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BREAKING: President Trump and 18 States File at Supreme Court

Sekulow Radio Show / Jay Sekulow & Jordan Sekulow
The Truth Network Radio
December 10, 2020 12:00 pm

BREAKING: President Trump and 18 States File at Supreme Court

Sekulow Radio Show / Jay Sekulow & Jordan Sekulow

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December 10, 2020 12:00 pm

BREAKING: President Trump and 18 States File at Supreme Court...

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This is Jay Sekulow.

We've got breaking news. The President files an intervention at the Supreme Court and 18 states file a brief in support of Texas. Live from Washington, D.C., Jay Sekulow live. President Trump very enthusiastic about this case. That is why he asked the Supreme Court yesterday to intervene in the case as a private citizen and as President of the United States. The President intervened because his rights as a candidate are affected by the defendant state's failure to follow and enforce state election laws during the 2020 election. Phone lines are open for your questions right now.

Call 1-800-684-3110. Seventeen other states have also joined the case in addition to President Trump. As you mentioned, those respondent states have gotten until 3 o'clock this afternoon to file their briefs with the Supreme Court. And now, Chief Counsel for the American Center for Law and Justice, Jay Sekulow.

Everybody, welcome to the broadcast. Let's get right to it. So the President of the United States has filed a motion to intervene at the Supreme Court in the case involving Texas in four states. You remember we talked about that case yesterday. Excuse me, Texas has filed against Pennsylvania, Georgia, Michigan, and Wisconsin. Also, 17 states have filed briefs in support of Texas. Andy, the case has changed drastically in the last 24 hours.

Yes, it has. This is now a very, not that it wasn't to begin with, a serious piece of litigation, but now it is a piece of litigation that has garnered national attention. We have, I think, with the 17 states that have come into this case now, a substantial number of jurisdictions who are supporting the position of Texas, that the choice of electors in the jurisdictions that are named as defendants was in violation of the state laws pertaining to how you choose Presidential electors, and therefore it diluted the vote of Texas, and therefore it violated the equal protection of the law.

So now we have Jay along with Texas, Missouri, Alabama, Arkansas, Florida, Indiana, Kansas, Louisiana, Mississippi, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, and West Virginia. And late last night, Arizona filed a motion for leave to come in to assert substantially similar arguments, but to really urge the Supreme Court of the United States not to simply exercise its jurisdiction, but to exercise it in fact mandatory, and to come into this case and to solve the national chaos that has ensued. So it's a very important piece of litigation.

I think it's not being as really focused on in the national media as it should be because it is and could be outcome determinative. Well, if they take it, and in other words, briefs are coming in tomorrow, but if in fact they take the case, grant jurisdiction, Harry, at that point, the case is outcome determinative. Absolutely. Doesn't pick who, but it is outcome determinative.

Absolutely. So the four defendant states, Georgia, Pennsylvania, Michigan, and I just forgot another one, they total 60, Wisconsin, they total 62 electoral votes. So this case is indeed outcome determinative. And it is clear beyond question that the constitutional issue surrounding Article II of the Constitution, the so-called Electors' Clause, is in play. And each and every state in the United States has an interest in this particular case going before the United States because to the extent that state A engages in misconduct in violation of the United States Constitution, that then dilutes the vote of each and every citizen in each and every state. In the next segment of the broadcast, we're going to go through what these states are arguing and what the states in support of the state of Texas are arguing, as well as what the President's basis for intervention is. You will find that this is questions of law.

So it's not really electioneering or election fraud. It's questions of law. We'll get into that. How does that apply?

What does it mean? We'll take your calls also at 800-684-3110. Don't forget, we're in our matching challenge here at the ACLJ. You can participate at ACLJ.org.

Any amount you donate, we get a matching gift for. That's ACLJ.org. A lot of action at the Supreme Court. The other side's briefs due tomorrow. At the American Center for Law and Justice, we're engaged in critical issues at home and abroad, whether it's defending religious freedom, protecting those who are persecuted for their faith. I'm covering corruption in the Washington bureaucracy and fighting to protect life in the courts and in Congress. The ACLJ would not be able to do any of this without your support.

For that, we are grateful. Now there's an opportunity for you to help in a unique way. For a limited time, you can participate in the ACLJ's matching challenge. For every dollar you donate, it will be matched. A $10 gift becomes $20.

A $50 gift becomes 100. This is a critical time for the ACLJ. The work we do simply would not occur without your generous support.

Take part in our matching challenge today. You can make a difference in the work we do, protecting the constitutional and religious freedoms that are most important to you and your family. Give a gift today online at ACLJ.org. Only when a society can agree that the most vulnerable and voiceless deserve to be protected is there any hope for that culture to survive. And that's exactly what you are saying when you stand with the American Center for Law and Justice to defend the right to life. We've created a free, powerful publication offering a panoramic view of the ACLJ's battle for the unborn.

