Who has the power to appoint presidential electors?
Now that inferior election officials in Arizona have rejected a legally issued legislative subpoena from the Arizona Senate Judiciary committee to turn over Dominion machines and software for inspection, the Legislature of Arizona must use its enforcement powers to compel these officials to respect their plenary authority over presidential elector appointment.
But what enforcement authority is available to the Arizona Legislature? It's not the Judiciary. And it's not a sheriff, or state capital police. The Arizona Legislature has plenary authority over appointing presidential electors. All it has to do is self-convene by quorum in each branch, or by joint ballot, then vote to send Trump electors; then send the slate to Washington, D.C. That's how you enforce the subpoena.
But then you do one more thing, Arizona Legislature. You sprint into federal district court, and you demand a Writ of Prohibition against Vice President Pence, ordering him not to open the previous slate of presidential electors sent by Arizona. And you will win that writ. Here's why:
3 USC §§5–15 ARE UNCONSTITUTIONAL
Congress cannot order a state Legislature regarding how to exercise its plenary authority. All Congress can do is set the time presidential electors must be appointed (see the federal Election Day statute) and when electors must meet and give their ballots. My previous report on the timing proved that the hard deadline is January 4, 2021 and that December 14 was not the last possible date. There's still time for each contested result to be set straight by the state Legislatures.
Everyone should read and study the undisputed SCOTUS precedent on plenary authority of the state Legislatures over choosing presidential electors, McPherson v. Blacker, 146 U.S. 1, 36 (1892):
'Whatever provisions may be made by statute, or by the state constitution, to choose electors by the people, there is no doubt of the right of the legislature to resume the power at any time, for it can neither be taken away nor abdicated.'
Unfortunately, too many state Legislatures think, or at least want you to think, that they had the power to abdicate plenary authority over presidential electors when they allowed a popular vote. No. The Legislatures did not abdicate authority, nor could they have abdicated such authority, according to the United States Supreme Court's holding in McPherson v. Blacker.
We understand that feckless politicians want badly to pretend they have abdicated their powers, but it's a lie, a delusion, an illusion, attempting to make you believe that nothing can be done. I call foul on all state Legislatures who are running this cowardly play.
Michigan, the Supreme Court held that the election there was illegally conducted as to indefinitely confined voters. Truly handicapped people deserve equal protection of law. Those handicapped people saw their votes nullified by criminals who stole from them — a courtesy the Legislature designed to protect their rights. Those criminals parked in handicapped spaces. Where is the Wisconsin Michigan Legislature now? Why aren't legislators taking action? They know that close to 200,000 of those ballots were illegally cast. What more do they need? And like Arizona, Wisconsin Michigan has enforcement power. It is plenary, and it cannot be abdicated.
The words "at any time" are unambiguous, but they must be read in light of the power of Congress to set the time. But "time" is the only power Congress has over electors. Congress cannot choose which slate of presidential electors will be counted on January 6. This is why 3 USC §15 is unconstitutional versus the plenary authority of state Legislatures, and this is why they must do two things fast:
- Resume your plenary power to choose electors "at any time" immediately, and then ship the slate to Congress.
- March into federal district court for a Writ of Prohibition preventing the vice president from opening any other slate.
If the district court fails to follow the law, appeal up to SCOTUS, and you will win.
Texas lost at SCOTUS, but did anyone notice how fast the Court handled the issue? Lightning fast. That is what everyone needs to take away from the Texas suit. Texas did not have standing. SCOTUS did the right thing in rejecting that case. But the Court did send a clear signal that it will act fast when states come before them as to presidential electors.
If the Arizona Legislature will enforce its subpoena by using the nuclear option, nobody will stop it. All the legislators have to do to turn the tables is self-convene and vote on a new slate of presidential electors. Suddenly, it will be the Biden team running to court, and time won't be on their side, nor will law.
Only the state Legislatures have plenary authority over which electors they determine. The governors, secretaries of state, attorneys general, election boards, Congress, and the vice president of the United States, all have absolutely zero percent authority over the choosing of presidential electors under our federal Constitution, and all judicial precedents issued by the United States Supreme Court support such plenary authority.
The only thing standing in the way of the Arizona state Legislature, and the other state Legislatures, is will. Do the legislators have the will to follow the law? Which side of history do they want to be on? Because everyone knows that more and more evidence is coming. The state Legislatures are the tribunals given umpire/police power over popular elections for presidential electors. The Framers put them in this position, and the Constitution binds them to this power. They cannot run from it. Indecision is decision.
I will close with a judicial statement by Justice Thomas in 2013 regarding the plenary authority of state Legislatures in appointing presidential electors (emphasis added):
2. This Court has recognized, however, that 'the state legislature's power to select the manner for appointing [presidential] electors is plenary; it may, if it chooses, select the electors itself.' Bush v. Gore, 531 U.S. 98, 104, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000) (per curiam) (citing U.S. Const., Art. II, § 1, and McPherson v. Blacker,146 U.S. 1, 35, 13 S.Ct. 3, 36 S.Ct. 869 (1892)) ... Constitutional avoidance is especially appropriate in this area because the NVRA purports to regulate presidential elections, an area over which the Constitution gives Congress no authority whatsoever. Arizona v. Inter Tribal, 570 U.S. 1 (2013) (Footnote 2, J. Thomas, Dissent.)