After listening to the Texas House State Affairs Committee testimony about Committee Substitute HB 3 on March 11, 2021, I will be submitting on behalf of the Texas Constitutional Enforcement eight listed amendments below.

Click here for current CSHB 3 text.  Click here for a PDF version of the proposed amendments below.  Click here to see the archived video of the hearing.  The layout, discussion, and testimony began at about the 2:20 timestamp and goes for well over 6 hours.  The citizen testimony began around time stamp 5:39.  My testimony can be found at time stamp 5:52.  These amendments address my comments and the testimony of others.

A lot of the discussion focused on how to get the legislature involved to reign in the governor or other executives if they become dictatorial.  I came up with my best solution on that in Amendment 7.  But I realized that most of the destruction wrought in 2020 was because there were not enough explicit limitations on the delegation of power to the executive in the original Texas Disaster Act.  Most of these amendments fix that problem by insuring that future executives will not think they have the power to become dictators or violate the natural rights of Texans as they assist our health professionals cope with increased demand.

Amendment 1 – Prohibition of Command and Control Interference Between Patient and Doctor 

Idea:  Many people testified about how the edicts by the governor to health care facilities to stop “elective” surgery in an attempt to free up space for anticipated COVID patients had the effect of causing deaths from other diseases like cancer that could have been avoided if not for the edict.  Sadly, it has been reported that many health institutions lost money due to these edicts because COVID demand did not materialize and desperately needed resources went un-utilized.

The irony of this action is that while the propaganda was telling people to trust the experts, the government denied health care professionals with the most medical training and experience as well as the knowledge of the demand situation on the ground to make the decisions they were best suited and situated to make.

The medical profession is trained to handle triage in high demand situations.  Command and control in such situations kills people.  Government’s role in high demand situation is to help surge resources – including personnel, housing, and PPE to meet demand.  If it tries to manage demand or privilege those with one disease over another, the deaths it causes can be higher than that caused by the pandemic.

Government can legitimately help surge resources to meet demand for health care services, but it cannot legitimately or effectively tell health care service providers how to do handle a surge in demand, or impose dictatorial restrictions of natural rights in an attempt reduce demand for health care services.

Suggested Amendment:  In Sec. 418A.004, add the following limitation:

(11)  permit any governmental official to instruct a health care facility or professional to give preference for one patient or disease over another or defer treatment to some to free space for others.  Triage in high demand for health services is the responsibility of the provider, not government.

Amendment 2 – Prohibition on criminal penalties with blank-check crime definition

Idea:  If Article 2, the Separation of Powers provision of the Texas Constitution, means anything, it means that the executive cannot define the criminal act via executive order to which a statutorily pre-defined criminal penalty is applied.  Combining the definition of a crime with the enforcement of that crime into one branch is a quintessential violation of separation of powers.

Saying that prohibition of an action to which a criminal penalty is attached is not a law, but has the “force and effect of law” is a deceptive sleight-of-hand.  A definition by an executive of prohibited action to which a criminal penalty is assigned is a rotten rose that by any name smells as foul.

No open-ended criminal penalties should be included in either HB 3 or the original Texas Disaster Act.

Removing the open-ended criminal penalties from HB 3 and the Texas Disaster Act will do more to stop future tyranny than any other legislative action.

Suggested Amendment:

1. Strike in its entirety, Sec. 418A.151 – PENALTY FOR FAILURE TO COMPLY WITH PANDEMIC COMPONENTS OF EMERGENCY MANAGEMENT PLAN

2.      Strike in its entirety, Sec. 418.173 - PENALTY FOR VIOLATION OF EMERGENCY MANAGEMENT PLAN.

Amendment 3 – Lockdowns Never Again 

Idea:  It is lockdowns that created the economic damage and destruction of livelihoods, life savings, businesses, and dreams of millions of Texans, destroying the Texas Miracle. Lockdowns are tyranny that violates the individual, natural rights protected in the Texas Bill of Rights that “shall forever remain inviolate.”  No branch of government, executive or legislative has the power to impose lockdowns. As such, any response to this past year must clearly and unambiguously prohibit future lockdowns. Looking back, statistics now show that the only thing lockdowns flattened were liberty, lives, livelihoods, and health care. 

Suggested Amendment:  In Sec. 418A.004, add the following limitation:

(12)  permit any governmental official to force a closure of the business or limit the capacity of use of a business.

