Feedback on HLS letter re the Jan. 6 violence on Capitol Hill

Advocates of smaller, more focused, less costly government

Dean John Manning
Harvard Law School

January 7 note re the attack on Capitol Hill seemed somewhat one-sided, and may merit further consideration – both in terms of preserving the US electoral system and in terms of our understanding of the law and how it is taught. As you correctly observe, anyone who wished to dispute the outcome of the presidential election had an obligation to “proffer proof, hard evidence, to back up their claims.”

However, I happen to believe that a good deal of such evidence was proffered - numerous affidavits (8,000 pages worth in Nevada alone) of people who had participated in the electoral process. They reported unusual halts in vote counting on Election night, highly improbable statistical anomalies in the way that ballots were fed into the counting, identifiable errors in ballots (dead voters, voters who had moved out of state or had phony local addresses), batches of ballots marked only for the presidential choice (invariably Biden), noncompliance with signature verification requirements under state law, partisan observers denied access to areas where mail-in ballots were being processed and counted, etc. I personally watched some of the public testimony in several states and the witnesses came across as both knowledgeable and credible.

Was this evidence seriously reviewed by the “dozens of courts” who considered the various legal actions that were filed? From what I have gathered, the real bottom line was not that the evidence lacked merit but that the judges in these cases conjured up procedural reasons for dismissing the actions because there didn’t seem to be enough time for a thorough review and/or they didn’t want to get involved. Thus, for example, the US Supreme Court ducked the Texas suit against several battleground states based on “lack of standing” (in a case where SCOTUS has original jurisdiction yet) and set response dates in several other cases for after Jan. 20 (at which point, the outcome will seemingly be moot).

By mid-December, it had become clear – in my opinion – that the president and his legal team were out of realistic options for challenging the outcome. Yes, it would be possible to file further appeals and object to congressional certification of the Electoral College results on Jan. 6, but these efforts weren’t likely to accomplish anything.

So what should be done about the numerous claims of electoral irregularities, which the mainstream media/ social media had done their level best to ignore or discredit and the courts had studiously ignored? My conclusion was that an electoral reform commission (along the lines of the Carter/Baker Commission that reported its findings in 2005) should be created to thoroughly review the claims that had been made and offer proposals for handling future elections more impartially and effectively. Time to accept 2020 outcome, but election rules must be fixed,, blog page,

Sen. Tim Scott of South Carolina is working on just such a proposal. Tim Scott, not Ted Cruz, has the right election commission idea, Washington Examiner,
1/9/21. Would Harvard Law School support his idea?

William Whipple III
Harvard Law School 1963

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