We Can Win Without SCOTUS

The Texas suit, later joined by other states, against Wisconsin, Pennsylvania, Michigan, and Georgia, was a nice try, but it was always a long shot.  Of course SCOTUS would be reluctant to grab so much power by ordering state legislatures to seat the right electors.  Why?  Because the power is already in the hands of the legislatures to do this. 

Though we are non-lawyers, let’s read these laws together, interpreting them minimally and plainly (something lawyers seem incapable of doing).  The first federal law for our purposes, titled “Determination of controversy as to appointment of electors,” says:

If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.

So this provision, if I understand it correctly, says that states may appoint electors after a controversy (“controversy or contest”).  Now, what happens when fraud and illegalities are so egregious that they help one candidate exclusively and harm only one candidate in such a way that it is unclear which electors shall be appointed?  That definitely qualifies to become a “controversy or contest.”  The provision opens the door to each state legislature having the right to determine how the state can appoint electors (“appointment of electors” and “ascertainment of electors”).  (This is already clear in the Twelfth Amendment, but here this provision gives more clarity after a controversy.)  Bottom line: The electors for Biden, the “fake winner,” can be set aside if that is what each individual state law allows. 

What does each state law say?  It’s up to them to tell us, because researching each state’s law is too burdensome for average citizens.  But it is safe to assume that the states have “plenary power” to appoint the electors of their choosing, particularly when the Constitution actually says the state legislatures determine things.  The Electors Clause — Article II, Section 1, Clause 2 of the U.S. Constitution — provides that “[e]ach state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress.” (Hat tip.)

However, what about the “six days” in the election law provision?  The next federal law, in a section titled “failure to make a choice before prescribed day,” says:

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. 

The states can determine when they appoint the electors “on a subsequent day” (not the next day).  The phrase “In such a manner as the legislature of such State may direct” gives the states much leeway to select the right electors, which agrees with the Electors Clause, cited above.  And if the controversy in selecting electors, caused by fraud and illegalities, persists past Dec. 14, then the states can ignore the date and follow their need to further investigate fraud and illegalities. 

The whole thing can work out like this, apart from the Texas lawsuit before SCOTUS.

The undisputed states vote electorally on Dec. 14, and neither Biden nor Trump reaches 270, so neither one is the winner.  The five GOP state legislatures (Arizona, Michigan, Georgia, Wisconsin, and Pennsylvania) of the six disputed states (minus Nevada) say they need to postpone their electoral votes because they are investigating fraud and illegalities. The legislatures perform due diligence (they have been holding hearings to collect the evidence) and conclude that fraud and illegalities unilaterally hurt Trump and helped only Biden.  Assuming that the Democrat Legislature in Nevada says everything was legitimate, each disputed GOP state may reach this conclusion on any day after Dec. 14 — say, on Dec. 27 or even Jan. 15.  Then they appoint electors who vote for the rightful winner: Trump (provided the GOP-selected electors do not suffer from TDS).  These votes are added in to the votes cast on Dec. 14.  Trump goes past 270 electoral votes.  He wins!

However, what happens if the disputed states cannot select the electors, and neither Trump or Biden reaches 270?  Then it goes to the House of Representatives, and each state has one vote, and this one vote is determined by the political makeup of the state legislatures.  The GOP controls 29 state legislatures, and the Democrats have 19 (two are split).  Trump wins again.

Therefore, we don’t need SCOTUS to win, and we never needed it.

So what happen next, and what can regular folks do now? 

First, we can keep up the pressure on the legislators of those five GOP states to select electors who will vote for the rightful winner, who is obviously Trump.  Some of the members in these legislatures may suffer from TDS, so the message must be sent that they have to set aside their irrational opposition and do the right thing. 

Second, Sidney Powell’s legal team can continue with their lawsuits, so they can expose and uproot Dominion Voting Systems.  Now the goal will not be to overturn elections, but to get rid of the flawed, rigged system.  This goal is much more realistic and easier to accomplish.  The court cases will take a long time.  But that’s okay, because they keep in the public view the “fake president” and 2024, if Biden (unjustly) prevails. 

Third, we must counter the left-wing pressure, including their threats of violence, that will be thrust on these little known state politicians.  Without threats of violence on our side, we can still stand firm to support and defend them. 

The battle is not over.  It was always going to boil down to the legislatures without SCOTUS.  If we keep up the fight, we shall win with knowledge and the law on our side.

James Arlandson, American Thinker

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