Sometimes former President Trump points us to some really interesting stories that we might otherwise have missed. In an email bulletin Tuesday from his Save America PAC, he linked to an article by former CIA operations officer and security expert Charles “Sam” Faddis at a website called "AND –- Expert Analysis and Commentary." The case Faddis analyzes, filed in the Commonwealth Court of Pennsylvania, deals with the constitutionality of a change in Pennsylvania election law signed by Gov. Tom Wolf on October 31, 2019.
“The results of the suit [Doug McLinko vs. Commonwealth of Pennsylvania, Department of State and Veronica Degraffenreid],” Faddis says, “could have major implications for future elections and potentially for ongoing efforts to challenge the 2020 election results.” The date for a hearing hasn’t been set yet, but “those interested in the question of election integrity will be watching for that news with intense interest.”
Apparently, Degraffenreid is named in the suit because at the time of the election, she was working in the Pennsylvania Department of State as the Special Advisor on Election Modernization. Perhaps she was specifically involved in the push to get mail-in voting passed for 2020, but we have no details on that. She is now acting Secretary of the Commonwealth and oversees elections. She previously served in North Carolina as Director of Election Operations and, going back further, worked for almost ten years in the North Carolina Department of Justice, specializing in “redistricting and election-related litigation.”
As Faddis describes it, this is a very straightforward, narrowly focused case that was brought by someone who clearly has legal standing –- as you will see –- Bradford County Commissioner Doug McLinko, a member of the Bradford County Board of Elections. The plaintiff says that when the Pennsylvania legislature passed “Act 77” in 2019 and went to “no excuse” mail-in voting, they violated the state constitution, which specifies four instances when absentee voting is allowed:
a. “When they are absent from their residence on the election day because of business.”
b. “[When they are] unable to attend in person because of illness or disability.”
c. “[When they are] unable to attend because of the observances of a religious holiday.”
d. “[When they are] unable to vote because of election day duties.”
But go online, and the State of Pennsylvania says this: “Any qualified voter may apply for a mail-in ballot. You may simply request this ballot without a reason.” And according to Act 77, they can.
They do at least require a form of I.D. or the last four digits of the voter’s Social Security number.
The Pennsylvania Supreme Court looked at another case and declared an earlier version of “no-excuse” mail-in voting passed by the state legislature in 1923 unconstitutional under Pennsylvania law. So why did the present-day legislature think it was permissible for them to put one in place in 2019? A court may determine that they have...NO EXCUSE.
If that’s the case, it means that to change from in-person to “no-excuse” mail-in voting, they would have had to amend their state constitution. But that’s a process that takes time, and they bypassed that one little inconvenience.
So, moving to the all-important question of “standing” to bring this suit, how is McLinko affected by this law? “As a member of the Board of Elections,” the suit reads, “McLinko must oversee the lawful administration of all aspects of elections, including voter registration, the voting process, and tabulation of votes. He must also certify the results of all primary and general elections in the county to the Secretary of State.” He says that because the move to mail-in voting was done unconstitutionally, he was being required by the state to “act unlawfully.”
One would think that if anyone had standing to challenge the constitutionality of state election law, it would be him.
As Faddis points out, this suit has nothing to do with such allegations as hacked voting machines or ballot stuffing, though we would point out that any expansion of mail-in voting certainly encourages the latter.
Finally, what is the plaintiff asking for? He requests a declaratory judgment saying that Act 77 violates the state constitution and is void –- as in, a legal nullity –- and calls for “any and all other appropriate relief.” Faddis explains to us non-attorneys that by implication, any action taken on the basis of this law would be a nullity as well.
Certainly, the state would have to return to in-person voting. Considering the possible effect this might have on changes to election law made (unconstitutionally) in other states, we’d bet that Marc Elias and his team of lawyers are on it like white on rice. As Faddis writes, “The implications for the November 2020 election remain unclear.”
The “fact”-checkers at POLITIFACT took a look at this issue --- not the specific case brought by McLinko but about what Missouri Sen. Josh Hawley has said about Act 77 --- and rated his claim about the law’s unconstitutionality “mostly false.” They say the state constitution doesn’t specifically ban absentee balloting, but it seems the case is easily be made that in specifying only a few instances when it’s allowed, the constitution implies that it is not allowed across the board.
They do offer some interesting points about the law’s passage. For example, Republicans supported it at the time, at least in part because it included a provision against straight-ticket voting. But we would think the fact that it was a bipartisan bill to begin with should help take the partisanship out of this whole argument. Both Democrats and Republicans in the state legislature passed this law to get certain provisions that they wanted. That does not mean the law is constitutional.
POLITIFACT really is just acting as an advocate for the “nay” side of this argument because, well, they’re POLITIFACT and that’s what they do. But a court, not the partisan advocates at POLITIFACT, will rule on the law’s constitutionality and McLinko’s claim. Sadly, elections are increasingly being won by lawyers, and as we've said, to keep from being bulldozed our lawyers have to be better than their lawyers.
An earlier suit regarding the constitutionality of Act 77 was filed about a year ago by multiple plaintiffs including congressional candidate Sean Parnell, and a Commonwealth judge said it had merit, but the state Supreme Court dismissed it with prejudice, not for lack of merit but for not having been filed “in a timely manner.” Parnell said he’d take the fight to the U.S. Supreme Court.
By the way, if you’d like to know more about Charles “Sam” Faddis, he has quite a resume as a homeland security and terrorism expert and appears on FOX NEWS, FOX BUSINESS NEWS, NEWSMAX and other news outlets. After 20 years with the CIA, he serves as senior partner and executive consultant at Artemis LLC, whose experts have “decades of experience in the Intelligence Community, Special Forces and Military Communities and the Private Sector.”
His books include “WILLFUL NEGLECT: The Dangerous Illusion of Homeland Security” and the very timely “BEYOND REPAIR: The Decline and Fall of the CIA.”