 Amendment 4 – No Mask Mandates 

Idea:  Mask mandates violate due course of law as protected in Article 1, Section 19 of the Texas Constitution.  A fundamental principle of due course of law is presumption of innocence until guilt is proven.  Mask mandates presume everyone guilty of being a contagious threat to others, even though only small fractions of the population might be unknowingly dangerous to others.  Mask mandates build the presumption of guilt into the definition of the crime when there is no probable cause for such presumptions. Mask mandates are implemented in a way that disrespect many individual’s real inability to wear them. Mask mandates are based on junk science.  Although theories abound about why they help, the actual controlled tests of mask usage and actual statistical comparisons between similar demographic regions with different mask policies show no appreciable benefit from mask mandates, Mask mandates would never pass a scientific reliability causation challenge in a tort case in Texas. Mask wearing creates psychological and physical trauma in many. 

Suggested amendment:  In Sec. 418A.004, add the following limitation:

(13) permit any governmental official to impose mask mandates on the general public or fine businesses for not imposing mask mandates in their facilities. 

Amendment 5 – No forced vaccinations / immunizations 

Idea:  Every person has the natural, unalienable right to refuse vaccination.  Explicit prohibition of the power to force vaccination or make vaccination a condition of the provision of governmental service, travel, or employment should be included in the bill. 

Suggested amendment:  In Sec. 418A.004, add the following limitation: 

(14)  permit any governmental official to force any individual to be vaccinated or to make vaccination a condition of travel, employment, or provision of any governmental service. 

And, in Texas Health and Safety Code, Chapter 81.  Communicable Diseases, Subchapter E.  Control, Section 81.085 Area Quarantine; Criminal Penalty, Subsection (i) shall be stricken as follows:

(i)  On request of the department during a public health disaster, an individual shall disclose the individual's immunization information.  If the individual does not have updated or appropriate immunizations, the department may take appropriate action during a quarantine to protect that individual and the public from the communicable disease. 

Amendment 6 – No delegation of modification of election law to the Secretary of State

Idea:  Article 2, the Separation of Powers provision of the Texas Constitution prevents the legislature from delegating the power to modify election law to the Secretary of State.  It is bad enough to delegate such power to an elected governor.  It is even worse to delegate to an unelected executive.

Suggested Amendment:  Strike in its entirety, 418A.103.  LIMITATION ON ALTERATION OF VOTING PROCEDURES. 

And, in Sec. 418A.004, add the following limitation:

(15) delegate to any governmental official the authority to modify the Texas Election Code.

Amendment 7 – Extension of Pandemic Disaster Beyond 30 Days Requires Legislative Approval 

Idea:  Require legislative approval to extend a Pandemic Disaster beyond 30 days and prevent the call by the governor for a pandemic disaster that is the same or substantially similar to any declared disaster within the preceding 12 months. Stating this that simply forces the governor to call a special session under pre-existing rules if he thinks a Pandemic Disaster needs to be renewed or restarted for the same disease. This approach does not need a constitutional amendment and does not require a Pandemic Disaster Legislative Oversight Committee. 

Suggested Amendment:   Remove Section 1 (which creates the Pandemic Disaster Legislative Oversight Committee) of the current CSHB 3 in its entirety. And, replace Sec. 418A.053 with the following: 

Sec. 418A.053.  DECLARATION OF STATE OF PANDEMIC DISASTER.

(a)       The governor by executive order or proclamation may declare a state of pandemic disaster if the governor determines that a state of pandemic disaster is occurring in this state or that the occurrence or threat of a pandemic disaster is imminent, and may terminate the pandemic disaster via executive order or proclamation if the governor determines that it is no longer needed.

(b)       A state of pandemic disaster may not continue for more than 30 days unless renewed by the legislature.

(c)        The governor may not declare a state of pandemic disaster based on the same or substantially similar finding for which a state of pandemic disaster was declared within the preceding 12 months.

(d)       An executive order or proclamation issued under this section:

(1) must include:

(A) a description of the nature of the pandemic disaster;

(B) a designation of the areas affected or threatened; and

(C) a description of the conditions that caused the pandemic disaster or allowed the termination of the pandemic disaster; and

(2) must be posted on the Internet website of the governor ’s office and any state agency whose authority is affected by the order or proclamation.

(e) The governor shall:

(1) promptly disseminate an executive order or proclamation by any means intended to bring its contents to the attention of the public; and

(2) unless the circumstances related to the pandemic disaster prevent or impede the filing, promptly file the order or proclamation with:

(A) the division;

(B) the secretary of state; and

(C) the county clerk or municipal secretary in each  area  in  which  it  applies.