It's called Mission Life. It will show you how you are personally impacting the pro-life battle through your support. And the publication includes a look at all major ACLJ pro-life cases, how we're fighting for the rights of pro-life activists, the ramifications of Roe v. Wade 40 years later, a play on parenthood's role in the abortion industry, and what Obamacare means to the pro-life movement. Discover the many ways your membership with the ACLJ is empowering the right to life.

Request your free copy of Mission Life today online at ACLJ.org slash gift. Hey, by the way, if you're watching on any of our social media platforms, including Facebook, YouTube, Rumble, Periscope, I'm sure I'm leaving something out. But if you're on YouTube, which we've started getting a lot of people watching on YouTube, let me encourage you to subscribe. You go right over there to the, when you go on our ACLJ page, watching the broadcast right now you are, just hit subscribe and then there's a bell. And if you hit the bell also, that will give you a notification whenever we come live. So we encourage you to do that. Again, let's just hit subscribe and then the bell, that'll be great.

Same thing, Facebook, you know how to subscribe on that as well. All right, let me break down again what has happened. So initially on Tuesday, or Monday night, Tuesday morning, the state of Texas filed a bill of complaint with original jurisdiction to the Supreme Court of the United States. What that means is the case does not go through the district court, the court of appeals, and then to the Supreme Court, it starts at the Supreme Court. That's because the state of Texas has filed a lawsuit against the Commonwealth of Pennsylvania, the state of Georgia, the state of Michigan, and the state of Wisconsin.

So those cases have original jurisdiction. That was filed Tuesday. Yesterday, the President intervened, filed a motion to intervene.

He hasn't, intervention hasn't been granted yet, because he's what's called the real party in interest and it impacts him. None of these cases call for a determination of the outcome of the election, by the way, but that was filed yesterday, a motion to intervene on behalf of the President. And then about the same time, maybe an hour before, 17, maybe 18 states now have filed friend of the court briefs, either supporting Texas totally, or in Arizona's case saying, look, we're not going to get to the merits, but we think it's important that you hear this case and we believe your jurisdiction state to state is mandatory, not optional. So what they're saying is what we say in our positions is that the original jurisdiction when you have states as on both sides of the case is mandatory, Harry, that the Supreme Court has to hear it.

Absolutely. That's not the position of the Supreme Court other than a couple of justices, Alito and Thomas, but that's what the statute says. So if we go back to Arizona versus California, a decision taken in 2020, this year, Justice Thomas and Justice Alito both agreed that the Supreme Court's original jurisdiction in this particular case is mandatory.

It's not optional. So that would mean that the Supreme Court has to take this case, has to consider this case and has to decide this case. Now, it's not clear that a majority of justices of the United States Supreme Court agree with that position. But I think Justice Thomas and Justice Alito have the superior constitutional argument. And it's very, very important that the state of Arizona has filed a brief in support of that notion. And we will have to wait and see whether the Supreme Court majority agrees with that. But major constitutional issues affecting each and every citizen in each and every state are at risk with respect to whether or not the Supreme Court takes this case. Otherwise, the Supreme Court effectively, not necessarily intentionally, would unleash administrators, the executive branch, to violate the Electors Clause of the United States Constitution. So this is a very, very important series of cases.

So let me ask, I think this points to the next question, Andy, and that's this. We said one case, like in Bush versus Gore, there was going to be one case that would be outcome determinative. We, I think, have clearly reached that outcome determinative case right here. You're there. You are there. There's still other cases pending, but this is the outcome determinative case. You are there. You are there with Texas versus Pennsylvania.

There's no doubt about it. You have 62 electors at stake. And I want, really, I want to focus on something that is very important for the audience to understand and those of you who are listening to understand. The allegations made by Texas and supported by these 17 other states that I rattled off their names is not, has got nothing to do with election fraud or election rigging or anything like that. What it is saying is very simply this. Each state needs to conduct its election laws in accordance with the laws mandated and passed by the legislatures of those states, okay? That's what our federal system is about. Remember, this is a federal union. That means everybody does things according to the law and that was what binds us together. What Texas is saying is that Wisconsin and Michigan and Georgia and Pennsylvania violated their own state laws in doing things in a proper, in a fashion that was improper.

And only the legislature under the constitution can send the, set the manner and the means of by which electors are chosen. Non-legislative actors like the Secretary of State in Michigan, who took it upon herself to send out 7.7 million absentee ballots when Michigan law does not permit her to do that, violated the law. When in Georgia, I'm sad to say my state, the Secretary of State entered into a settlement agreement with Stacey Abrams and the Democrats that said you don't have to verify a signature with the voter registration card when state law says you have to.

Who are you, Brett Raffensperger, to do that? What authority did you have to do that? State law says the contrary.

You have no business violating state law and that's what Texas says. Therefore, the 62 electors in these states… And again, I want to underscore that. We're not talking about disenfranchising. People are saying these lawsuits are disenfranchising, you know, 100 million voters or 250 million voters or 300 million voters.

