The Supreme Court vs. Pennsylvania

The U.S. Constitution was directly violated in the presidential election in Pennsylvania and half a dozen states. A new friend of the court brief filed last Thursday explains in the U.S. Supreme Court, in the case of Joseph B. Scarnati v. Pennsylvania Democrat Party, et al. 

First, can anything be done?  Each state legislature has the power to cure invalid elections in their state by directly appointing the Electors from their state who will vote in the Electoral College on December 14, 2020.  We do not lack legal and constitutional remedies.  We lack elected officials with guts.

The Supreme Court brief chronicles many times when State legislatures have directly chosen the Electors.  3 U.S. Code § 2 makes clear that the Legislature can directly appoint Electors even after election day if there is a failure for any reason of an election:

3 U.S. Code § 2  Failure to make choice on prescribed day

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 White House Watch Fund, Conservative Christian Center of Pennsylvania, Americans for a Conservative Agenda, and individual Pennsylvania and other voters filed a brief as independent interested parties.

The U.S. Constitution requires that only state legislatures can set the rules for choosing Electors who elect a U.S. president.  Article II, Section 1, Clause 2 of the U.S. Constitution requires that  "Each State shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole of number of Senators and Representatives to which the State may be entitled in the Congress…"[emphasis added]. 

The brief clarifies that the selection of a president is a federal function.  It is a process of the U.S. government for choosing the federal president.  The legislature is not setting laws governing within their state.  Therefore, all the usual mechanisms of a state do not play a role.  This does not involve the Governor, the courts, election officials, etc.  Second, the Constitution delegates a role only to the legislatures of the states.  Therefore, only the election laws passed by the legislature control.  Third, by habit we hold combined presidential, state, and local elections on the same day together.  But the constitutional requirements for president do not change.  Fourth, therefore, changes made to the rules in 2020 are unconstitutional because the Elector Clause gives authority only to the state legislature.  State courts and election officials can modify rules for state elections, but not for president.

Like massive deviations in many states this year, the Pennsylvania Supreme Court modified the deadlines and requirements for absentee ballots.  The brief argues that state courts can modify the process for state and local elections, but the election for president comes under different laws.  The U.S. Supreme Court with only eight of its nine seats filled was deadlocked and did not intervene before the election.

Similarly, the Secretary of State in Pennsylvania threw out the Pennsylvania General Assembly’s statutory requirement that the signatures on absentee ballots must match the signature on the corresponding voter registration card.  This change is also unconstitutional under Article II, Section 1, Clause 2 of the U.S. Constitution.  Although the Pennsylvania Supreme Court agreed with the change, it gets no voice in the matter under Article II, Section 1, of the U.S. Constitution.

The Supreme Court should declare that only the legislature has a voice in the selection of the president, and interference from every other state official and agency, including the courts, is not recognized different from legislature’s rules is unconstitutional. 

At this point, I can only rely on estimates by others.  But applying the correct constitutional standards would likely swing half a dozen states from Joe Biden to Donald Trump, and give Trump a majority in the Electoral College.  Trump would win re-election as President.

Rudy Guiliani explained in a hearing on November 25, 2020:

“You sent out in the Commonwealth of Pennsylvania 1,823,148 absentee or mail-in ballots. You received back 1.4 million approximately. However, in the count for president, you counted 2.5 million. I don’t know what accounts for the 700,000 difference between the ballots you sent out and the number of ballots that ended up in the count,” said Giuliani.

Absentee ballots received after the deadline set by the Pennsylvania General Assembly cannot be constitutionally included.  Absentee ballots without signatures matching voter registrations cannot be counted.  Ballots without witness signatures are invalid.  Ballots without the proper submission inside the “secrecy envelope” design are invalid.  In fact, ballots which were not observed by Republican Party officials are unconstitutional and must not be counted.  Where Pennsylvania’s Electoral Code requires that party observers have a right to witness the counting of in-person and absentee ballots, any ballot counted in violation of those requirements is an illegal vote.  Basically, any ballot that does not comply with the Electoral Code is invalid

News reporting indicates that vote totals were published as of the statutory deadline for absentee ballots.  Therefore, it should be possible to use the totals as of the statutory deadline.  

However, we need to offer the Supreme Court legal claims that are neutral, clear, objective, and unbiased.  The conservative wing of the Supreme Court will only respond to a pure constitutional issue that is universally true, not just for one election, and which does not cast them in the light of choosing the president. 

However, ballots sent by people who don’t actually exist – or multiple ballots from the same person -- do not have constitutional rights. The Pennsylvania General Assembly heard public testimony of ballots with no vote entered for President being filled in by election staff by the hundreds in just one case alone.  We have testimony of ballots being rescanned over and over to fabricate votes for Joe Biden. 

Legal challenges are confusing.  As I have explained on Action Radio (at time 45:15 minutes), there are many different kinds of lawsuits flying back and forth all at different stages. 

Recounts do not depend upon fraud or wrongdoing.  Laws vary from state to state, but vote margins that are small typically get a recount automatically.

Sidney Powell and other campaigns and political groups filed massive lawsuits proving extensive fraud in the election.  But these are independent channels.

Party organizations and candidates are challenging violation of election procedures at the state level.

But universal, neutral constitutional challenges have the best chance of winning over the Amy Coney Barrett wing of the current high court.

Image: Pkist