I’m not a lawyer so I may be way off base, but it seems to me that there are many ways to approach this. For example, what about application for a Writ of Mandamus?
From
http://www.lectlaw.com/def2/m079.htm (emphasis mine):
This writ was introduced to prevent disorders from a failure of justice; therefore it ought to be used upon all occasions where the law has established no specific remedy, and where in justice and good government there ought to be one. Mandamus will not lie where the law has given another specific remedy.
Here’s my shot at arguments that might be used to seek a writ that shifts the burden of proof to the state:
Part I: Gap in the current law and remedy required(1) The law governing the contest of an election in the State of X fails to provide a remedy if the party contesting the election successfully establishes a reasonable doubt that the result is correct, but fails to prove that the results are incorrect.
Under current law, the party contesting the official results is called upon to prove the results to be incorrect. There is a presumption that the results are correct and the burden of proof is on the party contesting the results.
(2) Justice and the preservation of our government demand that we have confidence in our elections. If a party contesting an election establishes doubt that the results of an election are correct, steps must be taken to eliminate the doubt.
The power and legitimacy our government and its elected officials must rest on “the solid basis of THE CONSENT OF THE PEOPLE.” (Federalist 22) The aim of our election law is to ensure that our representatives obtain our consent in open, fair, and lawful elections that accurately measure our will.
If there is reasonable doubt that the results of an election correctly reflects the will of the people, that election must NOT be upheld as a measure of the peoples' consent. If there is doubt about the results of an election, it is likely that there will be corrosive doubt about the legitimacy of authority conferred by it if it is upheld despite the doubts.
(3) In the event that reasonable doubts about an election are established, the burden must be on the state to comply with the actions deemed necessary to eliminate the doubt. Assuming the election is administered professionally and election processes are sufficiently transparent, it should be fairly easy to eliminate doubts.
Elections are imperfect measures of the people’s will. Human or machine error can be introduced by imperfect systems for recording or tabulating the votes. Voters may not be afforded an equal opportunity to exercise their right to vote due to failures in administration.
Legal proceedings that are intended to resolve a contest or remedy problems can result in error. There are four possible outcomes to any legal proceeding that demands evaluation of election results for the purpose of upholding or striking down those results:
Correct Decision: Strike down results that are incorrect.
Correct Decision: Uphold results that are correct.
Type 1 Error: Strike down results that are correct.
Type II Error: Uphold results that are incorrect.
To be in accord with our founding principle, the law must minimize Type II Errors (that is, the governing laws need to minimize the chances of upholding an incorrect result.) To achieve this, a "presumption of incorrect results" is required and the burden is therefore shifted to the state to prove the results to be correct.
Part II: There is reasonable doubt that the election results reported by the State of X reflect the will of the voters.(1) The voting systems and practices employed by election officials in the conduct of this election are so clearly flawed that the results are wide open to corruption by systematic vote suppression, data manipulation, human and machine error, and consequently, willful fraud. The only certain result is that we can have NO confidence in how accurately they gauge the will of the electorate.
Evaluation of the nature of the problems discovered to date makes it clear that these problems have implications that reach far beyond this or that specific instance. We are learning that the software used to record and tabulate votes is seriously flawed, lacks basic internal audits and security protections, and produces results that are prone to undetectable corruption through error or deliberate tampering.
In addition to the nature of the problems associated with recording and tabulating the vote, there is evidence that voters were not afforded an equal opportunity to exercise their right to vote. Those in African American and poorer communities faced poll-tax lines (time is money) and other intolerable and discriminatory barriers to qualifying to vote, casting their vote, and having their votes counted.
(2) Given (1) any presumption of accurate results is invalid. The addition or subtraction of votes from an untrustworthy initial total is not a valid method to remove doubt that the results are an accurate reflection of the will of the electorate. With the reported results in doubt, discovery of isolated problems can do nothing but add to that doubt.
(3) The systems and processes implemented by the election officials in State X make it impossible to remove the doubt about the results with a standard recount as specified under current statute. Only a comprehensive audit has the potential to remove the doubt
Part III: Application for Writ of Mandamus Having established doubt that the election results correctly reflect the will of the voters in the State of X, and
Having established that the current law fails to provide remedy in this circumstance,
Justice and good government demand that the State of X undertake and comply with any actions required to remove the doubt.
Given the nature of the problems, only a comprehensive audit has the potential to remove the doubt.
We seek this writ to call upon the State of X to subject its election to a comprehensive audit. The aim of the audit we seek is to prove beyond a reasonable doubt whether or not the systems used to record and tabulate votes, the allocation of resources, and the administrative processes employed in the conduct of this election resulted in 1) violations that render the election unlawful (discrimination, fraudulent votes); 2) correctable machine or human errors; 3) vulnerabilities that make undetectable tampering or corruption possible…. <<<some specification of acceptable investigating authority, timeframe for compliance, and scope, etc.>>>
If the state fails to provide the access and records required to conduct the required audit, or if the independent audit fails to prove, beyond a reasonable doubt that the results accurately reflect the will of the voters, then …. <<<some specification of further remedy to address the possible outcomes. For example, if it is proven that the processes made the election vulnerable to undetectable tampering or corruption, the results must be thrown out entirely. The only remedy in that case would be to hold a new election that eliminated the vulnerability.>>>>
----------------
Next TaskIf this exercise has yielded something of value – i.e., to get some real legal minds thinking about feasibility, problems, etc -- the next task would be to draft an application for a writ that strikes down the results of the election if the election failed to ensure that all voters, regardless of gender, age, race, socio-economic state, partisan status. absentee status, military status… were afforded an equal opportunity to exercise their right to vote, which includes equal opportunity to qualify/register, cast their vote, and have the vote counted.
The gap in the law:
No remedy if discrimination is found, but the voters subjected to the discrimination cannot prove that the election result would be different if there had been no discrimination.
That is, the notion that when the results declare a winner by a large margin, discrimination and other problems are "outside the zone of litigation."
If you accept the notion that a large margin of victory puts the election "outside the zone of litigation," then you accept the notion that such a state is completely free to discriminate with no risk of consequence. This is an absurd position.
Writ to demand the election be struck down as unlawfully conducted and contrary to American values. It is then on the State of X to figure out what it needs to do to conduct a fair and open election.
No matter what the margin of victory, the results of a discriminatory election are unacceptable. We cannot continue to tolerate the intolerable. We cannot continue to tolerate the toleration of the intolerable.
Printer-friendly format
Email this thread to a friend
Bookmark this thread
(1000+ posts)
Send PM |
Profile |
Ignore