Actually, it's not disenfranchising anyone because there still will be, the states will still put up electors if the state of Texas is careful. But how many is involved? Sixty-two.

Sixty-two. That makes a difference in the outcome. So, you know, the legislatures now need to step in, that's the argument that's being made, and to say, look, this is the way you elect the slate of electors, consistent with state law.

So it begs this question and that is, and this is, and by the way, let me correct something I said earlier. The briefs are actually due today at three o'clock. So the briefs are coming in at three o'clock today. So we'll have the briefs from all four states. It'll be interesting to see if they file a consolidated brief or if they file separately.

We will see. The amicus brief took the same position here, that their voters, because of the irregularities that took place and the change of state law without the appropriate process, have had their votes, Harry, diminished, or if you will, percentage, if you, if the allegation is basically this, the actions of the four states and changing the way in which the ballots were to be collected and mailed in and done with appropriate security safeguards, those changes impacted the value, so to speak, of the voters in these states. What a lot of people do not know is that you don't have a constitutional right to vote for President. That in our history early on, it was the Senate that would put up the electors.

So there's a whole constitutional process when an irregularity happens in an election, even if it's a procedural irregularity or a violation of state law, which is what we're talking about here. But this is not foreign to the constitution, Harry. The constitution anticipated this. The founders anticipated this.

Precisely. So the key distinction is between executive branch decision-making and legislative branch decision-making at the various states. So pursuant to the United States constitution, it is up to the state legislature to set the terms of an election in each and every state.

That's number one. Number two, once those terms have been set by the state legislature, those terms cannot be varied except by the state legislature itself. Any other change in my opinion is arguably unconstitutional on its face. And so what the state of Texas is arguing is that these defendant states, Georgia, Wisconsin, Michigan, and Pennsylvania, they engaged in, if you will, executive slash administrative branch misconduct. That misconduct standing alone dilutes the votes of citizens in each and every other state. So in 46 other states, their votes were indeed diluted. So the United States constitution basically suggests that litigation between two states creates something called original jurisdiction, meaning that the case must originate before the United States Supreme Court and the United States Supreme Court must ascertain, in my view, whether or not these executive and administrative branch changes were indeed valid.

And then come up with the appropriate remedy. The case is entitled state of Texas versus the Commonwealth of Pennsylvania, state of Georgia, state of Michigan, state of Wisconsin. It's case number 220 for original 155. It's original jurisdiction on an election. This is the moment.

This is the case. We said there would be one. This is the one that will be outcome determinative in our view. It doesn't mean these other state court cases stop, but this is really the ball game right here in our view.

We're going to take your calls and comments when we come back. And don't forget, support the work of the ACLJ at ACLJ.org. Only when a society can agree that the most vulnerable and voiceless deserve to be protected is there any hope for that culture to survive. And that's exactly what you are saying when you stand with the American Center for Law and Justice to defend the right to life. We've created a free, powerful publication offering a panoramic view of the ACLJ's battle for the unborn.

It's called Mission Life. It will show you how you are personally impacting the pro-life battle through your support. And the publication includes a look at all major ACLJ pro-life cases, how we're fighting for the rights of pro-life activists, the ramifications of Roe v. Wade 40 years later, a play on parenthood's role in the abortion industry and what Obamacare means to the pro-life movement. Discover the many ways your membership with the ACLJ is empowering the right to life. Request your free copy of Mission Life today online at ACLJ.org slash gift. At the American Center for Law and Justice, we're engaged in critical issues at home and abroad. Whether it's defending religious freedom, protecting those who are persecuted for their faith, uncovering corruption in the Washington bureaucracy and fighting to protect life in the courts and in Congress, the ACLJ would not be able to do any of this without your support.

For that, we are grateful. Now there's an opportunity for you to help in a unique way. For a limited time, you can participate in the ACLJ's matching challenge. For every dollar you donate, it will be matched. A $10 gift becomes $20.

A $50 gift becomes 100. This is a critical time for the ACLJ. The work we do simply would not occur without your generous support. Take part in our matching challenge today. You can make a difference in the work we do, protecting the constitutional and religious freedoms that are most important to you and your family.

Give a gift today online at ACLJ.org. Hey, welcome back to the broadcast, everyone. We are going to take some of your calls. We'll get some comments up from YouTube and Facebook as well. So let's go ahead and get some of those comments up.

Let me also say this. If you are watching on our social media platforms and they have really exploded over the last month, if you're on YouTube, hit that subscribe button right now and also the bell next to it so you're notified when we come live. Obviously, we're live at this time of day when you're watching us, but there are other times of the day when we will come as well and we encourage you to stay. It's a great way to stay engaged with us. So go ahead and hit the subscribe button on YouTube and also the bell. Also, we're now on Rumble, not live, but it is posted later in the day.

