Saturday, December 12, 2020

We Don't Need SCOTUS to Win

 By James Arlandson | The American Thinker

The Texas suit, later joined by other states, against Wisconsin, Pennsylvania, Michigan, and Georgia, was a nice try, but it was always a long shot.  Of course SCOTUS would be reluctant to grab so much power by ordering state legislatures to seat the right electors.  Why?  Because the power is already in the hands of the legislatures to do this. 

Though we are non-lawyers, let's read these laws together, interpreting them minimally and plainly (something lawyers seem incapable of doing).  The first federal law for our purposes, titled "Determination of controversy as to appointment of electors," says:

If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.

So this provision, if I understand it correctly, says that states may appoint electors after a controversy ("controversy or contest").  Now, what happens when fraud and illegalities are so egregious that they help one candidate exclusively and harm only one candidate in such a way that it is unclear which electors shall be appointed?  That definitely qualifies to become a "controversy or contest."  The provision opens the door to each state legislature having the right to determine how the state can appoint electors ("appointment of electors" and "ascertainment of electors").  (This is already clear in the Twelfth Amendment, but here this provision gives more clarity after a controversy.)  Bottom line: The electors for Biden, the "fake winner," can be set aside if that is what each individual state law allows. 

What does each state law say?  It's up to them to tell us, because researching each state's law is too burdensome for average citizens.  But it is safe to assume that the states have "plenary power" to appoint the electors of their choosing, particularly when the Constitution actually says the state legislatures determine things.  The Electors Clause — Article II, Section 1, Clause 2 of the U.S. Constitution — provides that "[e]ach state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress." (Hat tip.)

However, what about the "six days" in the election law provision?  The next federal law, in a section titled "failure to make a choice before prescribed day," says:

Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct. 

The states can determine when they appoint the electors "on a subsequent day" (not the next day).  The phrase "In such a manner as the legislature of such State may direct" gives the states much leeway to select the right electors, which agrees with the Electors Clause, cited above.  And if the controversy in selecting electors, caused by fraud and illegalities, persists past Dec. 14, then the states can ignore the date and follow their need to further investigate fraud and illegalities. 

The whole thing can work out like this, apart from the Texas lawsuit before SCOTUS.

The undisputed states vote electorally on Dec. 14, and neither Biden nor Trump reaches 270, so neither one is the winner.  The five GOP state legislatures (Arizona, Michigan, Georgia, Wisconsin, and Pennsylvania) of the six disputed states (minus Nevada) say they need to postpone their electoral votes because they are investigating fraud and illegalities. The legislatures perform due diligence (they have been holding hearings to collect the evidence) and conclude that fraud and illegalities unilaterally hurt Trump and helped only Biden.  Assuming that the Democrat Legislature in Nevada says everything was legitimate, each disputed GOP state may reach this conclusion on any day after Dec. 14 — say, on Dec. 27 or even Jan. 15.  Then they appoint electors who vote for the rightful winner: Trump (provided the GOP-selected electors do not suffer from TDS).  These votes are added in to the votes cast on Dec. 14.  Trump goes past 270 electoral votes.  He wins!

However, what happens if the disputed states cannot select the electors, and neither Trump or Biden reaches 270?  Then it goes to the House of Representatives, and each state has one vote, and this one vote is determined by the political makeup of the state legislatures.  The GOP controls 29 state legislatures, and the Democrats have 19 (two are split).  Trump wins again.

Therefore, we don't need SCOTUS to win, and we never needed it.

So what happen next, and what can regular folks do now? 

First, we can keep up the pressure on the legislators of those five GOP states to select electors who will vote for the rightful winner, who is obviously Trump.  Some of the members in these legislatures may suffer from TDS, so the message must be sent that they have to set aside their irrational opposition and do the right thing. 

Second, Sidney Powell's legal team can continue with their lawsuits, so they can expose and uproot Dominion Voting Systems.  Now the goal will not be to overturn elections, but to get rid of the flawed, rigged system.  This goal is much more realistic and easier to accomplish.  The court cases will take a long time.  But that's okay, because they keep in the public view the "fake president" and 2024, if Biden (unjustly) prevails. 

Third, we must counter the left-wing pressure, including their threats of violence, that will be thrust on these little known state politicians.  Without threats of violence on our side, we can still stand firm to support and defend them. 

The battle is not over.  It was always going to boil down to the legislatures without SCOTUS.  If we keep up the fight, we shall win with knowledge and the law on our side.

Please visit James Arlandson's website, where he has recently posted Matt. 24:4-35 Predicts Destruction of Jerusalem and TempleMatt. 24:36 to 25:46--From the Second Coming to the New Messianic AgeCosmic Disasters = Apocalyptic Imagery for Judgment and Major Change.




