Letter to State Legisltures Re Their Constitutional Power and Duty

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.