So you can look at us there, Facebook, of course, ACLJ.org and Periscope. YouTube Super Chat from G says, since there are a number of anti-Trump Republicans, even if it goes back to the states, could the Republican led legislatures still decide against President Trump? And the answer to that is yes. The court is not going to say who the electors are or from what party the electors are, Andy.

No. Look, this is not, and Texas says we're to the Supreme Court. We are not asking you to decide this election and to name the victor.

We're not saying that. It's not the Supreme Court's job to decide whether it's Trump or Biden who's the President. What it is saying is that if you find that the equal protection of the laws has been violated and these four defendant states did not conduct their elections in accordance with their state statutes, send it back to the legislature and let the legislature, as the constitution permits, pick the slate of electors. And yes, conceivably, Jay, a Republican legislature in a particular state could cast its votes for someone other than President Trump. They could cast the votes for, or they could not cast a slate of electors at all if they don't want to. And then therefore they just don't, they don't vote. And then of course the 12th Amendment might come into place and the House of Representatives decides it. But that's what, it's very important to realize Texas is simply saying this and it's in, it's in the complaint very clearly. Non-legislative actors, that is if you're not a legislator and you're not in the legislature, you're the secretary of state, lack authority to amend or nullify election statutes.

And you know what the authority for that is that's cited? Bush versus Gore decided in 2000. In other words, the elections have to be conducted in accordance with what state law says.

These four states didn't do that, therefore their electors should not be qualified to vote for the President. We do have some breaking news. Israel and Morocco have agreed to a normalized relationship. The President just said Thursday, this is the fourth Arab-Israeli agreement in four months.

Now, I don't know what Joe Biden's going to do about this. These are bilateral agreements. So, Harry, he can't undo them, but these are significant Arab countries or predominantly Muslim countries that have, have really shown an alliance towards Israel. It's changed, this administration has effectively changed the shape of the Middle East.

Absolutely. And contrary to the forecast by President Trump's opponents, President Trump has advanced the notion of Middle East peace effectively. And so what we have now are four substantive agreements advancing peace and normalization in the Middle East. And think about it, President Obama, the Obama-Biden administration did very little except inflame the situation in the Middle East and throw Israel, our ally, under the bus at the very last moment.

So I think this is very, very important news, very, very welcome news, and President Trump deserves credit. Tomorrow's program, we'll do a segment on this, maybe get David Benjamin or Rami Levy or someone from our Israel office to participate in that. Maybe Skip Asher as well, probably would be very helpful. Let's go take a couple of phone calls. Again, if you want to talk to us, 800-684-3110.

I'm going to start in the order they call. Janice is calling from Washington state on line two. Hi, Janice. You're on the air, Janice.

Thanks for taking the call, Jay. Yes. Could the state of Texas at this point and going forward add any other states to their lawsuit, for example, like Nevada or Arizona, if the state of Texas believed that one of those states also violated their own election laws? In other words, well, then they would have to file a motion to amend their motion for a bill of complaint, not likely.

Not likely. Now, Arizona, interestingly, was not named, filed a brief not saying the address of the merits, but saying the court better addressed the merits because there is an election integrity issue here and it better be addressed quickly. And I think the key aspect of that in my mind, Janice, is this case is the one that sets it up because, and we're going to walk through in the second half of the program how this works if the state legislatures go back. And what if the state legislatures, because, Andy, we talked about this possibility, can't come to an answer. They may not.

They may not be able to. They may not be able to come up with a candidate with a slate of electors, in which case we'll tell you that it goes to the House of Representatives where each state has one vote. It's not 435 votes, folks. Each state has one vote depending upon the state delegations.

They make the decision. And I believe the Republicans control 27 of the state delegations and the remainders are controlled by Democrats. So the state delegations get together and decide which candidate they're going to vote for.

That would happen if there is no, no one reaches 270 votes in the Electoral College. You don't need to add any more states. You've added to the Texas litigation.

This 62 electors, if they are disqualified because they didn't follow their state laws in electing the electors, okay, that is sufficient to be outcome determinative if the Supreme Court decides that state law was violated as Texas says it was. All right. So what I want to do is encourage everybody to do this. Look, here's what's going to happen. We're going to get briefs filed this afternoon at three o'clock from the various states.

We'll review them, of course. Then the case is actually joined at that point. What I mean by joined is are the briefs of the President, the brief of Texas, the brief of the amici have all been filed. There was a group of lawyers that filed against the state of Texas. Their amicus brief has been filed. So all those briefs have been filed by three o'clock this afternoon, which means it's probably the entire case is then distributed to the Supreme Court.

There are multiple issues on which the court has to address. It is a motion to have a bill of complaint granted. It is a motion for a preliminary injunction. It is a motion for a stay pending that injunction.

It is a motion also for an administrative stay. That is going to be done by a justice. All of that is pending.

All of that's being responded to. So we will know, I think we will have an idea when we have their briefs, I can kind of guess what they're going to say. And then I think the next thing to look for is what does the court do? Do they grant the case, which Justice Thomas and Justice Alito think is mandatory?

