In this episode, we sit down with conservative political law attorney Cleta Mitchell, a partner at Foley & Lardner. She has been on the ground in Georgia assisting the Trump campaign in its legal efforts.
This is American Thought Leaders, and I’m Jan Jekielek.
Jan Jekielek: Cleta Mitchell, so great to have you on American Thought Leaders.
Cleta Mitchell: Thank you. It’s nice to be with you.
Jan Jekielek: Cleta, you’ve been on the ground in Georgia working on the Trump campaign Georgia lawsuit. But before we go there…we’re going to dive deep into that. There is this new lawsuit coming out of Texas where Attorney General Ken Paxton is actually suing four states: Pennsylvania, Georgia, Michigan, and Wisconsin. This is a new thing. Can you tell me what is this new Texas lawsuit all about, and it’s going to the Supreme Court as well?
Cleta Mitchell: Well, it is a case originally filed in the Supreme Court by the state of Texas, and I understand there may be some other states that will join. It is alleging that the failure of the states named in the complaint to conduct their elections in accordance with state law constitutes an injury to the states that did conduct their elections properly, and asks the Supreme Court to stay the certifications from those states and to allow the legislatures to step in and choose the electors as provided in the U.S. Constitution. People don’t realize the Constitution says that state legislatures shall appoint the electors, the presidential electors. That’s very clear in the U.S. Constitution.
What has happened over the course of the last century is that legislatures have decided to allow voters to have an impact in terms of choosing electors by adopting election codes. And that’s the manner in which the Georgia legislature, for instance, has delegated and allowed the voters to be part of that decision-making process. The election contest filed by the Trump campaign last Friday shows that the election was not conducted in accordance with the election code of Georgia and there are too many illegal votes included in the tabulations for anyone to know with certainty who actually won the election.
Jan Jekielek: Let’s talk about this Georgia suit that you’ve been very, very focused on, from what I understand. There’s some incredible numbers that are described here. There’s 30,000 to 40,000 absentee ballots lacking proper matching. There’s a whole bunch of other numbers. Give me a brief summary of what the Georgia suit is about, please.
Cleta Mitchell: Well, the Georgia suit is about the fact that there is an election code adopted by the legislature for conducting federal elections, and in this case, the presidential election. Because of the failures of the secretary of state and 15 counties that were also named in the suit—their failure to conduct the election in accordance with the election code has resulted in illegal votes being cast, counted, and included in the tabulations, far more than the margin of victory between President Trump and Joe Biden.
So under Georgia law, when that is the situation, that there are more illegal votes than the margin, the remedy is to order a new election. And in this case, the Trump campaign has noted that if the court does not order a new election, it can always enjoin the certification, vacate the certification, and allow the state legislature to choose the electors, which is what the constitution provides in the first place.
One of the things you need to remember is that there’s not a single allegation in the contest petition that is not substantiated and supported by either a sworn affidavit under penalty of perjury by an eyewitness, or by an expert who has studied and analyzed the state’s election data, and has concluded based on the state’s own records that there were over 2000 felons who are allowed to vote; that there were 66,000 young people who illegally registered prior to the time when they were eligible and were allowed to vote; there are 47,000 votes by people who moved out of their counties and did not re-register within 30 days of the election—so their votes are illegal; there are 4500 votes that were cast by persons who moved out of state, moved out of Georgia, and then registered to vote in the new state.
Under Georgia law, they forfeit their Georgia residency. Those ballots are illegal. And the 30,000 to 40,000 absentee ballots that were counted and included in the tabulations that we know, just based on historic rejection rates, should not have been included. Because while there were six times more absentee ballots, the percentage of the rejections for that multi-fold increase in the number of absentee ballots dropped .34 percent. Based on just using historic projections, that’s another 30,000 to 40,000 ballots that should have been disqualified and were not.
