What Just Happened at the Supreme Court?

And Where Do We Go From Here?

December 14, 2020


PUBLISHER'S NOTE:
At Conservative Truth we are fortunate to have a number of "subject matter experts" to whom we can turn when special expertise is needed. Sally Saxon is an attorney, minister, and patriot who cares deeply about our nation. Fortunately, she is not the kind of attorney who tries to impress with big words and convoluted language. I asked her to take on the challenge of explaining the legal proceedings surrounding this most important of elections, because I knew she would do so in a way that we could all understand. After all, that is the way Conservative Truth began - by explaining the proceedings surrounding the Bush-Gore election. Our thanks to her for spending many hours researching and writing this for our benefit.


Today, Monday, December 14 is the day the Electoral College meets to cast votes for the President and Vice President.  However, their vote still must be certified by a Joint Session of Congress on January 6, 2021. Only a few days ago, the Supreme Court denied Texas the opportunity to go forward with a lawsuit against four battleground states, seeking to prevent those states from certifying electors before the claims of outcome-changing fraud could be heard and adjudicated.
 
Is it too late to reverse what appears to be the current course that we're on with regard to the election results? Not yet, but there's an uphill battle. Before going into what may happen from here with regard to the ultimate outcome of the election, it's helpful to take a quick look at what happened with the recent Texas case, especially since the Trump legal team has said that others, including President Trump himself, would probably file the same case in other courts.
 
The Texas Case. Last Monday, December 7, 2020, the State of Texas filed papers with the U.S. Supreme Court naming the States of Georgia, Wisconsin and Michigan and the Commonwealth of Pennsylvania as Defendants. That case focused on a single legal issue: "Did Defendant States violate the Electors Clause by taking non-legislative actions to change the election rules that would govern the appointment of presidential electors?" Texas argued that the actions of the Defendant States opened up the election process to fraud that also resulted in violations of equal protection and due process.
 
Among other forms of relief, Texas was seeking to prevent the Defendant States from certifying their electors and participating in the Electoral College vote.
 
This case had been characterized by some as the "big one" that many had been waiting for. Almost every state and many others jumped in immediately to support one side or the other by filing an "amicus curiae" ("friend of the court") brief. Six states even filed motions to "intervene" – a legal term meaning they also wanted to join Texas as a plaintiff. President Trump also sought to intervene and be added as a plaintiff.
 
Even Pennsylvania's Republican Speaker of the House and its House Majority Leaders filed a motion to submit a brief in support of Texas, even though their Democrat Attorney General had thrown his support to the Defendants. About two dozen Georgia state legislators also sided with Texas instead of their own State.
 
There were several papers filed with the Court by Texas. The first was the required Motion for Leave to File a Complaint, which is basically a request for permission to even file the Complaint. Also filed were the Complaint and a Brief which setting forth its arguments and legal authorities in support of its Complaint. The Defendants all filed responses by Thursday the 10th.
 
This past Friday, December 11, the Court denied Texas' Motion for Leave to file a Complaint on the ground that it did not have standing to bring the case. "Standing" refers to the legal doctrine that requires a plaintiff to have a personal legal interest in a case beyond any injury suffered as a member of the general public.
 
The Supreme Court's denial was therefore onprocedural grounds. It was not a decision on the merits of the case. The written denial of the motion was very short and gave little detail, other than "Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections." Justice Alito was joined by Justice Thomas in saying:
 
"In my view, we do not have discretion to deny the filing of a bill of complaint in a case that falls within our original jurisdiction. See Arizona v. California, 589 U. S. ___ (Feb. 24, 2020) (Thomas, J., dissenting). I would therefore grant the motion to file the bill of complaint but would not grant other relief, and I express no view on any other issue."
 
That's all we know at this point about the Supreme Court's decision. Texas sought the Supreme Court to take the case as one of "original jurisdiction" because it was between two or more states, one of a few kinds of cases that allow a plaintiff to go directly to the Supreme Court. It does not first have to file its case with a lower the trial court (district court) and then an appeals court. In such a case, the Supreme Court itself can act as the "finder of fact," like a jury or trial court judge would when there is no jury, not just as a case on appeal. So cases of original jurisdiction get significantly expedited resolution.
 