In other words, original jurisdiction means you have to take the case or did the other justices prevail and it becomes discretionary and they don't take the case. And if they do take the case, do they have oral argument? Do they not have oral argument? Do they decide it on the papers?

Those are all of the options. We're going to get into all that in the second half hour of the broadcast. If you don't get the full hour of the broadcast, let me tell you, there's a lot of ways for you to get it.

You can go over to ACLJ.org. We're streaming it there. You can go over to YouTube. We're streaming it there. Yeah, you could go over to Facebook and Periscope and you can get it there.

I'm sure I'm leaving out platforms. Later in the day, you can get it at Rumble as well. We encourage you to do that. Subscribe as well if you're on YouTube right now. Very important. But also, support the work of the ACLJ. You like this program?

You get engaged? ACLJ.org. Any match you donate this month, we get a matching gift for. ACLJ.org.

At the American Center for Law and Justice, we're engaged in critical issues at home and abroad. For a limited time, you can participate in the ACLJ's Matching Challenge. For every dollar you donate, it will be matched. A $10 gift becomes $20.

A $50 gift becomes $100. You can make a difference in the work we do, protecting the constitutional and religious freedoms that are most important to you and your family. Give a gift today online at ACLJ.org. Thank you. And now, Chief Counsel for the American Center for Law and Justice, Jay Sekulow.

All right, so if you're just joining us, let me tell you what happened. So, of course, on Tuesday morning, early Tuesday morning, the state of Texas filed a bill of complaint, an original jurisdiction with the Supreme Court of the United States against the Commonwealth of Pennsylvania and, of course, also the state of Georgia, state of Michigan, and state of Wisconsin. So, that case was filed. Then they filed a brief. They filed a motion for leave to file a bill of complaint, a brief in support, a motion for an injunction, a motion for a stay, and a motion for an administrative stay.

So, that's what's being required to be filed to. The court issued an order later that day, Tuesday, that said, here's what we want. We want the four states to respond to all of this by three o'clock today. So, if you're watching us live in just a couple of hours, they have to submit their briefs.

So, that's going to happen at three o'clock today. Then, just so we continue this, the 17 states came in and filed an amicus brief in support of the position of the state of Texas. Then, the President of the United States moved to intervene in the case because he's the real party in interest.

So, that is what has happened. Now, let me tell you what the case is about. The case is not going to determine whether Donald Trump or Joe Biden is the winner. That's not what they're asking for. In fact, they say that in their complaints and in their briefs. What's at issue is the constitutionality of the selection of those four states' electors.

And Andy, that's why it's important to draw the distinction between, it's outcome-determinative in the sense that those four states, where those electors go, will determine the election. But they're not saying in the complaints, nor is the President saying, you must pick, you know, you got to decide Donald Trump President. They're not doing that. No, they're not doing that.

No one's asking that. No, and Texas is not asking that. The amicus states are not asking that. Nobody is asking the Supreme Court to decide the election. What they are saying is this, actions by non-legislative election officials in the defendant states, people like the secretaries of state, those actions which were not authorized or ratified by the state legislature were unconstitutional. That's the heart of this case.

That's what they're saying. The secretary of state cannot extend things, agree to things that are not permitted by the legislature, agree that only the signature on a ballot doesn't have to be compared with the signature on the voter registration card, as Raffensperger did in Georgia. Who are you to do that? You're the secretary of state. You're not the state legislature. You're not the general assembly. Who are you to make a decision like that, Raffensperger? You have no right to do that. And that's exactly what we're saying, what the states are saying.

Non-legislative actors got involved in this and should not have done so. All right. Super chat from Theo says, what can each one of us do to help? Well, at this point in a couple of hours, the issues are joined here.

So pray, support good organizations that do work like ours and others, but specifically the ACLJ, of course. And we're going to see what the next move is. And they may call for additional briefing. It's possible they say they want a reply brief from the state of Texas on Friday.

That could be something. So we'll see. Let's go back to the phones. I'm going to try to do some calls. So many people are calling in. Let's go ahead and bring in James from Vermont. James, go ahead. You're on the air. Hi, I'm a huge supporter of ACLJ.

I'm so glad you guys are explaining this. My question is that if the Supreme Court should agree with Texas, that the four defendant states have violated the constitution and the Supreme Court sends it back to state legislatures and they continue to vote for Biden. Can Texas contest that? Because the court has declared that it was a constitutional violation. The answer to that, and I'll let Harry explain, is no, because all the court can do is order the state legislature in 30 seconds through this area to pick the next slate. Absolutely. So the state legislature would then have the exclusive right to select electors for the presidency.

That is a right given to them by the United States Constitution. All right, very good. Hey, talking about support, support the work of the American Center for Law and Justice, ACLJ.org. Any amount you donate, we get a matching gift where we encourage you to do that. If you're watching on Facebook, like our Facebook page, follow us. If you're on YouTube, hit subscribe and hit that bell so you know when we're live.

