By Herodotus Paine
In 1980, the Canadian rock band Rush recorded “Freewill,” which includes one of the most memorable and important lines ever sung:
If you choose not to decide, you still have made a choice.
The stuffed Robes sitting on the United States Supreme Court should have listened to that song, before, during, and after their Constitutional law classes, and taken it to heart before refusing to hear the recent Texas lawsuit. By not hearing it, the justices made a choice. They waded neck-deep into politics. They chose sides. They voted against you. They voted against the clear meaning of the Constitution.
They may have forever altered and ruined our Republic. This is not hyperbole.
On December 8, 2020, the Attorney General of Texas, Ken Paxton (R), filed a lawsuit in the U.S. Supreme Court to challenge the presidential election results in four states: Pennsylvania, Wisconsin, Georgia, and Michigan. The suit argued many things, but the foundational elements were grounded not in allegations of on-the-ground fraud (though examples were provided) but on violations of the Electors, Equal Protection, and Due Process clauses of the U. S. Constitution.
Most Americans focus on the sensational claims of fraud, which is good for one thing: convincing the general public that the election was tainted. Public opinion is important. But the Electors Clause is the entire game, and most Americans don’t know its basic rules and don’t even know that this game was (and is) being played.
Article II, Section I, Clause 2 of the Constitution (the Electors Clause), in part, reads as follows:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors…
This means one thing: the legislatures of each state have plenary power to dictate the manner in which elections will be conducted within their state. There is no dispute in the legal literature on this point.
In the above four swing states (and a few others), it was not the legislatures that removed signature requirements, counting deadlines, the requirement of postmarks, et al. It was state courts, secretaries of state, mayors, ward managers, and others. Some of these changes were rubberstamped by state courts stuffed with Democrat appointees who rebuffed challenges by the legislatures and others seeking to enforce their constitutional role in accordance with the Electors Clause.
The Chattering Class immediately mocked the Texas case and lied to the American people. Again. They asserted that Texas had no “standing” to file such a case, and the lawsuit was asking the Supreme Court to declare Joe Biden’s electoral victory unconstitutional—and thus throw out millions of votes.
Neither was true.
Standing essentially asks whether the party filing suit can demonstrate to the court a sufficient connection to, and harm from, the actions alleged in the complaint to support that party’s participation in the case.
Boiled down, Texas argued three standing points, at length. First, it clearly has the right to present the constitutional claims of its own citizens, who “have the right to demand that all other States abide by the constitutionally set rules in appointing presidential electors to the electoral college.”
Second, Texas made a sound argument that it has, because of how the Constitution is structured, “a distinct interest in who is elected Vice President and thus who can cast the tie-breaking vote in the Senate.”
Last, Texas argued it has standing to sue on behalf of the state’s “electors” who suffer an injury when other states don’t follow the Constitution. The Electoral College, it argued, “is a zero-sum game,” so unconstitutionally appointing electors in these swing states injures Texas’s electors.
These are sound, rational arguments—not on the merits, but on whether Texas has the right to be HEARD on the merits.
Most Americans do not grasp one other key matter: there was no other court in which Texas could have filed suit. According to our Constitution, when a state sues another state, the U.S. Supreme Court has “exclusive jurisdiction” to hear the matter, meaning that the U.S. Supreme Court can only resolve such disputes.
Contrary to hysterical mainstream media claims, the remedy Texas was seeking was not the overturning of the election or a declaration that Donald Trump was the winner: “Plaintiff State [Texas] does not ask this Court to decide who won the election; they only ask that the Court enjoin the clear violations of the Electors Clause of the Constitution.”
In other words, declare the obvious—that the Electors Clause was violated in these states—and send this back to the states to determine the outcome in those states only.
There is no dispute that the named swing states changed their voting laws outside their own legislatures, violating their own state laws and the Electors Clause. Even the Democrats do not dispute this.
Texas could not have filed before the election because there was no injury, and once there was injury, it could only file suit in the Supreme Court.
By denying standing, the Supreme Court perpetrated a fraud on the American public. By pretending it did not want to be seen as political or involve itself in determining the winner, it refused to hear the case on the merits… and determined the winner.
By not making it clear to everyone that the Electors Clause means what it says, and that there are consequences for violating the Constitution, the Supreme court announced to all fifty states that there is no longer an Electors Clause. The rules can now be changed by anyone, anywhere, at any time.
If anyone can change it at a whim, and rules can vary from ward to ward, city to city, and county to county within a single state, there is also no Equal Protection or Due Process clause.
Free and fair elections are a thing of the past.
If you choose not to decide, you still have made a choice.
Neil Peart of Rush was more prescient than even he imagined.
Submitted by Herodotus Paine, an attorney, writer, father, husband, constitutional activist, avid cigar smoker, and a rescuer of dogs.