Supreme Court's Texas Ruling is Nothing Short of Disgrace

By Howard J. Warner | The American Thinker 

Image credit: Picryl public domain, image orientation modified.

Friday evening the United States Supreme Court decided to not take the Texas lawsuit against four states over their application of presidential election law.  The Court only mustered two justices in favor of taking the case:  Samuel Alito and Clarence Thomas.  The argument against hearing the case was that Texas lacked standing to sue Michigan, Georgia, Wisconsin, and Pennsylvania.  Wow!

In a podcast titled “Is Secession Upon Us?” Ben Shapiro argued against the Supreme Court taking the Texas lawsuit.  He reasoned that under principles of federalism it would threaten our union if the sovereign states could dictate the laws of other states without resulting direct damages.  This goes to one of the three principles of legal standing.  His concern considers that in the future, the Court under a left-leaning majority would use this concept to attack more conservative states and their laws.  His thinking is reasonable and likely figured into a rejection of the case by the seven other justices.  Yet, I doubt that this was the essential point in this case.

If we examine Marbury v. Madison (1803), Chief Justice John Marshall set the principle of judicial review of congressional laws.  He determined that Section 13 of the Judiciary Act of 1789 violated Article III of the Constitution by illegally enlarging the role of the Supreme Court from an appellate jurisdiction to one of original jurisdiction.  His reasoning was excellent.  But one must also consider the political implications.  President Thomas Jefferson, an ardent opponent of last-minute appointments made by the John Adams administration, would likely refuse to obey a writ of mandamus to sit Marbury as a judge, rendering the Court impotent.  He reaffirmed the ideal suggested by Alexander Hamilton in Federalist No. 78 of judicial review as a way of avoiding a political risk and thereby strengthened the Court’s power.  In this case, standing was an issue because Marbury brought the lawsuit to the wrong court.

I believed that Justice Roberts would only desire a unanimous decision should the Court take the case.  Interestingly the three Trump appointees, demonstrating independence, refused the case.  Perhaps they saw merit in the Shapiro argument.  Possibly they saw their ability to render opinions in the future being questioned by intervening in the presidential election on behalf of their benefactor.  So, is there any standing in this case?

A simple reading of Article III Section 2 makes the Supreme Court the original jurisdiction in all cases of state-to-state actions.  It allows original jurisdiction between citizens of different states.  This is the root of the lawsuit claiming damages from illegally cast votes in a presidential election.  There is no requirement to take any case and herein lies the real issue. 

The argument fails to mention any corruption or irregularities that could be remedied by the Court.  When a court chooses to avoid a hearing, it can do so through the principle of standing.  Standing, according to the free legal dictionary by Farlex: "is the name of the federal law doctrine that focuses on whether a prospective plaintiff can show that some personal legal interest has been invaded by the defendant. It is not enough that a person is merely interested as a member of the general public in the resolution of the dispute."

The three liberals, Sonia Sotomayor, Elena Kagin, and Stephen Breyer would fear allowing the conservative majority any latitude in this case.  In such a case it usually takes 5 justices to hear the case.

The majority chose to avoid this case because it would be politically dangerous. 

What is the purpose of the Supreme Court?  It was intended to adjudicate the essential protections of our Constitution.  A fair and honest election must be a part of this protection.  We are a republic and select electors (that ultimately choose the president), who are apportioned based upon the population of each state and jurisdiction.  Failure to follow the Constitutional prescription under Article II section 1 that grants the legislatures the sole power to choose electors renders this clause useless and must be a permanent harm to citizens of different states.  Failure to hear this case is an abrogation of the Court’s role to protect our institutions. 

As to Shapiro’s concern that expanding federal power to examine the sovereignty of the states misses a reliable fact:  In the future, the liberals will do so if it serves their interests, as they have expanded federal power in the past.  They do not need any precedent as they create their own.  After all, they ignore restriction in the Constitution when it is convenient.  They will use any means to accomplish a desired result.

The Court did not have to dismiss the electors in the four states.  They could have ruled that the procedures used to change election law in the four states was in violation of the clear wording in the Constitution.   Thereby, the Court would be reaffirming that provision of the Constitution.  They could have demanded evidence of the harm.  If they found insufficient evidence to change the election in each state, they could then leave the result.  Should evidence be sufficient (and this is a high hurdle) to change the result of the election, they could apply the Court’s 1892 ruling in McPherson v. Blacker to have the legislature make the final decision via electors.  Then they restore the political responsibility of state’s elected officials, which the most important aspect of federalism as a counter to expanded national power. 

As to harm, it is not hard to see it.  Any illegal vote damages those who vote legally by distorting the outcome.  This occurs in the presidential election and in the election of representatives to congress, where few votes might separate winners and losers (as in NY-22 in 2020).  The Court can see harm when it chooses to do so since states’ citizens are not third parties.