Same thing on Rumble. At the American Center for Law and Justice, we're engaged in critical issues at home and abroad. Whether it's defending religious freedom, protecting those who are persecuted for their faith, uncovering corruption in the Washington bureaucracy and fighting to protect life in the courts and in Congress, the ACLJ would not be able to do any of this without your support.

For that, we are grateful. Now there's an opportunity for you to help in a unique way. For a limited time, you can participate in the ACLJ's Matching Challenge. For every dollar you donate, it will be matched. A $10 gift becomes $20.

A $50 gift becomes 100. This is a critical time for the ACLJ. The work we do simply would not occur without your generous support.

Take part in our Matching Challenge today. You can make a difference in the work we do, protecting the constitutional and religious freedoms that are most important to you and your family. Give a gift today online at ACLJ.org. Only when a society can agree that the most vulnerable and voiceless deserve to be protected is there any hope for that culture to survive. And that's exactly what you are saying when you stand with the American Center for Law and Justice to defend the right to life. We've created a free, powerful publication offering a panoramic view of the ACLJ's battle for the unborn.

It's called Mission Life. It will show you how you are personally impacting the pro-life battle through your support. And the publication includes a look at all major ACLJ pro-life cases, how we're fighting for the rights of pro-life activists, the ramifications of Roe v. Wade 40 years later, the play on parenthood's role in the abortion industry, and what Obamacare means to the pro-life movement. Discover the many ways your membership with the ACLJ is empowering the right to life.

Request your free copy of Mission Life today online at ACLJ.org slash gift. We explained again, and I think, Will, I think we need to do it one more time, what this case decides, okay? So by this afternoon at 3 o'clock, the issue is joined. That means the briefs have been filed. Andy and Harry and I will look at the briefs this afternoon when they come in.

Where we are in our studio is an hour behind, so it'll be 2 o'clock our time, 3 o'clock East Coast time. It may take them a little while to get it certified up on their website, but we'll get the briefs, we'll look at them, see what we've got. At that point, the issues are joined. So the Supreme Court has a very interesting dynamic, and that is what do they do with it? Now, Harry, there's two justices, Justices Alito and Justice Thomas, that are of the view when a state sues another state, that that jurisdiction at that point is granted.

It's an automatic, it's exclusive, it's original, and it must take place. They don't think it is discretionary. Now, we don't think that the other, we don't know about the other three newer justices, although Gorsuch and Kavanaugh did not sign on to Alito's opinion back in February in that Arizona versus California case. But to reiterate, Harry, what Andy said about what is the, when we say it's outcome-determinative, what is the remedy here? Let's talk about what so people's expectations are right. Look, the court could also deny it. They could say, you know what, we've looked at it. No, we're not going to even accept the jurisdiction. They could say, we've looked at it. Here's the opinion. They could say, we're granting it. We're going to have all arguments Saturday.

I have no idea. I mean, they could do any of those things. But the remedy, I think it's very important for people to understand what the likely remedy is here. Absolutely. So first, I think your analysis is absolutely correct. The Supreme Court does indeed have original jurisdiction. Whether a majority of the Supreme Court agrees with my analysis or not, that is indeed my opinion. Assuming the Supreme Court takes this particular case, the most likely outcome, if they rule in favor of Texas, is to simply kick back the decision as to who the state will select as electors to the state legislature. And the state legislature may indeed decline to select electors, meaning that this case ultimately, or at least the vote for President, will ultimately be decided by the House of Representatives. So the point that I'm trying to make here is that the Supreme Court will not determine the winner of this election.

It will simply decide, or could decide, that the four defendant states have engaged, if you will, in misconduct, meaning that the administrative slash executive branch usurp the power and authority of the legislative branch, and it's up to the legislative branch to reclaim its authority and then select electors or decline to do so. Let's go to Robert. He's on line three. He's been holding for a while. Robert, welcome to Broadcaster on the Air.

Hey, Jay. Thank you. My question is, why was the Texas case not brought immediately after the election? Can you talk about the strategy, why they're bringing it at the safe harbor date on the 14th? I think there was litigation pending in a number of these states, so that the campaign had engaged in. So I'm sure, and by the way, I'm speculating on this, so I'm sure they wanted to see how that litigation was going to go, because taking original jurisdiction is a big step.

Once it looked like the litigation's going in a certain direction, or not moving fast enough, or just being dismissed, or cases going against you, then I think the state of Texas looked at, Andy, what their other remedies were. That's right. And it takes time to put them together. You don't just throw these things together. You think about them, and you look at what Jay said. You look at what was pending in other jurisdictions, and you see maybe that you don't have to do this.

Maybe the courts in these other states will rule in favor of what needs to be done in the case or what ought to be done. But Ken Paxton did it when he thought it was appropriate to do it. And I'm sorry that he did it late, but that was his decision. Maybe he had good reasons for doing it. I'm proud of him for doing it. I'm very proud of him for doing it, but this is what he had to produce. I mean, this is it. Now, these are what goes to the courts, the bound version of this six inches of legal paper. But there's a lot of work that has to do.