Amendment 8 – Explicitly state that a Pandemic Disaster does not create a new legal duty in a negligence claim 

Idea:  Prohibit anyone from thinking that the declaration of a pandemic disaster creates any new legal duty for a negligence claim. 

Suggested amendment:  In Sec. 418A.004, add the following limitation: 

(16)  create any new legal duty for a negligence claim.

This is another way of describing the mission of Texas Constitutional Enforcement.

Hat tip to Glenn Beck for coining the term. He came up with "Sanctuary State for the Bill of Rights," but we think it should be for the entire Constitution.

Mark Meckler, the founder and president of Convention of States (CoS), appeared on Glenn Beck on Monday, January 26, 2021, to discuss the progress of the application for a convention that CoS has been pushing (and that passed in Texas in 2017).

Mark told Glenn that 16 states of the necessary 34 have made the application so far. Glenn asked the question about how soon Mark expected the application to reach the 34 states that will trigger a convention, clearly expecting it to get done quickly. He was disappointed to hear that Mark did not expect the number to be completed until the end of 2024.

When asked, Mark blamed the John Birch Society for slowing the progress. He also said that only 31 state legislatures are GOP controlled, and that Democrat legislatures are less likely to pass the CoS application.

Toward the end of the interview, pretty obviously because he was hoping that CoS could be a solution to our short term tyranny problem, asked about turning states into "Sanctuary States for the Bill of Rights." He said his idea of that was that when the federal government was violating the Constitution, states would say, "We are not going to do that. We are just not." He worried that the feds would intimidate states into not doing that by withholding federal funds. Then he asked Mark Meckler what he thought about that as an interim solution until CoS kicked in.

Mark Meckler said he thought that was a fine idea!

For those of you who have been living in the trenches fighting for constitutional enforcement, you recognize that this is HUGE news. To my knowledge, Glenn Beck has never talked about our idea. It is fantastic that he is thinking about it, and I love the name he gives it. And, the other change, here, is that this is the first time I have heard a CoS leader acknowledge that they thought constitutional enforcement was constitutional. Historically, they have said that constitutional enforcement was illegitimate and that CoS was the ONLY way to stop the federal government from running roughshod over us.

Mark also mentioned his opposition to secession along the way, even though it is clear that he thinks the push for it very evident. His main objection to secession is that he does not think it can happen peacefully.

We in Texas Constitutional Enforcement will keep on preaching and advocating for the Lone Star State unilaterally enforcing the Constitution within its borders, using the Texas Sovereignty Act (HB 1215) as our flagship vehicle.

I hope that Glenn Beck figures out that the Texas Sovereignty Act is the mechanism by which Texas becomes a Sanctuary State for the Constitution and Bill of Rights!

Note that officially, this group does not take a position on CoS or secession. Our uniting principle is that we want our liberty protected, and we think that enforcing the U.S. Constitution against the feds (and the Texas Constitution against state officials) is the strategic way to win our liberty back. We have people in this group who support CoS and vehemently oppose it. We have people in this group who want to move quickly to secession and those who do not think that the prudent path to liberty yet. We recognize proponents of CoS and secession as people who share our passion for being free and consider them to be fellow travelers. We just prioritize constitutional enforcement as the quickest path to liberty.

As of January 20, 2021, the federal government is in the hands of those who would destroy the Constitution and the liberties of Texans.

Texans desperately need their elected officials to protect them from the coming tyrannical onslaught. 

Just in time, Representative Cecil Bell, Jr. has filed the Texas Sovereignty Act in the 87th Texas Legislative Session in the Texas House on January 20, 2021.  The bill number is HB 1215.

Summary of Texas Sovereignty Act
HB 1215

Basic Approach

Provide streamlined approach for the Texas legislature to formally declare that specific acts of the federal government are unconstitutional.  Creates a standing legislative committee to review federal actions for constitutionality.  The full legislature votes on declared unconstitutional acts and the governor reviews.  Federal actions subject to Texas review are legislation, regulations, executive orders, federal judicial orders or decisions, and treaty enforcement.

Once an act is declared unconstitutional, law enforcement can arrest and prosecute federal agents who attempt enforcement action under the color of declared unconstitutional acts under the Texas penal code, including explicitly, the Texas Official Oppression Act (Texas Penal Code 39.03).  While maintaining the ability of local district and county attorneys to prosecute, the attorney general is also given prosecutorial power to prosecute federal agents if a federal act has been declared unconstitutional.

