by Leo Donofrio, naturalborncitizen, ©2020
(Dec. 13, 2020) — The failed Texas theory of action was that the plenary authority of Legislatures in Defendant States had been usurped, causing violations of equal protection to Texas voters. The problem with such theory is that – by doing nothing to take back control of choosing electors – the Legislatures in the Defendant States have, using passive behavior, condoned invasions upon their exclusive power by inferior State officials. By that I mean, inferior in authority as to choosing presidential electors, as per Article II, § 1, of the Constitution, and also inferior as to federal statute 3 U.S.C. § 2.
By not taking back the presidential elector appointment power, after watching their enactments – designed specifically to protect election integrity – be discarded by Executive officials such as Raffensperger and Boockvar, those Legislatures have, by their failure to assert plenary authority after the violations, condoned such usurpation.
And unless they resume power soon, the usurpation will be forever endorsed by them. As such, Texas had no standing to cure behavior that the Defendant State Legislatures themselves appear to have condoned. Passive approval is an exercise of plenary authority, so there is no constitutional invasion of legislative power for Texas to claim on behalf of their citizens, if the Legislatures themselves remain docile and allow such invasions to stand.
Plenary means plenary. The State Legislatures have plenary authority not to act. Those Legislatures are pretending they have no authority, but in pretending, they are, in fact, acting to protect their officials and the electors preferred by them.
My case, on the other hand, asserts that the Defendant States violated a Congressional election statute, 3 U.S.C. § 1, which was an exercise of plenary authority by the federal Congress as to the time when presidential electors shall be appointed. This is a power not even the State Legislatures can waive.
I didn’t want to put the caption of my case at SCOTUS into public awareness until it was docketed, because I didn’t want folks mass calling the Court, citing the caption, and clogging up the process. The Court is understaffed from Covid. But since the caption slipped out in Footnote 1 of AG Brnovich’s Amicus Motion on behalf of Arizona in the Texas case, the file is effectively unredacted. So let’s talk about it.
I was inspired by the Texas effort (filed three days after mine), because they raised awareness of 3 U.S.C. § 2, and the concept of vote debasement (both issues were invoked previously in my filing), but the Texas case most certainly had standing issues for asserting that the authority of other Legislatures was usurped.
Yes, those State Legislatures’ authority was usurped by their Executive Branch officials, but no Legislature has actually asserted their plenary authority to appoint electors. Since those Legislatures have not resumed the power, neither Texas nor SCOTUS can assert that power for them. As per the Supreme Court precedent stated in McPherson v. Blacker – a State Legislature may “resume the power” to appoint electors “at any time”, as that power is “plenary”. Plenary means they alone may assert it.
Don’t be deceived, the State Legislatures can appoint electors right now, and if they do, it’s the other side who will be begging SCOTUS for help. And like Texas, they will lose. So don’t blame SCOTUS. Blame the Legislatures for not appointing electors.
Those State Legislatures are avoiding their power by making believe state laws and constitutions bind them to accept a result. Only the Constitution of the United States binds them. It binds them to plenary authority which they clearly do not want to accept.
In fact, they can choose electors today. Nobody will stop them. Not even SCOTUS. They don’t need to invoke normal legislative procedures. All they need is will. The Florida Legislature asserted that will in 2000. And the GOP leadership praised them for it.
So why did the Pennsylvania Legislature leadership join the Texas suit, and why call on Congress to reject Pennsylvania electors, rather than doing it themselves?
They are obviously afraid. I get it. It’s human to be afraid. We can forgive fear. We can even forgive cowardice. But only if they admit the power they fear. Claiming that they don’t have the power is the unforgivable sin. In doing so, they are misleading others to think they are powerless. They aren’t.
If fear has taken over patriotic duty, they should admit that, resign, and find other careers. Ordinary citizens have stepped up by putting their lives in danger to swear affidavits and give live testimony concerning the disturbing behavior they witnessed during this election. If their representatives won’t stand by them, then those legislators need to go.
Why aren’t you submitting a slate of electors, Mr. Cutler? You have publicly asserted that your State officials violated your enactments. The Constitution armed you with plenary authority over presidential electors. That authority has been confirmed by SCOTUS multiple times. It’s paramount over your state constitution. Stop pretending you don’t know.
Read the rest here.