That doesn't happen in a night. That's weeks of work. And you're watching how the other litigation is playing out at the same time. Let's go to Stephanie. We are taking your calls at 800-684-3110. Stephanie, go ahead. Thanks, Jay. Okay. Please keep in mind what I'm about to remind you of when answering my question.

You reported a good while ago that thousands of people who had already voted indicated they wanted to change their vote after they followed the debate. So net and net, I'm not clear if the Supreme Court... Well, yeah, but... Well, go ahead and finish. I'm sorry.

I don't want to cut you off. If the Supreme Court takes the case and decides in favor of Texas, does that mean that those in the contested states have to vote again or will it be decided by the House? No. I'm glad we keep repeating it because I know this is complicated.

No. All it means is that the states will return to the state legislature, not the courts. This didn't come up through courts. Remember, original jurisdiction invested at the Supreme Court. The Supreme Court then, if they ruled in the favor of Texas, would just send it back to the state legislatures and tell those legislatures, select the electors. And if they don't select the electors, Andy, what happens? It could go to the House of Representatives under the 12th Amendment. If no candidate gets 270 electoral votes, okay, if no candidate gets, upon remand to the legislatures, if the Supreme Court does that, okay, and neither Biden nor Trump gets 270 votes, it goes to the House of Representatives where each state has one vote, not 435 votes, one vote. And it's decided by a vote among the delegation of the state.

The majority delegations in the House of Representatives are Republicans. Presumably, they would vote for the Republican candidate. But it's not mandatory.

It's not mandatory either. They could vote for anybody they want to. They don't even have to vote for the two that are on the table.

They could vote for Jay for President if they want to. Let's not even start that, okay? Then please. Let me take a couple of questions and comments.

I'm coming in super chat. Kimberly said, can you please explain an amicus brief as in relation to what other states are joining on? So the other states could have intervened in the case or they could file a friend of the court brief. An amicus brief is a friend of the court brief. It's read by the justices. It's bound also and when it's filed in a green cover.

I'm see if I have one handy here. I don't think I do, but it's a green cover brief. And it is, the idea is that we've actually had frequently our amicus brief cited by the justices. I think we've been cited by justices Alito, Chief Justice Roberts, Justice Stevens, Justice Brennan, I think once, and I'm leaving somebody out.

I hate leaving somebody out. This is what it looks like. Maybe it was Justice Thomas. This is what it looks like. So an amicus brief is this.

It's a green brief printed. That's what it looks like for our television audience. So has the same effect, same impact. One other super chat question is, if the super fails, does SCOTUS declare void the entire election and require that all state legislatures choose their electorate? Does it only apply to those four states? I'm glad we're getting these questions. Only the four states.

Let me tell you what we want to do on this program is explain to you what it is, okay? This is two things we need to be clear on about this litigation. This litigation is about state law not being complied with. And number two, it's not asking for the court to pick the winner. It's simply asking for the court to say the electors because of the way the state law was not complied with was a violation of equal protection and due process and the elections clause and the electors clause of the U.S. Constitution. And that the remedy should be that the court orders the legislatures to appoint the new electors. That's the way this works.

That's the way it's supposed to work. Let's take Donald from South Carolina. Donald, you're on the air.

Very quickly. Thank you. Thank you, Jay.

We appreciate all the work you all are doing. My concern, and I really appreciate what Texas says. My question to you or the dilemma I'm saying is that all of the news media is acting like even this Texas suit has nothing. So if the justices do rule in this case, the Stacey Abrams of the world, and I'm African American, I can say this, will take this and turn it to the people and we'll have riots and other things because the news media is not portraying this as a constitutional issue. They're taking this as a Trump issue instead of the constitutional issue. So I'm asking you, what can we do in order to communicate, even though the national media is not doing it?

No, Donald, I appreciate what you're saying. And look, that's why we're on a thousand radio stations. We're broadcasting on every social media platform we can, including Facebook, YouTube, Periscope, Rumble, and I'm sure I'm leaving things out, Instagram as well. We put information up. Look, they're not covering it. They're starting to cover it a little bit more when the states join, but it's going to be really hard to ignore it if the court grants jurisdiction and decides they're going to decide the case. And it'll certainly be impossible to ignore if the court were to say the four states have to select new electors.

Look, it goes against the media narrative, but what we're doing on this broadcast, what we do at the ACLJ is we just give you the facts as they are. This is a question of law. That's what's before the Supreme Court of the United States, a question of law. The remedy is set forth in the US Constitution. The state legislature selects the electors. If they can't do it and nobody gets to 270, it goes to the Congress. That's called the 12th amendment.

So the founders and then the subsequent amendments of the constitution figured all of this out. What we're doing is just making sure that this is being complied with and your support of the ACLJ makes that happen. You like this broadcast, you enjoy getting this information and support the work of the ACLJ and our matching challenge gift right now, ACLJ.org.