Details 

• Explicitly states that this bill does not prohibit a public officer who has taken the oath from interposing to stop acts of the federal government which in the officer’s best understanding and judgment, violate the Constitution.
• Includes canons of construction guiding the analysis of the constitutionality of federal acts. The canons urge reliance on the text and structure of the Constitution and in cases of ambiguity, on sources that evidence original intent.
• Allows Texas citizens to seek an opinion about the constitutionality of a federal action in a Texas court.

Rationale

Our state and nation are dying because the federal government is violating the Constitution every day in many ways – and no one is stopping them.  The feds will never limit their own power.  Texans must honor their oaths to defend the Constitution, and stop federal action in Texas that violates the Constitution.  This requires the exercise of independent judgment about constitutional meaning, rejecting the notion that the federal judiciary is the sole or final arbiter of constitutional meaning.

This approach relies completely on Texans and Texas officials to secure the liberty of Texans, and can be implemented immediately.  No relying upon, or waiting on other states to secure our liberty.

Click here for a downloadable PDF one page summary of the Texas Sovereignty Act.

Representative Bell has filed this bill in the two previous Texas legislative sessions.  In 2019, it was HB 1347, and om 2017, it was HB 2338.  In 2017, Senator Brandon Creighton filed it in the Texas Senate as SB 2015.

In 2017, the bill gained 5 joint authors and 8 co-authors.  A substitute passed out of committee in the House and died in Calendars.  The language that passed out of committee in 2017 is the starting point for what was filed in 2019 and 2021.

At the heart of the constitutional enforcement idea is independent judgment AND action about constitutional meaning - especially by those serving us in government.

I have laid out what I and others think the Constitution says about the powers and duty of Mike Pence when he presides over the electoral vote count. I have also presented Jenna Ellis' tweak to that proposal.

The fact is, that IF Pence is persuaded that he has the power and duty to stop the illegality and the unconstitutionality and the fraud and the coup that is in process of being perpetrated, there is nothing that will stop him in his implementation.

And note, those engaged in the coup are asking who will stop them. Mike Pence is the man who can - and he has a duty to do so.

Dear Vice President Pence:

I urge you to read and adopt the constitutional understanding urged in Gohmert v. Pence in the count of the elector votes on January 6.

I know it would be easier for you to take the actions that are within your plenary constitutional power and duty if the federal judiciary issued an opinion in agreement with the reasoning in the filings of the plaintiffs in Gohmert v. Pence, but your oath is to your best understanding of the text of the document and intent of the framers, not what others, even a court, tell you it means.

To save the Constitution, the Union, rule-of-law, the trust of the American people in our government, and liberty, I believe you have a constitutional duty to do the following on January 6:

1. When you are confronted with the choice of which envelope of electoral certificates you are to open and count from Arizona, you should declare that you find the election in Arizona was not conducted in the manner the Arizona legislature directed, and therefore there are no legitimate electors appointed from Arizona to count. (If the Arizona legislature self assembles and directly appoints the GOP electors who have already voted for Trump, you should declare that the Elector Clause in Article II, Sec. 1, Clause 2 of the Constitution requires you to count the elector slate chosen by the legislature.)
2. If as the Electoral Count Act in Title 3 of the United States Code Section 15 directs, a written objection to your count is made by one or more House members and one or more Senators, you should rule the objection out of order because that section (3 U.S.C. 15) and section 5 is unconstitutional. (You can see the logic for that position in the filings of Gohmert v. Pence.  I will summarize that logic below.)
3. Because of the known facts of failure to comply with state election law in Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin, (and maybe other states, including the dueling elector New Mexico) the procedure used for Arizona should also be followed for them.
4. Note that the Twelfth Amendment sets the number of electoral votes to determine who wins as “a majority of the whole number of Electors appointed.” If you declare that an illegally conducted election appoints no one, then the electoral votes for the states who have conducted illegal and unconstitutional elections are not counted in the numbers needed to make a majority, and the majority of the states that did appoint electors will determine who becomes President and Vice President.

Here is a summary of the logic of the constitutional reasoning in Gohmert v. Pence by the plaintiffs:

1. The Electoral Count Act, Section 15 submits the dispute over the “count” of electoral votes to both the House of Representatives and to the Senate. The Twelfth Amendment does not delegate that power to Congress.  The Twelfth Amendment delegates the power to count to the President of the Senate alone.
2. The only role Congress plays in choosing the President under the Twelfth Amendment is when no one candidate receives a majority of the electors appointed. When that condition applies, it is the House that picks the President by state delegation.  Nowhere does the Constitution give any role in picking the President to the Senate.
3. The Electoral Count Act’s design to default in dueling elector controversies to that certified by the governor of a state is unconstitutional because the Elector Clause in Article II, Section 1, clause 2 gives plenary power to the state legislatures to make this decision. The Twelfth Amendment puts the decision on which of two dueling slates of electors, if any, to count squarely on you as President of the Senate.
4. The Electoral Count Act, as a procedural law for Congress, is unconstitutional because it is an attempt by one legislature to bind the legislative authority of its successors, a notion which centuries of law and the Constitution rejects.
5. The Electoral Count Act violates the Presentment Clause of Article I, Section 7, Clause 3 because it tries to cast a vote or resolution without presenting it to the President for approval.
6. By purporting to be a law that governs the procedure of the House and the Senate, the Electoral Count Act violates Article I, Section 5, clause 2 by interfering in each chamber’s plenary power to set their own rules of procedure.
7. The Electoral Count act violates the doctrines of non-delegation, separation-of-powers, and anti-entrenchment.

The happy situation here is that you, by acting according to your best understanding of your constitutional power and duty and the facts, have the power to save the very document you have sworn you will follow.

I am not the only one who has said that if the coup in progress is allowed to prevail, rule-of-law, our Constitutional Republic, potentially our Union, and our liberty will be greatly damaged, if not lost.  And restoring constitutional, limited government might not happen for generations.  Indeed, if the theft of the election is allowed to stand, we may enter that thousand years of darkness that Ronald Reagan talked about in his “Time for Choosing” speech in 1964.

I believe you to be a man guided by morality and principle.  It could be that you are hesitant to exercise your constitutional power to stop the coup because you know that it will be viewed by some as self-interested.  After all, if you do your constitutional duty, you will gain another term as Vice President.

Please understand that this is a decision based on principle – the principles of the Constitution and the principles that stealing is wrong and violating the individual, natural rights of the citizens of the United States is wrong.  The people you will be serving by following the Constitution are not only current citizens of the United States, accurately representing their true votes.  But you will also be serving millions if not billions of Americans and others around the world by preventing them from living miserable lives under tyranny. By exercising your constitutional duty, you will not be engaged in a selfish act, but a selfless one.

I will remind you that two Presidents of the Senate have exercised their plenary constitutional power to count disputed electors they thought most proper in our history.  One was Thomas Jefferson who counted electors that ultimately made a difference in him becoming President.  I am glad for America that he did.  It meant that we were free much longer than we otherwise would have been.

I have one alternative procedural path you may wish to take that may give the American people more information from which they can judge your decision in this matter.  Although I believe you put yourself in the best procedural posture for a correct count by following my first procedural point above, you may choose to use the debate that comes from Section 15 of the Electoral Count Act when a decision is counted and objected to, to educate the American people.

So, call this alternative 1A.  When Arizona comes up, note that there are two sets of electors and declare that it is your intent to count the electors certified by the governor (the Biden votes).  Then, at least one House and one Senate member will present an objection in writing to that count using the procedure in Section 15 of the Electoral Count Act.  This will split the two chambers apart for debate, where evidence of the coup can be presented to the American people, many of whom because of massive media and big tech censorship, will hear it for the first time.  After such evidence has been presented, you can sustain the objection and refuse to count any Arizona votes after seeing the evidence of how the election was not conducted in accordance with the manner directed by Arizona law.

If you choose alternative 1A, you still will have to declare the default provisions of Section 15 of the Electoral Count Act to be unconstitutional and to declare that it is your decision to make about what votes, if any, to count under the Twelfth Amendment.

In addition to the filings in Gohmert v. Pence, I have read several other articles on this topic which may interest you.  Here is one at The Epoch Times by Peter Svab.  And another at American Thinker by Ted Noel.

Know that you are in our prayers as you make this momentous, historic decision.

Toward liberty,

Tom Glass
Hockley, Texas
President, Texas Constitutional Enforcement
www.txce.org

Click on this link to read the original filing in Gohmert v. Pence attempting to have two sections of the Electoral Count Act declared unconstitutional and to declare that the President of the Senate (Vice President Mike Pence) is the sole arbiter of what electoral votes are counted from contested states.

I consider it to be a beautiful and sound piece of legal and constitutional reasoning, well worth the time of any citizen interested in constitutional government.

The case has been assigned to Judge Jeremy D. Kernodle in the Tyler, Texas in the Eastern District Court, a Trump appointee.

The attorney who signed this complaint is William Lewis Sessions of the Dallas law firm of Sessions & Associates. If the name sounds familiar, he is the son of former FBI director fired by Bill Clinton, William S. Sessions.  He is also the brother of former Congressman and Congressman-elect Pete Sessions.

