Westchester Resident’s Lawsuit reaches the Highest Court, but they must agree to hear it
“Each State shall appoint, in such Manner as the Legislature thereof may direct, a number of electors”
United States Constitution, Article II, Section 1, Clauses 2 and 3
By Dan Murphy
In the midst of all the conspiracy theories that have circulated concerning the Presidential election of 2020, and the “Fake News” that most of these theories claim, there is one legal, constitutional question that should be addressed, and that the United States Supreme Court should rule on: Were the changes made to election laws in 31 States, in the months before the Nov. 3 Presidential Election made legally?
Westchester County resident Tony Futia, and NY resident Robert Schulz have asked the US Supreme Court to hear their case on this matter. Futia and Schulz cite Article II, Section 1, Clauses 2 and 3, ” which reads,
“Each 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.”
The lawsuit claims that the changes made by 31 states were not made by their respective state legislatures, but by a state or federal judge, or by an official in the executive branch, thus making the changes made unconstitutional and void.
“During the calendar year 2020, thirty-one (31) States appointed 401 of the nation’s 538 Presidential Electors – 163 Republican Electors and 238 Democrat Electors, in a manner directed by their State Executive and/or Judiciary rather than by the Legislatures of those States as the Electors Clause of the U.S. Constitution mandates. On December 14, 2020, the 401 unconstitutionally appointed and 137 constitutionally appointed Electors cast their votes at the Electoral College for President and Vice President.”
Schulz served his member of Congress, upstate New York Rep. Elyse Stefanik with a petition for redress of the violations. “Said Petition for Redress documented sixty-three (63) changes to election dates, procedures and administration that occurred in those 31 States – changes that were not authorized by State Legislatures as the Electors Clause of the Constitution required, resulting in the 401 Electors who were not constitutionally chosen and thus had no standing.
“There was no response to the 12/18/2020 Petition for Redress from any member of Congress. Between 12/18/2020 and 1/2/2021, 1,058 U.S. citizens residing in all 50 States, signed said Petition for Redress which was served on 1/4/2021 on each of the 100 members of U.S. Senate and each of the 435 members of the House of Representatives, under separate cover letters, one addressed to “Each Member of the House of Representatives” and the other addressed to “Each United States Senator,” that conveyed the enormity of the attention needed to fix the difficult problem and the constitution related importance.
“There was no response to the 1/4/2021 Petition for Redress from any member of Congress. At 1 p.m. on 1/6/2021 Congress met at the Capitol in a joint session for the purpose of counting and certifying the legitimate, “regularly given” Electoral College votes. The proceeding was interrupted for many hours by a large, problematic public disturbance at the Capitol.
Shultz and Futia then sued Congress, seeking relief under the 12th Amendment which states that if no candidate for President receives a majority of the electoral votes, the House of Representatives must choose from the top three candidates and cast their votes, one vote per state, and the senate must vote for the vice-president.
In March of 2021, after receiving no response from Congress to their petition, a US District Court “issued a Summons against the Senate and a Summons against the House of Representatives stating, “[Y]ou must serve on the Plaintiff an answer to the attached Complaint . . . If you fail to respond, judgment by default will be entered against you for the relief demanded in the Complaint. . . .” But “Congress did not respond, and the Court failed to issue a Default Judgment.”
In October 2021, the District Court issued a Minute Order stating, “Schulz and Futia lack standing to bring this action because they have not made the showing that they have suffered a concrete and particularized injury . . . Because Schulz and Futia have asserted no facts that show an injury particularized to them, they lack standing.
“When faced with a constitutional crisis of the highest order… the Judicial Officers of the courts of the D.C. Circuit chose to substitute their judgment of what may be best for America for their sworn commitment and responsibility to administer justice by applying the law to the facts of the case, no matter the level of difficulty,” states the suit, which goes on to claim that the riots at the Capitol on Jan. 6, 2021, hurt and did not help the constitutional claim of Futia and Schulz.
“Congress knew on 1/6/2021 that there were votes given on 12/14/2020 at the Electoral College that were ipso facto, null and void. However, on 1/6/2021, due to the problematic disturbance at the Capitol and its aftermath, Congress was out of control. Its action in counting the electoral votes for President and Vice President was so unconventional, so eccentric that it resulted in a congressional displacement of the power committed by the Constitution to the State Legislatures to direct how presidential electors are to be chosen.
“Congress’ procedure did not allow for any refutation or investigation, much less a rejection of any of the electoral votes that were objected to and known to have been given by Electors who were undoubtedly unconstitutionally chosen.
“On 1/6/2021 the Members of Congress failed to investigate and reject the electoral votes from any of the 31 States that were known by the Members to have been irregularly given – that is, given by Electors chosen as a result of election dates, procedures and administration set by State Executive and Judicial officials rather than by the people’s popularly elected State Legislatures.
“Officially, there were objections to the manner in which the electoral votes were given in Arizona and Pennsylvania and unofficially in a few other so-called “swing states,” and there were statements in opposition to the objections, but there was no opportunity or allowance for investigations much less rejections. Instead, in violation of the Electors Clause, and by extension the Guarantee Clause and the 14th Amendment, each of the two Houses chose to ignore, via a simple up or down vote, each electoral vote known to the Members to have been irregularly given – that is, given by Electors who were chosen/appointed as a result of election dates, procedures and administration directed by State Executives and Judges rather than by popularly-elected State Legislatures as the Constitution mandates.”
Most lawsuits questioning the election law changes made in 2020 were from citizens from individual states. Texas Attorney General Ken Paxton filed a suit contesting the election results in four states, and used the same arguments that Futia and Schulz argue. “Trust in the integrity of our election processes is sacrosanct and binds our citizenry and the States in this Union together. Georgia, Michigan, Pennsylvania and Wisconsin destroyed that trust and compromised the security and integrity of the 2020 election. The states violated statutes enacted by their duly elected legislatures, thereby violating the Constitution. By ignoring both state and federal law, these states have not only tainted the integrity of their own citizens’ vote, but of Texas and every other state that held lawful elections. We now ask that the Supreme Court step in to correct this egregious error.”
