Let me start with what should be obvious by now: While the 2020 presidential election was not perfect, and I have issues with courts remaking rules,((See Furor Over “Independent State Legislature” Ignores Constitutional Text.)) there is no evidence of sufficient illegal activity to support President Trump’s claims that Joseph Biden is not the legitimately elected President of the United States.1
One of the many unfortunate effects of President Trump’s inability to admit that he lost and his numerous unsupported lawsuits challenging election results is the public perception that every legal challenge to a certified result is election denialism. The fact is that, whether innocent, negligent, or malicious, sometimes (we hope rarely) election authorities certify an erroneous result. Therefore, the law provides a mean of challenging that decision in court.`
According to the Morristown Daily Record((“GOP file suit as residents demand Mendham Township deputy mayor concede election loss“)), such a challenge was filed on Tuesday. Two township committee members were to be elected and three votes (increased from two by a recount) separated the number two candidate, Lauren Spirig, who was therefore declared a winner, from the number three candidate, Thomas Baio. Baio’s challenge asserts that 33 people who did not meet residency requirements were permitted to vote. I have no idea if that allegation is true, but Baio should be allowed to present that evidence.((I am not well-versed in election law, so it is not entirely clear to me if it is relevant for whom these people voted such that they would have to be subpoenaed and ordered to disclose their vote. I do know that where a legal voter is prevented from voting that voter is not required to state how she would have voted if permitted to do so and the challenger only need prove that sufficient legal votes were rejected to have changed the outcome, not that those votes would have been cast for the challenger. Baio seeks to be declared the winner, but I think the more likely outcome, if unlawful voting by three or more persons occurred, is for there to be a special election.))
Jay Bohn
December 22, 2022