This is a generic letter designed to be sent to the GOP state legislators of Pennsylvania, Michigan, Georgia, Arizona, and Wisconsin.  See this link for the contact information for them.  I urge you and as many others as you can persuade to send this letter or something modified to suit your style as soon as possible.  For optimum results, they need to act by end of day Sunday, December 13.

Subject:  Please Exercise Constitutional Power and Duty to De-Certify Elector Election and Directly Appoint Electors

Senator [or Representative] [Fill in Blank]:

Please act to de-certify the presidential elector election in your state and directly appoint the GOP electors.  As I am sure you are aware, the deadline that maximizes success by this action is Sunday, December 13 because it will provide your approval of those electors meeting and voting on the date Congress has chosen, December 14, and then sending their results to the President of the U.S. Senate.

YOUR U.S. CONSTITUTIONAL POWER AND DUTY

I hope that you understand your Constitutional power and duty to take these actions.

The Source of Your Power

Art. II, Sec. 1, §2 of the U.S. Constitution says "Each State shall appoint, in such Manner as the Legislature thereof may direct . . ." the electors to vote for president.  The Supreme Court in Bush v. Gore put it this way, “the state legislature’s power to select the manner for appointing electors is plenary.”  531 U.S. 98, 104 (2000).  Webster defines plenary as “full; entire; complete.”

You Are the Fact Finder and the Judge of What Evidence is Germane and Credible and Which Burden of Proof to Apply

Part of your plenary power is oversight to determine whether the election was conducted in the manner your state’s legislature has directed in law.  Since you are the final decision maker, you get to – indeed are required to -- decide what burden of proof, what evidentiary standard, what evidence you consider, and the persuasiveness of the evidence you have seen.

If you choose, you can de-certify the election only because the law has not been followed in the conduct of the election.  You can place the burden on the people conducting and certifying the election to prove to you that the law was complied with.  And you can require that they prove it beyond a reasonable doubt.  Given the evidence available in your state, there is certainly reasonable doubt about whether your state’s election law has been followed and whether any results of the unlawful process are trustworthy.

The epistemological question we face is the reality that once illegal ballots have been mixed in with legal ballots, it is very difficult, if not impossible, to determine the extent of the corruption.  That is why it is important to get the rationale for your decision, the burden of proof, and the evidentiary standard down properly.

I have heard the Democrats and media imply that evidence has to be ruled upon by a fact finder in a court of law before you can make a decision about it.  That is simply not true under the Constitution.  In the elector selection process, plenary means that you decide everything and as the fact finders in this process, it is your judgment and wisdom that matters.

The Buck Stops With You

The Constitution does not allow you to sluff off this decision or your independent judgment to someone else.

The bottom line is that the buck stops with you on the selection of electors from your state.  The fate of rule-of-law, election integrity, and the future of our Republic and liberty fall squarely on your shoulders.

The Courts Might Opine on Whether Your Election Law was Violated, but You Alone Can Provide the Remedy

The U.S. Supreme Court might save you from having to do your duty to determine whether the election was conducted in the manner in which you directed.  I wouldn’t count on it.  But they might.

But even if they do, you and your fellow legislators alone still have the duty to remedy a failed, de-certified election.  You also have the unquestioned, unreviewable power to remedy the situation by directly appointing the GOP electors from your state.

Supreme Court precedent and federal law is clear about your ability to remedy a failed election for electors.  You can directly appoint GOP electors once the election is de-certified for lack of reliability.

“The State, of course, after granting the franchise in the special context of Article II, can take back the power to appoint electors. See [McPherson v. Blacker, 146 U.S. 1,] 35 (1892)“ ‘[T]here 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’” Bush v. Gore, 531 U.S. 98, 104 (2000).

The McPherson case quoted former Justice Joseph Story from his Commentaries on the Constitution where he said that “direct choice by the legislature” of electors “has been firmly established in practice ever since the adoption of the Constitution, and does not now seem to admit of controversy even if a suitable tribunal existed to adjudicate upon it.” (emphasis added).  Clearly the judiciary has never thought it had the power to tell state legislatures how to pick its electors.  The judiciary might opine on whether the election was conducted in the manner in which you directed, but I seriously doubt that it will remedy any deficiencies in that regard.

Chief Justice Fuller hammered the point home in McPherson: “The power and jurisdiction of the state is exclusive.” And “The question before us is not one of policy, but of power.”

Federal law also supports your Constitutional duty to provide the remedy.  Title 3 of the United States Code, §2 reads: “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.”

