Let’s Get Things Straight

By: Sen. Gene Yaw (R-23)

At the outset, and in the interest of full disclosure, I will state that I voted for Donald Trump every time his name was on the ballot.   I also supported his campaign financially.   Do I like the fact that the candidate I supported lost – NO.  Nevertheless, our system requires that, as a citizen, I respect the laws of this state and country.

Since the November 3rd election, I have been told that “I am not a Patriot.”  I am a military veteran and, of course, that previous comment came from a person who has never carried a weapon in the defense of this country.  I have been told “I do not understand the law.”   I am a lawyer, and, of course, that previous comment came from a non-lawyer.  I have been told that “I do not understand importance of the state legislature in the election process.”   I am a fairly senior member of the Pennsylvania Senate and, of course, that comment was made by a person who has never served in any elected office.    One misinformed soul even pontificated that it was clear I was “not running for office again.”  Of course, they fail to recognize that I have not yet been sworn into the term for which I was just re-elected.  A final threat I received is that if I don’t agree with those who don’t like the election results “I can guarantee you that you will never be re-elected to any other office again.”  Ironically, that comment came from a disgruntled citizen from Iowa.   For the record – I do not plan to run for office in Iowa.

Whether any of these misinformed comments mean anything is a question I will leave to my constituents.    Pending that, however, I will explain what my background and experience tell me about the November 3rd election and where we stand today.   For those who want to take the time to understand, hopefully this will help to close this issue and move us on to matters which need our undivided attention.    For the minority who think they have all the answers and disregard any facts contrary to their belief, this will do nothing.

There are two primary issues raised about the election.   One is that there is “widespread fraud and irregularities” in the election.   The second is that under Article II, Section 1 of the U.S. Constitution, the legislature is the only body, which can determine how a states electors are chosen.  I will address each, but before doing so, I will make it clear that I am a firm believer in the “rule of law” because without honoring the rule of law, we are left with chaos.   In the current situation, there are laws which have been in existence for many years.   Those laws set the stage for the conduct of the election on November 3rd and we are bound by them, like it or not.

The Trump lawyers have talked about “widespread fraud and irregularities” since November 3rd.   Talking has led to allegations in lawsuits.   Therein lies an important point.    Making allegations in a lawsuit is easy.   In any lawsuit, however, allegation must be proven by testimony presented under oath from witnesses who have personal knowledge of the events at issue.   We have all heard about “100’s of affidavits” or “stacks of affidavits” supporting the talk about fraud and irregularities.    For whatever reason, however, none of this supporting proof or testimony from witnesses has been presented in any of the court proceedings.  Saying a problem exists is easy.   Proving a problem exists is difficult.  Repeatedly saying a problem exists is not proof of existence.

I am not privy to the rationale followed by the Trump lawyers as to why litigation was conducted in a certain way.  To my knowledge, Trump’s lawyers have filed at least 40 lawsuits throughout the United States, including several in Pennsylvania.   Thus far, the number of decisions favorable to the Trump claims of fraud and irregularities is zero.  It cannot go unnoticed that many of the decisions were issued by judges who we would say have a Republican leaning.  Some were appointed by Bush, some by Obama and some by Trump but all reached the same conclusion.  We all recognize a 0-40 record as not being a good performance.   The overwhelming consensus in those decisions is that there is no evidence of widespread fraud or irregularities in the November 3rd election. Moreover, we cannot ignore the fact that United States Attorney General and the Director of the FBI, both of whom are Trump appointees, have publicly stated that there is no evidence to support claims of widespread fraud and irregularities.   Either Trump has the dumbest lawyers on the planet or there really is no proof of widespread fraud or irregularities.

Much blame for the Trump loss in Pennsylvania is laid on the mail in ballot provisions of Act 77.   My question is if the mail in voting of Act 77 was so bad, why did the Trump organization send out a mail-in ballot application to every registered Republican in the state?    At first, the Trump organization was against mail-in voting, but halfway through the campaign a flip flop was done and mail-in voting was encouraged.   The campaign flip flop clearly caused confusion among voters.

The November 3rd election resulted in Republican wins in state row offices for the first time in 40 years.  There were Republican gains in the Pennsylvania House majority and Republicans maintained their advantage in the Senate.  Clearly, Republicans did well in the election.   Were the elections in all of those races subject to fraud and irregularities?   The answer is, no.   So, the question is what happened to Trump?  The short and simple answer is that he did not receive enough votes in what used to be Republican strongholds such as the collar counties around Philadelphia.

With regard to presidential electors, Article II, Section 1 of the U.S. Constitution provides that “Each State shall appoint, in such Manner as the Legislature therof may direct, a Number of Electors…”    The U.S. Supreme Court, in the case Bush v Gore, stated “[w]hen the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental.”   Pennsylvania’s Election Code adopted in 1937, provides that in Pennsylvania, electors are determined by the popular vote for the office of President.  Pennsylvania’s legislature, 83 years ago, determined that the people would choose electors by vesting that right in its people.  In Pennsylvania, that is a fundamental right which has served to elect Presidents for the past eight decades.   In fact, Pennsylvania has followed this approach since the election of George Washington in 1789.    So, the rules of the game, so to speak, for the November 3rd election were set in 1937 and under those rules the people, not the legislature, choose the Presidential electors.

Many emails and comments I receive simply ignore the fundamental right that voters have in selecting electors and just say that the legislature should ignore that law and name different electors.    Not only does that suggestion run contrary to the provision of Article II, Section 1 of the U.S. Constitution but that suggestion also ignores the ex post facto provisions included in both the U.S. Constitution and the Constitution of Pennsylvania.    Ex post facto provisions prohibit the changing of laws after an event to make them applicable to an event which has already occurred.   This concept is at the very core of our system of government.   A very simple example is that if you are driving 70 mph today in a 70 mph zone, the constitutions prohibit changing the law next week to say that the speed limit was 60 mph and charging you with a 10 mph violation.   We can always change laws going forward, we cannot go backward.   So, the rules for who selects electors in Pennsylvania were established in 1937 and they are the rules applicable to the November 3rd election.   The people choose the electors by their votes and those results were certified by the governor according to the Election Law on November 24th, 2020.  Those are the persons who will vote on January 6th.

Talking about fraud and irregularities is easy.   Perhaps it is appropriate to say that talk is cheap.  Providing facts under oath in a court setting is a difficult challenge but that is what our rule of law requires.   That is what keeps our country civilized.

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