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Category: Monticello College Comments: One Comment

A House Divided Can Not Stand

The recent legal action by Texas maybe the most important Supreme Court case since the legal battle leading up to the United States Civil War of 1861. Not since that time has this nation been so divided, not since that time have we as a people been so ideologically polarized.

What follows are 6 pages of opening statements of the Texas suit against the swing states of Pennsylvania, Georgia, Michigan, and Wisconsin. This suit is being encouraged by at least 17 other states and President Trump and being opposed by at least 22 states.

If there was ever a time to study and research current events, NOW is that time.

No. ______, Original

In the Supreme Court of the United States







Pursuant to S.Ct. Rules 21, 23, and 17.2 and pursuant to FED. R. CIV. P. 65, the State of Texas (“Plaintiff State”) respectfully moves this Court to enter an administrative stay and temporary restraining order (“TRO”) to enjoin the States of Georgia, Michigan, and Wisconsin and the Commonwealth of Pennsylvania (collectively, the “Defendant States”) and all of their agents, officers, presidential electors, and others acting in concert from taking action to certify presidential electors or to have such electors take any official action—including without limitation participating in the electoral college or voting for a presidential candidate—until further order of this Court, and to preliminarily enjoin and to stay such actions pending the final resolution of this action on the merits.


Lawful elections are the heart of our freedoms. “No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.” Wesberry v. Sanders, 376 U.S. 1, 10 (1964). Trust in the integrity of that process is the glue that binds our citizenry and the States in this Union.

Elections face the competing goals of maximizing and counting lawful votes but minimizing and excluding unlawful ones. Reynolds v. Sims, 377 U.S. 533, 554-55 (1964); Bush v. Gore, 531 U.S. 98, 103 (2000) (“the votes eligible for inclusion in the certification are the votes meeting the properly established legal requirements”) (“Bush II”); compare 52 U.S.C. § 20501(b)(1)-(2) (2018) with id. § 20501(b)(3)-(4). Moreover, “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, 377 U.S. at 555. Reviewing election results requires not only counting lawful votes but also eliminating unlawful ones.

It is an understatement to say that 2020 was not a good year. In addition to a divided and partisan national mood, the country faced the COVID-19 pandemic. Certain officials in the Defendant States presented the pandemic as the justification for ignoring state laws regarding absentee and mail-in voting. The Defendant States flooded their citizenry with tens of millions of ballot applications and ballots in derogation of statutory controls as to how they are lawfully received, evaluated, and counted. Whether well intentioned or not, these unconstitutional acts had the same uniform effect—they made the 2020 election less secure in the Defendant States. Those changes are inconsistent with relevant state laws and were made by non-legislative entities, without any consent by the state legislatures. The acts of these officials thus directly violated the Constitution. U.S. CONST. art. I, § 4; id. art. II, § 1, cl. 2.

This case presents a question of law: Did the Defendant States violate the Electors Clause by taking non-legislative actions to change the election rules that would govern the appointment of presidential electors? These non-legislative changes to the Defendant States’ election laws facilitated the casting and counting of ballots in violation of state law, which in turn, violated the Electors Clause of Article II, Section 1, Clause 2 of the U.S. Constitution. By these unlawful acts, the Defendant States have not only tainted the integrity of their own citizens’ vote, but their actions have also debased the votes of citizens in Plaintiff State and other States that remained loyal to the Constitution.

Elections for federal office must comport with federal constitutional standards, see Bush II, 531 U.S. at 103-05, and executive branch government officials cannot subvert these constitutional requirements, no matter their stated intent. For presidential elections, each State must appoint its Electors to the electoral college in a manner that complies with the Constitution, specifically the Electors Clause requirement that only state legislatures may set the rules governing the appointment of electors and the elections upon which such appointment is based. 1

Constitutional Background

The Electors Clause requires that each State “shall appoint” its Presidential Electors “in such Manner as the Legislature thereof may direct.” U.S. CONST. art. II, § 1, cl. 2 (emphasis added); cf. id. art. I, § 4 (similar for time, place, and manner of federal legislative elections). “[T]he state legislature’s power to select the manner for appointing electors is plenary,” Bush II, 531 U.S. at 104 (emphasis added), and sufficiently federal for this Court’s review. Bush v. Palm Beach Cty. Canvassing Bd., 531 U.S. 70, 76 (2000) (“Bush I”). This textual feature of our Constitution was adopted to ensure the integrity of the presidential selection process: “Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption.” FEDERALIST NO. 68 (Alexander Hamilton). When a State conducts a popular election to appoint electors, the State must comply with all constitutional requirements. Bush II, 531 U.S. at 104. When a State fails to conduct a valid election—for any reason—”the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.” 3 U.S.C. § 2 (emphasis added).

Defendant States’ Violations of Electors Clause

As set forth in the Complaint, executive and judicial officials made significant changes to the legislatively defined election laws in the Defendant States. See Compl. at ¶¶ 29-134. Taken together, these non-legislative changes did away with statutory ballot-security measures for absentee and mail-in ballots such as signature verification, witness requirements, and statutorily authorized secure ballot drop-off locations.

Citing the COVID-19 pandemic, Defendant States gutted the safeguards for absentee ballots through non-legislative actions, despite knowledge that absentee ballots are “the largest source of potential voter fraud,” BUILDING CONFIDENCE IN U.S. ELECTIONS: REPORT OF THE COMMISSION ON FEDERAL ELECTION REFORM, at 46 (Sept. 2005) (hereinafter, “CARTER-BAKER”), which is magnified when absentee balloting is shorn of ballot-integrity measures such as signature verification, witness requirements, or outer-envelope protections, or when absentee ballots are processed and tabulated without bipartisan observation by poll watchers.

Factual Background

Without Defendant States’ combined 72 electoral votes, President Trump presumably has 232 electoral votes, and former Vice President Biden presumably has 234. Thus, Defendant States’ electors will determine the outcome of the election. Alternatively, if Defendant States are unable to certify 37 or more electors, neither candidate will have a majority in the Electoral College, in which case the election would devolve to the U.S. House of Representatives under the Twelfth Amendment to the U.S. Constitution.

1 Subject to override by Congress, State legislatures have the exclusive power to regulate the time, place, and manner for electing Members of Congress, see U.S. CONST. art. I, § 4, which is distinct from legislatures’ exclusive and plenary authority on the appointment of presidential electors. When non-legislative actors purport to set State election law for presidential elections, they violate both the Elections Clause and the Electors Clause.

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Comment (1)

  • Bill Hubbard

    Thank you Shannon. Your statement is quite accurate. And thank you for the text of the suit as well. It is gratifying to see patriots like yourself coming to the defense of our Constitutional Republic. Idaho had originally refused to get involved in the case. I think that position has changed. I am waiting for a reply from my State Representative regarding the matter. I believe our AG has no genuine reason for not involving Idaho in the suit. This legal case may well hold in the balance the fate of our Constitutional Republic.

    December 11, 2020 at 11:30 am

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