There are multiple ways in which they election officials violated the Georgia election code, allowing many tens of thousands of illegal votes to be cast, counted, and included in the tabulations. And all of that is in violation of the election code, which gives rise to a need for the legislature to set aside and disregard the election results, and to choose electors as required in the Constitution.
Jan Jekielek: I believe you actually filed this on December 4. What has been the response to this now?
Cleta Mitchell: Well, Secretary Raffensperger still hasn’t read it and he keeps making statements that are just completely false. He made a statement earlier today, just a little while ago, that all of the absentee ballot matching, signature matching, and verification was done in public. Well, that’s a completely false statement. None of this signature matching was done in public. The Trump campaign has been asking since November 10, a week after the election, and has asked five times that the secretary of state conduct a signature matching audit. He’s refused to do that.
Then he said today all the records are public. Well, no, they’re not. If they were public, then the Trump campaign could go in and conduct the audit. We can’t conduct the audit until and unless the records are made available. They’re required by law—the election officials are required by law to keep those records, but so far, they’ve not been made available.
So unfortunately, the secretary of state does not appear to know what it is he’s supposed to do, he doesn’t appear to know what he has done, and he doesn’t appear to know anything about what happened during this election. If he would spend half as much time actually looking at the data and the evidence that has been filed in the litigation and the election contest as he spends on media and promoting himself as having done everything correctly—which he didn’t—if he would spend half as much time studying the actual information, and the facts, and the affidavits from nearly 100 Georgia citizens and the expert witnesses—if he would just look at that, maybe he might realize that all the things he’s saying to the public are false.
Jan Jekielek: You’re asking the secretary of state to look at this data. What concrete actions, in your mind, could he take right now to help resolve the challenge?
Cleta Mitchell: Well, there are a lot of things he could do. There are a lot of things he could have done from November 10 forward. He could have allowed a signature matching audit—he’s been asked five times. The governor has asked him to do it, the senators have asked him to do it, [but] he’s refused to do it. He didn’t really understand for the longest time that you can actually gather important information by looking at the records that they have. He kept saying, “But we have a secret ballot and the signatures are detached from the actual ballots.”
Well, we know that. That’s not the point. He could take the data that we’ve included with regard to the records, and he could look and see all the people who are still on the rolls, who were allowed to vote, [but] who should be removed from the rolls—certainly removed from the rolls before the January 5 runoff. So it’s all there for him to do, but he’s too busy having press conferences saying that he did everything right, and writing articles saying that he did everything right, to actually do his job. It’s unfortunate. It’s very unfortunate.
Jan Jekielek: What do you think, in your mind, is the best remedy here? Is it actually to call a new election as the lawsuit suggests?
Cleta Mitchell: The court could vacate the election and call for a new election, which is the proper remedy under state law, or the court could simply enjoin the certification by the secretary of state and allow the legislature to appoint the electors as provided in the Constitution. But these electors should not be awarded Joe Biden because he did not win Georgia.
Jan Jekielek: This idea of the legislature assigning electors differently, that’s something that I think a lot of the American public isn’t particularly aware of, even as a possibility.
Cleta Mitchell: Well, that’s true. They haven’t read Article II of the Constitution, and it’s very clear in the Constitution. And honestly, when the Constitution was first written, and for maybe the first 100 years in the nation’s history, people didn’t vote on the presidential electors. The legislatures just selected them—they “appointed” [them]—that’s the terminology in the Constitution. So it’s really only been in the 20th century and the 21st century that legislatures adopted election codes allowing the public to vote, but they allowed the public to vote only by following the election code adopted by the legislature.
And what happened in 2019 and 2020 is that the Democrats and their left wing allies sued states all over the country, to get judges and to get executive branch officials to superimpose their decisions and their judgment without the state legislatures, and this is a constitutional matter. Neither the judges nor the executive branch officials have the authority to override the manner in which the legislatures have directed that presidential electors are to be chosen. That’s a legislative responsibility.