However, on Friday, the Court’s majority demonstrated a lack of fortitude.  For a divided and skeptical citizenry this is disappointing.  An overwhelming majority of Trump’s voters (and a large minority of Biden’s voters) feel this was a dishonest election.  A judicial review would provide some comfort to those citizens that perceive real harm by the elitist establishment class.  Failure to recognize this feeling and examine it increases their discontent and isolation. Now the battle cry of “stop the steal” will reverberate for years.  Perhaps there is fear that evidence of irregularities would demonstrate the real corruption of the establishment and swamp -- the thirst for power.  If this was a consideration, it is disgraceful!


After SCOTUS's knife in the back, what Trump must do now

By C. Edmund Wright

Today, Donald Trump is the most dangerous man on the planet.  At this moment, America needs him more than he needs America.  Trump could shoot the biggest middle finger ever to the entire nation, retire to a private island, or his penthouse, or his Florida compound, overcook his prime steaks and douse them with ketchup, and really — who could blame him?  It's not as if he'll outlive his money.  He doesn't need us.  He doesn't need anyone.  He has "F-U" money, and unlike others with big money — such as Nancy Pelosi and Dianne Feinstein and everyone ever named Kennedy — he doesn't have this sick psychotic need to rule over others for 60 years of government life.  Trump is the freest man on the planet tonight.  He needs nothing. 

We, however, are no longer the freest people on the planet.  We need some help.

Our feckless Supreme Court has chosen guaranteed cocktail party invitations with the beautiful people in the swamp over the Constitutional Republic — and favored phony pieces of mailed ballots and theoretical Dominion algorithms over flesh-and-blood voters.

As it stands, President Donald Trump faces what may be the most distasteful test of patriotism any president has ever faced.  And it may be among the most important ever as well.  To be fair, this is not the horrible choice of instantly killing hundreds of thousands of non-combatant citizens — including kids — the kind of decisions surrounding the bombings of Dresden, Hiroshima, and Nagasaki in World War 2.  Clearly not.  But on a personal gut level, it must be an even more bitter choice.  And again, in this, we need him more than he needs us — or anyone, or anything. 

We will find out whether or not Trump can maintain his love of country and commitment to duty, just hours and days after that country's core institutions have proven to be incredibly corrupt and immovably stacked against him and his voters.  Can he muster enough love of America to overcome what must be a well earned deep well of hate and resentment toward this nations' highest court, its entire media complex, the entertainment industry, and the entire educational establishment?  After four years of unprecedented and unimaginable hate and lies from all quarters, can he possibly still give a damn? 

I'm not sure I could.  And I don't have F-U money to fall back on. 

The question now is, will he muster the energy to do the right thing?  The right thing is to somehow swallow this absurd and evil election result and soldier on to Georgia once again to try to salvage the Republic by supporting two Republican senators hardly worthy of mention.  Donald Trump deserves better.  We all deserve better.  And it is the fact that we all deserve better, and the fact that Trump seems to care about such things, that gives me hope. 

As we know, 50 thousand Trump voters can fill a stadium or a huge field — whereas Biden can't draw a baker's dozen with free ice cream.  However, 400 thousand Biden voters can fit in a small mail truck, or perhaps an even smaller thumb drive.  It is this unsettling knowledge that threatens the upcoming Georgia Senate races, and with it, the future of the Republic.  There's no doubt that Georgia conservatives would defeat the Dems probably 60-40 in a fair fight.  But what are the odds of that? 

The question Georgians must be asking is, why should I go stand in line for hours to vote one time, when Stacy Abrams can find half a million votes hidden in her 3 A.M. cheeseburger combo?  It's a fair question.  My gut tells me that only one man can convince the squeamish to keep on keeping on.  It's the only man who can draw Rolling Stone–sized crowds to a political rally. 

I'm not sure we could have survived four years of Hillary on the heels of eight disastrous years of Obama.  I'm quite sure we cannot survive four months or whatever of Joe Biden, followed by 44 months of Harris-Pelosi-Schumer rule of Obama's third term.  Trump can survive.  His family can survive.  They have the means to live above the fray.  Most of us do not. 

But I think and hope he knows that.  And while the passive-aggressive jerk in me — once removed — almost would take some perverse pleasure in him giving the entire nation the middle finger, the father, grandfather, businessman, and patriot in me hopes he is able to summon his better angels for one more fight in Georgia. 

It's a big, big ask.  It's a lot to much that I can't imagine it.  But Mr. President, we need it.  The extremely average Kelly Loeffler and David Perdue might prevail without you, but it's a much safer road with you.  You don't owe it, but you didn't owe the last four years, either.  So I'm asking. 

Edmund Wright is long time contributor to American Thinker, Breitbart, Newsmax, The Rush Limbaugh Show, and Talk Radio Net and the author of numerous political books.