Debasement or Dilution of Votes and Impact on Other States. Among other points raised by Texas, it alleged that the violations of state law by the Defendant States changed the outcome of the election. Texas further argued, based on previous case law, that "the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.” Reynolds v. Sims, 377 U.S. 533, at 555. (1964)  Texas also cited another Supreme Court case in which the Court said: “the impact of the votes cast in each State is affected by the votes cast for the various candidates in other States.” Anderson v. Celebrezze, 460 U.S. 780, 795 (1983).
 
Despite the Supreme Court's recognition in prior cases of these two points about the impact of unlawful or invalid votes, it still decided that a State does not have standing to challenge how another State conducts its elections that determine the State's electors.
 
Electors Clause. The key point about the Electors Clause of the U.S. Constitution (Art. II, Section 1, Clause 2) is that it gives the state legislatures plenary power to appoint electors.
"Plenary power is an absolute power that is complete and allows for the holder to make unilateral decisions regarding a certain subject." (www.justipedia.com) It used to be that most states chose their electors directly through appointment by the state legislatures. Over time, however, states allowed the voters of their states to choose the electors through statewide elections instead. But according to Supreme Court precedent, this power over how electors are chosen can be taken back "at any time." It might be, however, that the legislature would have to change state law first.
The authority to take back this power to directly appoint electors was a point made by the Trump legal team during the recent hearings at the state legislatures in the contested states to encourage the state legislators as to what they had power to do.
 
Specific Allegations. Texas asserted that various non-legislator officials made significant changes to the legislatively defined election rules which removed statutory ballot-security measures for absentee and mail-in ballots such as signature verification, witness requirements, and secure ballot drop-off locations. Therefore, Texas argued, any ballots that were counted pursuant to those changes in violation of state law should not be counted.
 
The combined number of electoral votes in these 4 states is 62. That number was enough to determine the outcome of the election. The Plaintiff's brief cites a Declaration (like an affidavit) of an expert that, given President Trump's substantial lead in each of the 4 states as of 3:00 am on November 4, the probability of Joe Biden winning all 4 of these states was 1 in a quadrillion to the 4th power, or 1,000,000,000,000,0004. Presumably the experts' Declaration explains the basis of that calculation. Donald Trump won all 4 of these states in 2016.
 
Texas set forth many other specific allegations of fraud and other violations of law.
 
Response to the Supreme Court Action.  It required at least five Justices to grant the Motion to file the Complaint. From the Court's short written denial, it's obvious that the three Trump-appointed Justices sided with the Defendant States. What are we to make of that? Did they really think the law required denial? Or did other factors affect their decision?
 
Conservative talk show host and lawyer Mark Levin thinks the Court's just didn't want to deal with the issues.
 
In an interview on Newsmax, political commentator Dick Morris said he thought the Court's denial was because they (especially referring really to the 3 Trump-appointed Justices) were "intimidated," suggesting that all the pre-election talk about "court-packing" was intended to send the Court the message that: "'If you overturn this election, we will pack you, and make your Court basically meaningless.'"
 
That reasoning doesn't make sense to me though, because if the court rendered a decision on the merits of the case that resulted in the election being turned to President Trump's favor, the Democrats would not be in a position to pack the Court. If the election results (so far) are not overturned, the Democrats would likely pack the court anyway.
 
In an interview on Newsmax TV, Rudy Giuliani stated:
“The worst part of this is, basically the courts are saying they want to stay out of this, and they don’t want to give us a hearing and they don’t want the American people to hear these facts. That’s a terrible, terrible mistake….They need to be heard, they need to be aired and somebody needs to make a decision on whether they’re true or false and some court’s going to have the courage to make that decision.”[1]
Giuliani also said: "The answer to that is to bring the case now in the district court by the president, by some of the electors, alleging the same facts where there would be standing and therefore get a hearing." [2] The problem, however, is that the clock is ticking.
One of the other members of the Trump legal team, Joe diGenova, has suggested that state legislatures could hold what he calls "electoral sessions." He explained:
 
“'Not joint sessions, not special sessions, but sessions the legislators themselves can call without the governor, without the secretary of state, and either give their electoral votes to Trump or deny either candidate the electoral votes—thus denying each candidate the necessary 270 electoral votes,' the former U.S. attorney and Trump lawyer said. 'That’s what we’re shooting for. I think everything is proceeding in every other state.'” [3]
 