When Your State Constitution Constrains You and the U.S. Constitution Empowers You, Which is Supreme?

Answer:  The U.S. Constitution delegation of power to you is supreme over your state constitution.  If your state constitution requires a super majority for the legislature calling itself into session or even prohibits the legislature from calling itself into session, your U.S. Article II mandate overrules those state constitutional restrictions.  You can constitutionally call your legislature into session.  And it is your duty to do so under these circumstances.

Another angle on this action on behalf of your federally delegated powers is that a meeting to de-certify and/or directly appoint electors is not a special session as usually meant by that term.  It is an emergency meeting to fulfill federal constitutional duties.

While the following of the constitutional scheme is always to be admired, it is a misunderstanding of what the federal constitutional path and grant is to state that the state constitution prohibits your exercise of your plenary power.

It is indeed seemingly paradoxical that the Article VI supremacy clause enables state sovereignty against a state constitution, but once one applies the supremacy clause to Article II’s delegation of plenary power to you and your fellow legislators, it makes sense.

Put another way, plenary is just another way for saying no one will stop you.  Nor should anyone stop you from doing what is necessary to perform your constitutional duty to insure that the selection of presidential electors is done according to rule of law.

What Happens if You Don’t Remedy a Failed (i.e., un-certified or de-certified) Elector Election?

Answer:  You take your state out of the race and make it much more likely that the fraudulent/illegal election in your state will mean that Biden wins.

The Twelfth Amendment details how elector votes are to be counted.  The important words to be focused upon are “a majority of the . . . Electors appointed.”  We see in Article II that states appoint electors.  If every state and the District of Columbia (see the 23rd Amendment) appoints electors, the magic number of electoral votes needed to avoid kicking the decision to Congress is 270.

But what if you and your state legislature or a court de-certifies the election, but no remedy to appoint new electors is provided by you?  Your state is out of the game completely.  And THAT changes the number elector votes necessary (“a majority . . . appointed”) to pick the president without going to Congress.

Let’s do the math on one scenario. Assume that all five (PA, MI, GA, AZ, and WI) of the GOP controlled legislatures out of the six states in play (or a court) declare(s) the election fraudulent. And assume that the Democrat-controlled legislature in Nevada and the courts allow its governor to certify the Biden electors.  That would mean that the total electors appointed would be 465 instead of the expected 538. A majority for picking the president would then be 233. Before counting the six states in play, Trump leads Biden by 232 to 227. If Nevada is added to that array for Biden and if the 5 other states have walked off the field by refusing to appoint electors, Biden wins 233 to 232 without going to Congress.

The point is that stopping certification of your state’s election alone, without you directly appointing electors, is unlikely to stop the corruption of the election from rewarding the malefactors in your state with a Biden victory.

THE “RESULTS” OF A CORRUPTED ELECTION REPRESENT THE THWARTING OF THE WILL OF THE PEOPLE

Politically, the biggest argument against doing your duty to enforce the election laws of your state and the U.S. Constitution is the charge that by de-certifying and remedying that with direct appointment you are “thwarting the will of the people” or “reversing the results of an election.”

Those charges, of course, are completely untrue.  If the corruption in question produces reasonable doubt about the integrity of the “results,” they do NOT represent the will of the people.  Corrupted results represent a victory for those who would steal our rule-of-law, our Constitutional Republic, and our liberty.  Corrupted results represent the will of wannabe tyrants – not the people.

Put another way, a corrupted election no more represents the will of the people than a bank heist represents the will of the depositors.

SOURCES AND AUTHORITIES

I have done my own research on this topic by reading the Constitution, the Supreme Court precedent, the federal statutes in question, as well as the commentary by the Congressional Research Service.

The source that has most influenced me was the presentation of Chapman constitutional law professor John Eastman to a committee of the Georgia Senate on December 3, 2020.  This direct testimony and his answers to questions is a constitutional tour-de-force on the issues you face in this decision.  There is no better time spent than to watch the 37 minutes of this video if you have not seen it.  Professor Eastman makes clear that the plenary power delegated to you by the U.S. Constitution is supreme to your state constitution and statutes.  He says that means that you can call your chamber into session with a simple majority for this purpose, even if your state constitution says differently in other circumstances:

https://www.facebook.com/texasconstitutionalenforcement/videos/1354286434913314

I first started thinking about this issue after reading this article by Daniel Horowitz ( https://www.theblaze.com/op-ed/horowitz-yes-state-legislatures-do-indeed-have-the-final-say-over-this-election ).  That was a follow up to his original article (https://www.theblaze.com/op-ed/horowitz-state-legislatures-rectify-election-fraud ).

