last sentence.)
Must this Court then make the difficult decision to divine the will of an insufficiently instructed California electorate? No, it labors under no such necessity nor does it have the authority to do so. The United States Constitution provides a remedy for such cases, viz., the selection of President and Vice-President by the national legislature, Congress.
We have established a binding statutory requirement for the discarding of a massive number of otherwise proper ballots, approximately 96.6% by Section 13205 (b) which mandates language instructing voters as to the nature of their vote for the Presidential tickets of the ballot-qualified parties such as the American Independent Party, a plaintiff in this suit. As a ballot-qualified party, the American Independent Party has a zone of interest encompassing the entire electoral process, but especially in the case of the outcome of particular elections where we have a candidate or candidates in electoral contests, such as for President and Vice-President. (The “candidates” of ours are not candidates for ordinary citizen electors, but for the consideration of Electors for President and Vice President.)
Since the vote in the Presidential contest is not in fact for either of the Presidential or Vice-Presidential candidates, but for nominees for the office of Elector for President and Vice-President, we include several of such nominees of the American Independent Party as plaintiffs and perhaps of the Peace and Freedom Party as well, who has shown an interest in supporting this suit. We also include voters in the 53 counties all of whose voters were disenfranchised by the egregious failure of County Registrars of Voters to include Elections Code 13205 (b) mandated language. We also include the American Independent Party nominees for President and Vice-President made at its Convention held in Sacramento, on August 15, 2020. We even include FWAB (Federal Write-in Absentee Ballot) ballot users who altruistically do not wish theirs to be the only ballots counted or those who more self-interestedly do wish theirs to be the only ballots counted. Moreover, we include Electors for President and Vice-President nominated by the California Republican Party and pledged to Donald J. Trump and Michael Pence.
Our American Independent Party candidates for President and Vice-President, the Republican Party’s candidates suffered an incalculable injury from the effect on voters of their lack of information on the nature of the choice set before them in the Presidential election contest, a lack of information which also disenfranchised those voters. It is an incalculable harm since about 96.6%, 98% or 100% (depending on the assumption of how many County registration figures are to be considered) of ballots printed by California electoral jurisdictions were legally castable or countable. (I.e. 5, 3, or 0 Counties with legitimate California ballots.)
Consider the effect on the vote in the five Counties complying with Section 13205 (b) if their voters knew that the whole choice in the Presidential contest rested on their approximately 3.4% of the overall vote. Moreover, if the Ballot-Qualified Parties were aware of that approximately 96.6% disenfranchisement, what extraordinary efforts they and their candidates might have made concentrated on so few voters relatively speaking!
As to the potential effect of defective fundamental voter information on which the voter was exercising their choice, we have produced an example of an extreme degree of confusion and misinformation on the part of as putatively knowledgeable and presumptively honest person as the Registrar Of Voters (ROV) of Orange County which we include as Exhibit H.
If the plaintiffs prevail in this matter, either by preventing the certification of the California Electors for President and Vice-President or by giving them to the Republican Party’s nominees for Electors for President and Vice-President, the outcome of the 2020 Presidential election will be changed. If certification of California’s Electors for President and Vice-President does not occur, the Congress must make the selection. If Donald J. Trump gets the “Electoral College” votes of California, then that is enough to elect him President and Michael Pence, Vice-President.
The relief that would have been sought was a writ of mandamus preventing the certification of California’s Electors for President and Vice-President putatively elected in the recent General Election. That is now past, so moot. Since only Federal Write-in Absentee Ballots (FWAB’s) are potentially valid in this election, since they were printed under Federal authority, and even if all such ballots were cast by 21 year old male citizens, California is entitled to zero representatives in the House.
Exhibit A will be all Elections Code sections, other State Statutes, and US Constitutional Provisions cited in this filing including Exhibit G below.
Exhibit B will be all the sample ballots for the 2020 Presidential contest which we have been able to gather.
Exhibit C is the list of Electors for President and Vice-President nominated by the American Independent Party and the other California Parties which are plaintiffs in this case.
Exhibit D is the list of all qualified write-in candidates for slates of Electors for President and Vice-President and the nominees for President and Vice-President to which they are pledged.
Exhibit E an example of the FWAB - Federal Write-in Absentee Ballot.
Exhibit F will be the breakdown by County of CA FWAB’s counts.
Exhibit G will be a Table of all fatal violations of the California Elections Code by the 58 Counties so far determined with violated Elections Code Section Column Headings.
Exhibit H will an affidavit concerning the Registrar Of Voters of Orange County supported by emails from him.
This suit is brought seeking a decrease in California’s House of Representatives delegation in proportion as the right to a lawful vote has been denied the class of citizens defined in the second Section of the 14th Amendment shown below:
ARTICLE FOURTEEN - July 28, 1868
Section 2.
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.
But when the right to vote at any election for the choice of Electors for President and Vice-President of the United States, Representatives in Congress, the executive and judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
The fact of denial of vote on lawful ballots to all but 99,5%+ voters in California for Electors for President and Vice-President, hence to the subset of California voters referenced in Section 2 above, has been established in the State Case above.
My home phone # is 707-448-7062. I prefer my home phone to the Party’s HQ number which, although at the same location, has but one extension, whereas the home phone has 6, spread throughout the premises. AIP HQ 707-359-4884
Markham Robinson, Vice Chairman and Acting Chairman of the American Independent Party of California
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