Ivan Raiklin, a Constitutional attorney, says that there are other paths to victory. One is through the various civil suits with mountains of evidence, including "thousands of sworn affidavits by people who have nothing to gain and much to lose."[4] He said that's how to win in the Supreme Court. But he noted other avenues to victory which involve both state and federal legislators:
 
 "One of the keys to a Trump victory is making sure the state legislatures do not continue to abdicate their sole power over electors…. Another important factor is how the various U.S. Senate and House of Representatives committees respond."
 
Potential Issues When Congress Meets to Certify on January 6. What Raiklin is referring to is what Congress has yet to do to finalize the process of certifying the electoral votes. A Joint Session is scheduled for that purpose on January 6, 2021. If there is more than one slate of electors from a state, that would raise an issue. Also, there is a process for objections to be made to a state's electors if at least one member from each of the House and the Senate together object in writing to the certified slate of electors votes of any state. That would set up another process.
 
First, one complicating issue involves what is called the "safe harbor" statute, the deadline for which was December 8. That deadline is based on 3 U.S. Code section 15 which says that any slate of electors that was certified and sent in by a State in accordance with section 6 of that chapter cannot be rejected by Congress when Congress meets to certify the Electoral College vote. It's a "safe harbor," or a kind of guarantee that Congress must accept those electors. It appears that all states except Wisconsin met this deadline.
 
But in order for a State's list of electors to be "in accordance with section 6," it appears that any controversies or contests concerning the appointment of any and all electors must be finally resolved. So where there is an ongoing contest it looks like a State would not qualify for the "safe harbor guarantee," even if it had sent in a list of electors certified by the governor by the safe harbor deadline.
 
Should States like Michigan, Georgia and Pennsylvania be allowed to claim that their slate of electors which was turned in by the deadline, must be accepted and cannot be challenged, even if there are claims of substantial fraud which have not yet been heard, much less resolAnd if a court "resolves" a lawsuit merely by dismissing it on procedural grounds without actually hearing any of the evidence, does that really constitute a "resolution?" Arguably not.
 
In many other kinds of circumstances, a finding of fraud has been held to invalidate various kinds of transactions after they have been "finalized," such as contracts, various estate planning documents, etc. I would argue that it should be no different in this situation, despite the "safe harbor" statute.
 
Otherwise, substantial fraud that would or could reverse the outcome of an election could never be remedied. That would encourage even more fraud in the future. True justice says that there has to be a remedy somewhere, somehow, if there's sufficient evidence of fraud.
 
The problem has been getting any court to even look at the growing mountains of evidence of the fraud. None of the cases that have been dismissed have really heard the evidence. The major media, the Democrats and even many Republicans, including Attorney General Bill Barr have all said there is no evidence of fraud. That's unbelievable. I've personally listened to many hours of the hearings and read various reports of witnesses, including several experts with backgrounds in cybersecurity, election fraud, statistics or other relevant areas of expertise. It's not hard to find, and as Sidney Powell has said, there are "mountains" of it. Anyone who claims there's no evidence is not on the side of true justice.
 
Given the current situations in the still-contested swing states, it appears that the only thing that might prevent Joe Biden from having Congress certify at least 270 electoral votes on January 6 – short of an extraordinary kind of lawful action by President Trump (which he could do) - would be to have at least one member of the House and one from the Senate file the necessary objections in enough States to drop Biden's vote count below 270. They should also have incontrovertible evidence of fraud to back up their objections.
 
If neither candidate gets at least 270 electoral votes, then the 12th Amendment comes into play. In that case, the House of Representatives chooses the President, and the Senate chooses the Vice-President. But in the House, each State's delegation gets only one vote. Assuming that each representative would vote for the candidate of their own party, then the vote of that State's delegation would be determined by whichever party has the majority of representatives in that State. Based on the 2020 election results, by my count, the breakdown is 26 state delegations in the House have a Republican majority and 20 have a Democrat majority. Three are tied (Michigan, Pennsylvania and Minnesota), and Iowa is still up in the air due to one very tight race in which the Republican has a lead of only 6 votes! So Iowa will either be in the Republican column or the "tied" column.
 