I found a great introduction to the federal statutes on the elector process at the Congressional Research Service:  https://crsreports.congress.gov/product/pdf/IF/IF11641

These two articles on the general topic of the role of the state legislatures in elector selection may be useful as well. The first is entitled, “State Legislatures’ Exclusive Power to Choose Electors.” ( https://www.texasfreepress.com/post/state-legislatures-exclusive-power-to-choose-electors )  The second is entitled, “Presidential Endgame Being Set Now.” ( https://www.texasfreepress.com/post/presidential-endgame-being-set-now ).

FALLBACK POSITIONS IN CASE YOU CANNOT PERSUADE YOUR FELLOW LEGISLATORS BY DEC. 13

The Rutherford Hayes Strategy

If your fellow state legislators fail to join you by December 13 in directly selecting electors, I have a fallback plan called the “Rutherford Hayes Strategy.”  Persuade the GOP electors in your state to meet on December 14, vote, and send their results to the President of the Senate.

This will buy you time between December 14 and January 6 when the envelopes are opened by Vice President Pence for you and your fellow legislators to directly appoint them.  When Vice President Pence is confronted with two slates of votes from your state, he will be constitutionally bound to use the elector votes from those you have appointed.  I wrote this article to discuss that idea more:

https://www.texasfreepress.com/post/independent-gop-elector-action-can-buy-time

The Election Day Failure Strategy

This might be called the “Never Retreat, Never Surrender” legal strategy.  The argument is that the federal statute says that a state has to select electors on one day, general election day, November 3, 2020.  If the selection is not made on that day, the statute says it is a failed election and the selection is void.  For the states in that position (one of which the author maintains is yours) to have valid electors, the state legislature must directly appoint them.

Here is the link to the paper on this topic:  https://www.thepostemail.com/2020/11/18/elections-undecided-by-midnight-are-void-9-0-decision

The author says that the right people (and I presume you as a legislator would have standing) in each state merely have to file a federal suit to this effect and it is highly likely to win.  He cites Supreme Court precedent to back up his argument.

Note that if this argument is successful, it will be the federal judiciary (probably the Supreme Court) that de-certifies, and IF the states in question are going to get electors, you will STILL be on the hook as a state legislator to appoint your electors directly.

I note that without the six states in question, Trump currently has a lead of 232 to 227. Of the six states in play, the state legislatures in five of them for a total of 73 electoral votes are controlled by GOP legislatures. Only Nevada with 6 votes has a Dem-controlled legislature.

CONCLUSION

I consider you to be like the men at the Battle of the Bulge.  In the war to protect rule of law, election integrity, the Constitution, and our liberty, you are in the breach while the enemies of all that are trying to punch through right now.  I can only watch from afar and hope that you stem the tide.  I urge you to lead your legislature to exercise your constitutional power and duty, and save the Union.  And please do it now!  The clock is ticking.

Toward liberty,

Tom Glass

Texas Constitutional Enforcement

www.txce.org

State Legislative Contact Information for Republicans in

 Pennsylvania, Michigan, Georgia, Arizona, and Wisconsin

Pennsylvania (20 elector votes)

State Senate

*    President Pro Tempore

** Majority Leader

State House

*     Speaker of the House

**   House Majority Leader

News reports state that Pennsylvania Speaker of the House, Bryan Cutler, has said that he does not think the legislature has the plenary power to de-certify an election or directly appoint electors, and that the PA legislature is currently out of session, anyway.

Some Pennsylvania legislators tried to sign a resolution telling the Secretary of State and Governor not to certify.  That, of course, stops short of claiming their plenary power.  Those who have signed on as co-sponsors of the resolution are Reps. Russ Diamond, Eric Nelson, Paul Schemel, Greg Rothman, Frank Ryan, Dawn Keefer, Mike Jones, David Rowe, Michael Puskaric, Barbara Gleim, Bud Cook, Cris Dush, Stephanie Borowicz, David Zimmerman, Daryl Metcalfe, David Maloney, Dan Moul, Brad Roae, Kathy Rapp, Jim Cox, Rob Kauffman, Matthew Dowling, Eric Davanzo, Rich Irvin, Aaron Bernstine, and Andrew Lewis.

Michigan (16 elector votes)

State Senate

State House

* Speaker of the House

Georgia  (16 electoral votes)

State Senate

State House

* Speaker of the House

Arizona (11 electoral votes)

State Senate

State House

Wisconsin (10 electoral votes)

State Senate

State House

* Speaker of the House