But Futia and Schulz have included all 31 states that they claim improperly and unconstitutionally changed their election laws in the months before the 2020 election.
Each of the alleged violations in the 31 states are briefly described in the suit, and include:
Alaska: Alaska Supreme Court affirmed a lower court’s order suspending the state’s witness requirement for absentee/mail-in ballots.
Arizona: two rulings by US District Court Judges–one ordering that Arizona’s voter reg deadline be extended to Oct 23; and giving voters until the fifth business day AFTER the election to sign their ballot if they failed to sign when they submitted
Arkansas: Gov. Asa Hutchinson-exec order extending absentee ballot who cited health risk concerns from voting in person–as a valid excuse for voting absentee
California: Gov Gavin Newsome–exec order for county election officials to send mail in ballots to all registered voters
Connecticut–Secretary of state announced all eligible voters would automatically receive absentee/mail in ballots
Florida: Secretary of state extended voter registration deadline
Georgia: US District Court Judge extended the return deadline for absentee ballots -postmarked Nov 3 and received by November 6
Iowa: absentee ballot application forms be sent to all active registered voters
Kentucky-Extension of absentee/mail in voting eligibility to all voters “concered with COVID
Maine: Extended voter reg deadline by 6 days from Oct 13-19
Maryland: early voting enacted by BOE-and 127 ballot drop boxes for absentee /mail in available and absentee mail in ballot forms
Mass-mail in applications sent to all voters
Michigan-A state judge extended the deadline for absentee/mail in ballots to be received to Nov 17 -if postmarked by Nov 2, and automatically mailed ballot applications to all voters, and changed the date that anyone can return ballots up to Nov 3.
Montana-conducted their election entirely by mail, per order of Governor Steve Bullock.
Nebraska-Applications to vote absentee mailed to all voters.
New Hampshire- Any voter can request an absentee ballot.
New Jersey-Per Governor Murphy, mail in ballots automatically sent to all voters.
New York-Governor Cuomo created absentee ballot boxes at 300 locations statewide.
NC-The US Court of appeals declined to reinstate an absentee-mail in ballot deadline and permitted the acceptance of ballots received by Nov. 12.
Ohio: A State District Court permitted the Secretary of State to offer multiple drop box locations for ballots, and also allowed that ballot applications be sent by fax or email.
Oklahoma: Governor John Stitt extended state of emergency by 30 days, triggering the modification of the absentee ballot law.
South Carolina: The US District Court ruled that the Board of Elections could not reject absentee ballots/mail in ballots that appeared not to match the signature on file, and the requirement that a witness must accompany a mail in/absentee ballot could not be enforced.
Tennessee: The US Court of Appeals temporarily suspended a law requiring first time voters to vote in person and extended absentee voting to all voters.
Texas: The US District Court overturned an order restricting a straight ticket ballot option, and also extended early voting and said that ballots submitted with an apparent signature mismatch could not be rejected.
Vermont: Provided mail in ballots to all voters.
Virginia: A State judge ruled that ballots mailed in could be accepted without a postmark, and up to 3 days after November 3. Also in Virginia, a US District Court ordered that the voter registration deadline be extended by 2 days and waived the witness requirement for absentee ballots.
West Virginia: All voters concerned about their health (COVID) could vote absentee, per the Secretary of State.
Wisconsin: Automatically send absentee ballots to most voters.
In three states, the ruling of Federal court judges was notable.
In Minnesota, the US Court of Appeals ruled by a 2-1 vote that the extension of absentee-mail in ballot was likely unconstitutional because, “the sec of state extended the deadline for receipt of ballots without legislative authority.” The court also ordered the state board of elections to keep ballots received after Nov 3 separate.
In Pennsylvania, on October 28, the United State Supreme Court declined to expedite consideration of a case involving the PA Supreme Court’s decision extending the state’s mail-in ballot deadline, allowing the extended deadline to stand.
The PA Supreme Court issued two other rulings. On Sept. 17, the court authorized the use of drop boxes for returning mail in ballots, and on Oct. 23, they ruled that election officials could not reject mail in ballot that did not match the signature on file.
In Rhode Island, on Aug. 13, the US Supreme Court denied an application by the Republican National Committee and the state republican party objecting to the suspension of the witness/notary requirements for mail in ballots.
On Sept. 11, the Secretary of State announced they would send out absentee/mail-in ballots to all active registered voters.
The relief that Futia and Schulz are asking for is that 18 months after President Joe Biden took office, the USSC, “nullify the votes of the Electoral College taken Dec. 14, 2020, in the States identified above, and direct the Legislatures of those States to appoint Presidential Electors in a manner consistent with the Electors Clause.”
The relief requested is so severe that it may result in the USSC to decline hearing the case. But with a conservative majority sitting on the court, it is wise to wait for their decision to hear or not hear the case, which is expected by the end of September.
Congressman Jaime Raskin, who has prominently appeared in the Jan. 6th hearings, wrote for constitutionalcenter.org that, “When it comes to presidential elections, the voters are at the mercy of the state legislatures. constitutioncenter.org/interactive-constitution/interpretation/article-ii/clauses/350
http://yonkerstimes.com/the-legitimate-constitutional-question-that-the-us-supreme-court-should-rule-on-regarding-the-presidential-election-of-2020/
Editor’s Note: FYI, I did not vote for Trump in 2016 or 2020, nor did I vote for Hillary in 2016 or Biden in 2020. I am a true independent who votes third party.
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