So this was a design by the left and by the Democratic Party to bypass the legislatures, go to court, get state officials like the secretary of state of Georgia to enter into consent decrees to simply disregard the statutes. That’s not constitutional, it’s not legal, and it ought not to be allowed to stand.
Jan Jekielek: This is quite interesting, also. This lawsuit from my very simple reading of it, there’s nothing about voting machines in there. There’s nothing about these kinds of irregularities—it’s purely about the votes that were cast, and whether or not they were cast properly or improperly. Am I reading this right?
Cleta Mitchell: Yes, and there’s a reason for that. This is not to say that there were not problems with the voting machines, etc. But there was a conscious decision to not put into the petition anything that could not be substantiated by either expert testimony or an eyewitness— a sworn affidavit from an eyewitness. And there simply was not the time, there were not the resources to be able to conduct the forensic audits necessary to raise the issues of the voting equipment. Everything in this petition is grounded in fact—absolute fact.
And if the team did not have the facts, an expert analysis of the publicly available voting records, or an eyewitness, it did not go into that petition. It doesn’t mean there weren’t other issues. There were many, many incident reports—many hundreds more incident reports, called into the state Republican Party headquarters. This lawsuit includes the most salient and the ones that directly constitute violations of state law.
Jan Jekielek: You’re basically saying that the secretary of state is ignoring the requests to look at this signature matching and other issues. How do you propose to deal with that, if that’s indeed what’s happening?
Cleta Mitchell: Well, here’s what’s happening: We’ve sued him and asked the court to order the signature on it. We have handwriting experts prepared to conduct a signature audit of a statistically significant random sample of the signatures in 15 counties, and have been prepared to do that for several weeks, but the secretary of state refuse to allow that and now we’ve asked the court to order it.
Jan Jekielek: A lot of people have heard that the signatures are separated from the ballots, and now everything is mixed up, and there’s no way to look at these again. Can you explain how this works?
Cleta Mitchell: Yes, they are separated but it doesn’t matter. What you can still look at is you can conduct an audit where you take the applications, follow the state law, look and see if they were properly matched, see how many you come up with. The average rate of rejection—if it had been the historic rate of rejection of absentee ballots and applications due to failure to properly verify—would generate another [30,000] to 40,000 ballots that would not be legal.
And we don’t have to show how those people voted. They might have all been Trump voters, for all we know. But once you look at the signatures and you follow a statutory process, then we’ll find out whether the signature verification was done properly. We don’t think it was. We have testimony from some counties that say they didn’t do any signature verification. And we know from looking at the comparing [of] the rejection rate for the general election 2020 that it’s substantially below the historic rates of rejection that the state of Georgia is used to—notwithstanding a six fold increase in the number of absentee ballots. So it’s not possible statistically for it to be accurate.
Jan Jekielek: One of the things that I’ve heard actually, I think it was Alan Dershowitz, that told me on this program, that there was a lot of education [needed] for people around absentee ballots and that certainly can account for some of that margin.
Cleta Mitchell: Education about what?
Jan Jekielek: In how to fill out these ballots properly so that they don’t get rejected.
Cleta Mitchell: I have no way to know that. What we know is that they didn’t follow the standards that were historically used and that are required by law. That’s clear. We have evidence of that, that’s in our petition. That’s in the petition.
Jan Jekielek: The other thing that’s in the petition, I think, is 66,000-plus underage voters. That should be extremely easy to verify. It’s larger, in itself, than the margin.
Cleta Mitchell: There are several different categories where there are more illegal votes than the margin. That’s one of them. There were 66,000 [underage voters]. Clearly, the Democrats were doing voter registeration drives in high schools, registering many tens of thousands of high school students who are not eligible to be registered. Now, if they re-registered when they were seventeen and a half, that’s one thing—but they didn’t. They registered before they were legally eligible and then were allowed to vote. That’s illegal. They should be required to re-register legally.