It's not totally clear (at least to me) how a tied state's one vote would be determined in that situation. But that's where 3 U.S. Code section 15 ("Counting electoral votes in Congress") may come into play again. Would it be the governor of that State, or the state legislature to decide that? Michigan, Pennsylvania and Iowa have a Republican majority in their state legislatures, but they have Democrat governors. Also, Wyoming's one and only Republican House seat is held by Liz Cheney. Since she has been calling for President Trump to concede, which way might she vote, especially in light of mountains of evidence of fraud?
 
Also, the new Congress will be sworn in on January 3, and the Georgia run-off election for the two Georgia Senate seats is January 5, one day before Congress is scheduled to meet to certify the Electoral College vote. Will the run-off election be determined and certified in time for the Joint Session of Congress the next day? If not, those two Georgia seats will be vacant, leaving a 50-48 Republican majority in the Senate. Depending on who wins the Georgia seats, and whether the election results can be certified in time and the winners sworn in in time to at least participate in part of the process, the Senate would either be 50-48, 52-48, 51-49 or 50-50. Vice President Mike Pence will still be in office until January 20, so if there were a tie to be broken in the Senate, he has the deciding vote as President of the Senate.
 
If we are thrown into a 12th Amendment process, both Senators from each State would get a vote. Then the question becomes: regardless of whether one or both Republicans win the Georgia run-off, can all of the Republicans be counted on to vote for Mike Pence?
 
It's quite possible that some other major developments will occur that are within President Trump's lawful powers that will affect what happens on January 6. Time will tell.
 
Should President Trump Declare Martial Law? More people are starting to call for President Trump to declare martial law and/or invoke the Insurrection Act, including at least two high profile military men, retired Lt. Gen. Michael Flynn and retired Lt. General Thomas McInerny.
 
The Insurrection Act gives the president authority to use active duty military to restore or maintain peace when there are extraordinary circumstances involving civil unrest or rebellion.  
President Eisenhower invoked it in the late 1950's when troops were sent into Little Rock to enforce school desegregation. John F. Kennedy also invoked it, as did George H.W. Bush during the Rodney King riots.
 
What if President Trump were to follow the suggestions of these outstanding military men, and also call for new elections as quickly as feasible? There would need to be other safeguards in place to prevent or at least limit the kinds of fraud that have occurred over many decades. No doubt the Democrats (and other globalists) would accuse him of "acting like a dictator" – but they've already been doing that for the past four years without any factual basis for their accusations, so that wouldn't be anything new. And the Republic and future of the country are at clearly at stake like at no other period in our lifetimes.
 
If the Democrats are allowed to get away with the massive fraud they have perpetrated, especially with significant foreign influence (as Sidney Powell and others have said they have proof of), they undoubtedly would continue to use fraudulent methods to stay in power indefinitely - absent divine intervention, that is.
 
I'm a firm believer in divine intervention. When circumstances in the natural look almost possible, that's when God seems to come through in the most amazing ways. I've seen God do too many miracles in impossible looking situations to give up believing now that this election process is not over.
 
These next few weeks will probably hold some big surprises.
 


[1] Solange Reyner, "Giuliani to Newsmax TV: Legal Fight Will Go On," https://www.newsmax.com/newsmax-tv/giuliani-biden-trump-2020/2020/12/11/id/1001175/ (December 11, 2020)
[2] Id.
[3] Fred Lucas, https://www.dailysignal.com/2020/12/10/7-things-you-need-to-know-about-mondays-electoral-college-vote/ (Dec. 10, 2020)
[4] J.D. Rucker, https://clarion.causeaction.com/2020/12/08/constitutional-scholar-ivan-raiklin-details-his-plan-to-stopthesteal/ (Dec. 8, 2020)

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caringaboutamer
I am so grateful that hundreds of people are trying to protect our constitution as well as protect the sanctity of our democracy. The election fraud is so glaringly apparent and yet those that can do something about it aren't so as an American where are we to turn? This is an atrocity and they cannot get away with it. I love the United States and it is so painful to witness what is going on as I believe that they are trying to destroy our great country and those in power are allowing it because of their sick and twisted agenda that is driven by power and greed.
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