Starting immediately after the election, we predicted and President Trump confirmed—in a Study Guide and in a subsequent Handicap—that Trump’s campaign would direct litigation toward the SCOTUS [Supreme Court of the United States], rather than depending upon politically unnerved Republican state legislators to appoint Trump electors.
This proved prescient for, after a professionally implemented and enthusiastically received fraud hearing in Gettysburg on Wednesday, November 25th, leaders of the Republican-controlled legislature announced on Monday, November 30th, they are adjourning without further election action.
These three essays, published in Israel, elaborate upon Trump’s two-pronged Federalism-based strategy: the necessity for state legislatures to control procedure and the need to ensure administrative adherence to what state legislatures enact.
In Bush v. Gore, Justices immediately started pondering how they might decide the election outcome; yet, as multiple Trump cases approach the SCOTUS, Court watchers remain reticent to explore how an appropriate remedy might be sculpted without provoking Democrats to erupt for, as Trump remindedFox Business Channel’s Maria Bartiromo, the current wide-spread violence in the United States is emanating from Antifa, BLM and the radical left (not from the right).
An opinion accompanying a 5-4 vote that would serve to “elect” Trump (perhaps 6-3 if Roberts felt his Court’s image might be tarnished by a narrow margin) could couch politicization in language comparable to the split decision of two decades ago; recall the Florida case was to be remanded to rectify equal protection claims BUT that there was felt to be insufficient time for this to be implemented before the safe-harbor date (here, December 8th).
Trump knows that SCOTUS Justices read newspapers too and, thus, have learned how Biden’s Great Reset would radically change America as his adherents unleash a lawless national cancel culture; thus, Rudy Giuliani’s claims of widespread fraud will resonate among relatively reliable conservatives to prompt a reaction comparable to when they (most recently) honored religious rights over gubernatorial edicts (consistent with the RLUIPA).
To emerge victorious, Trump must deny Biden the Electoral College votes cast by three of the six swing-states (Arizona, Georgia, Michigan, Nevada, Pennsylvania and Wisconsin), as per the 12th Amendment (“The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed”).
Although this language appears ambiguous, it seems (settled that) “the candidate who gets to 270 electoral votes wins, rather than whoever is leading in electoral votes”; if neither candidate traverses this threshold, no president would be elected via the electoral college system.
In 1876, Tilden did not win despite his having accrued a majority of Electoral votes cast because 20 had been disputed; thus, because he hadn’t won a majority of the total votes encompassed by the Electoral College, the resulting two-candidate dispute led to the Congressional election of Hayes.
Apparently, although flipping the slates from Biden to Trump is preferable to pro-Trump voters, the GOP need only erode Biden’s current “306” presumptive (electoral vote) total by convincing three state legislatures to conclude that voting irregularities and a contested election preclude their ability to send electors and, thus, will not be casting electoral votes (aided by the SCOTUS); in that instance, the “one vote per state” House vote would yield Trump’s re-election.
In fact, remedies fashioned from the three complementary Pennsylvania cases now converging on the SCOTUS can be sculpted that most Americans will accept, albeit some grudgingly: —one remains before the Court (the original “4-4“ case that Justice Barrett would presumably now accept); —one arriving via the Federal Appeals Court (Trump’s aggregate of voting irregularities); and —one arriving via the Pennsylvania Supreme Court (addressing the constitutionality of mail-in voting).
Assume the SCOTUS were to ignore protestations of the Secretary of the Commonwealth and other Democrats, (on civil procedural rather than substantive objections) when they claim [a]—it’s impossible to recall already-appointed Electors, inasmuch as certification can be suspended; and [b]—it’s impossible to honor any constitutional challenge due to inordinate time delay (“laches”), inasmuch as a premature filing would have been properly viewed as speculative when damages couldn’t yet be asserted to justify standing to sue.
—Regardless of whether Gorsuch’s original text or Kavanaugh’s original meaning were invoked, the Court’s conservatives would rectify the “error of law” committed when the power of the state legislature was abrogated by its executive branch (per Article II, § 1.2 OF THE CONSTITUTION)) and, thus, be predisposed to frown upon unilateral extension of the deadline for receipt of all ballots.
—Regardless of whether fraud occurred, the Court’s conservatives would not discount unrefuted evidence that officials inter alia denied Republicans “meaningful” oversight over tabulations.
—Regardless of when the challenge to the constitutionality of Act 77’s expansion of absentee voting to include mail-in voting was filed, the Court’s conservatives would be predisposed to neutralize “abuse of discretion” that had been rationalized by inflating fear of Covid-19.
Invoking the algebraic mathematical induction proof, documented are both a faulty enabling statute (“postulate works for n = 1”) and fraudulent implementation thereof (“if postulate works for n, then then it works for n + 1”). Is anyone going to understand this – it seems out of context.
A remedy would recall how a Pennsylvania precedent yielded an electoral reversal without a new election, after —nursing home ballots were bundled; —the GOP’s candidate was denied equal protection and due process constitutional rights; and —Republicans asserted the resulting discrepancy exceeded the electoral gap.
Synthesizing these observations, the SCOTUS could remand the case for prompt investigation as to whether to disallow counting ballots that did not comply with such legal requirements as —timely arrival; —tabulation under the aegis of bipartisan observers following documented adherence to chain-of-custody mandates; and —preservation of the civil rights of candidate-Trump.
And if this cannot be accomplished in a timely fashion, the Court could award Pennsylvania’s Electoral votes to Trump; a decision that would not entail disenfranchising millions of Pennsylvania voters; rather, this solution would serve as a precursor that accommodates profound aberrations presented to the legislature intended to ensure tabulation only of all legal ballots.
Noting the brisk pace that the constitutional challenge [#3] traversed the Commonwealth Court and the Supreme Court—with briefing deadlines sometimes mandated to be met within hours of their issuance—and that the other two cases are equally ripe for adjudication, one can project a prompt SCOTUS decision.
And if the SCOTUS’s remedy comports with the above model, challenges in the other five states (asserting similar irregularities) would presumably be decided promptly in a comparable fashion—with evidence finally being confirmed in a judicial environment (under oath and subject to cross-examination), forcing state legislatures to decertify official results and to appoint Trump Electors.
In the process, rendered moot is applicability of the Independent State Legislature Doctrine because evidence and law drive constitutionality of all state legislative determinations, regardless of how they may have been adjudicated by its supreme court.
All of this is congruent with the Trump’s lawyers’ Opening Statement (see transcript) intended to undermine what has been arguably The Greatest Electoral Heist in American History; litigation that most of the media (particularly Fox) continue to find reasons to ignore continues to fall under the aegis of either honoring the will of the legislature or of exposing implementation that was at odds with statute.
Concomitantly, because Trump is dismayed that the CIA, FBI and Department of Justice continue to be inert in the face of the Deep State’ war against the Constitution, someone must expose the international tentacles of Dominion Voting Systems electoral corruption.
The multistate filings of Sidney Powell complement this stratagem; her “Biblical“ assertions of proof include exhibits exploring the Kraken “Sea Monster” (that is allegedly the Defense Department’s cyber warfare program).
In addition to multistate video proof of vote flipping from Trump to Biden—and ballot-box stuffing—PRECISELY 19,958 Trump votes were flipped to Biden in Pennsylvania within seconds; this is but one example of the corruption inherent in the tabulation systems employed.
The SCOTUS must determine if America’s flawed electoral system is “too big to fail” (or too corrupt to succeed); crunch time is NOW.
Robert B. Sklaroff is a hematologist/oncologist. Lynne K. Lechter is a business/corporate attorney and litigator.