And this is the kind of thing that is most disturbing to me, is that election officials have gotten so sloppy, and so [then] disregard the statutes. The approach that was taken in the preparation of this lawsuit was, number one; zero tolerance for violations of the law, and number two; no assertions unless it was substantiated by a record, by the public records available from the state of Georgia, or by sworn affidavits by eyewitnesses. And that’s what that petition is.
Jan Jekielek: I want to talk about “mail-in voting,” this kind of a transformation of the electoral system. A number of guests on the show have talked about this and one of the things that was mentioned was that the first bill proposed by the Democratic House, H.R. 1, talked a lot about facilitating all this mail-in voting on a larger scale and so forth, and that through coronavirus—this is what a number of people have said—some of these provisions that would have been in H.R. 1— which didn’t get passed—were actually implemented subsequently. I’m wondering if I could get your thoughts on this.
Cleta Mitchell: Well, the Democrats, they’ve been trying to get universal mail voting for a number of years, and they did include that in the very first bill that was considered and on the floor when the Democrats regained control of the U.S. House of Representatives. So January 2019, a year before anybody ever heard of COVID, they had that in their legislation. They wanted to do that nationwide. That did not pass the House, and it did not pass the U.S. Senate.
But what they did was then they took that to key battleground states, and sought to implement that, as I said, by filing lawsuits, and getting orders from judges, and agreements with executive officials to vastly expand absentee ballot voting. For instance, one of the ways that the secretary of state of Georgia broke the law is that he unilaterally sent absentee ballot applications to everyone on the active voter list.
Well, Georgia doesn’t allow that. The statute says, a person who wishes to vote by absentee must submit an application and that application cannot be submitted more than 180 days prior to the election for which the ballot is sought. Here, the secretary of state of Georgia sent absentee ballot applications well before the primary in Georgia. I think they were sent out in March. And on those forms—these were applications that people didn’t have to ask for, in violation of state law—on the form was a place to check a box saying, “If you would like an absentee ballot for the general election, check here.”
So there are over 300,000 absentee ballots that were sent to people before the 180-day period that allows for them to submit an application for an absentee ballot. So I’m just saying, there are so many ways that this secretary of state and the election officials completely disregarded the law in the state of Georgia. It cannot be allowed to stand. The law is the law. The statutes are the statutes. That’s what the legislature enacted. I don’t care if the secretary of state thinks it should be different. He should go to the legislature and get it changed, not just unilaterally decide to disregard it.
Jan Jekielek: Why this huge effort to facilitate mass mail-in voting, or why the predisposition or positive view of that?
Cleta Mitchell: Because there was no verification. You vote in person in Georgia, you have to present a photo ID, and you have to sign and then they compare your signature while you’re standing there. When you vote by mail in Georgia, they didn’t have any of that. It’s an equal protection problem, because voters who voted in person were subjected to more stringent requirements than people who voted by mail. That’s one of the counts in the contest petition. So the Democrats and the left wing groups want to be able to have these ballot drives, and not be subject to any kind of oversight or review, and that’s what they did. They did it in key states to try to shape the outcome and they did it.
Jan Jekielek: What is the situation on the ground in Georgia, from the campaign perspective?
Cleta Mitchell: Well, the situation is that we believe that the election outcome is not accurate, and that all of these illegal votes should be thrown out, and that this election cannot be certified as having been awarded to Joe Biden, and there are extraordinary remedies available and those should be followed.
Jan Jekielek: Any final thoughts before we finish up?
Cleta Mitchell: No, I just hope that the legislature will do its job, and Congress will do its job, and exercise their constitutional responsibilities for appointing presidential electors properly, and that Congress will ensure that the right electors are seated and their votes are counted.
Jan Jekielek: Cleta Mitchell, it’s such a pleasure to have you on.
Cleta Mitchell: Thank you. Thanks for having me.
This interview has been edited for clarity and brevity.