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Give a gift today online at ACLJ.org. If you're watching on social media platforms, share it with your friends. Also, we encourage you to subscribe on those media platforms so you get notices and update. We're going to take the calls and order that they've come in. And let's go to Beth, who is calling from North Carolina on Line 6. Beth, go ahead.

You're up. Okay. I understand that the Texas case is not about election fraud, but rather a question of law about the unconstitutional acts contravening state laws. But hypothetically, in the future, if state legislatures choose to write law that mail-in ballots without safeguards are going to become a part of their statute, if states decide to sue other states because of the knowledge that this is potential fraud, would the Supreme Court, number one, be required to take it, or would it have to work its way through the court system with an appellate procedure? And then what would be the remedy?

No, that's great. Great question. It would start in the district court. It would not be original jurisdiction. Well, it could be original jurisdiction if the state sues the other state. But if you have voters suing the states, that would be different. But if it was state to state, it would be original jurisdiction.

It would be the very same questions being raised now. It would be equal protection. It would be due process. It would be the elections clause and the electors clause. But the Constitution does give the states some wide latitude. Yeah, the Constitution gives the states the absolute right to make the means, manner, and method of choosing electors. And under their state laws, they can pick the way they want to do it. But the non-legislative actors, like the secretary of state, have to follow whatever that state's laws are. And what Texas is saying is that that didn't happen in this case.

We did. Texas is saying we followed our state laws. Y'all didn't do it in these defendant states, and therefore you've diluted our vote, and our vote is nullified.

Therefore, go back to the legislature and select the slate of electors' legislature as the Constitution and the law provides. All right, let's go to Grace, who's calling from California in line two, a state that is not in play. Grace, go ahead. Hello. Thank you for taking my call, gentlemen. But I do need to say, Grace, that it is also one of our largest listening audience states, probably is our largest listening audience state, so nothing against California.

Go ahead. You are a very large state. If the Supreme Court takes your case, what is your detailed argument for how the votes of people in other states were diminished by the conduct of the defendant states? Specifically, can you address the fact that all parties had the same opportunity to vote in the same way in those states?

Weren't all the voters sent the absentee ballots? Yeah, but every state had different rules and regulations. That's a problem when you don't have a national standard for voting. So the ability to diminish or dilute the vote of a sister state is very real. For instance, if the state of Texas has a requirement that you have to have ID, it's got to have a security envelope signed on the inside, and the state of Georgia says, no, we'll just take anybody who comes in. Well, there's going to be a lot of ballots thrown out in Texas that would have counted Harry in Georgia. So that's where all this comes in.

Absolutely. So the basic premise is that every legal vote should count with respect to electing electors. Number one, here the claim is that illegal votes, votes that should not have counted were indeed counted.

What does that mean? It means that those votes, those illegal votes, diminish the power and influence of legal votes in each and every one of the sister states. So in 46 states in the United States, assuming the state of Texas' argument is persuasive, their votes were indeed diluted, for instance, by the actions of the Secretary of State of Michigan, Jocelyn Benson, who mailed out 7.7 million absentee ballots to individuals who did not request it. Now, she could have mailed those votes out if she had received permission from the state legislature.

She failed to do so. Those votes, if they were indeed counted, they are indeed illegal. Yeah. So that's exactly how the process works.

And that's where the diminution of the vote takes place. Bill's calling from Georgia. Hi, Bill. Hey, thanks for taking my call.

Look here. I've got a question about the way I understand the Article 2, Section 1 argument. I'm all in with that and good. I've been talking to my state senator and he's been putting out Facebook updates and he's basically saying they are powerless unless the governor calls a special session. The governor can't call a special session unless there's some court ruling that says he has to because the governor and the legislature are not investigative bodies. But here's what happens, Bill. If the Supreme Court of the United States came out and said, okay, we find in favor, and this is if they find in favor of Texas, well, then either Georgia's going to have to get back into session or you don't get electors.

That's exactly right, Jay. Either we get back into session in the General Assembly or that Georgia will not be represented in the selection of electors, which I don't think Governor Kemp would want to happen. So I think that if the Supreme Court rules that the Georgia actors, non-legislative actors, violated the method of electing the President and show electors as Georgia law requires, if they find that and they send it back to the legislature, I guarantee the General Assembly is going to meet.

Georgia's not going to be one to be left outside the door in electing a slate of electors. Let's go to John. He's calling on line five. Hi, John. Hey, how you doing? Good.

I have sort of a two-part question. I don't have a whole lot of information or knowledge about how the Supreme Court works, but there's a number of states that have joined this case to impact the decision on what the ultimate outcome would be. And also to add to that, does any sort of political pressure or media pressure impact their decision or is it strictly just... Justices are supposed to be blind.

The media is not supposed to matter. They're supposed to decide it on the facts and the law here. It's really law-based, legally-based. I would think there'd be five votes, I'm guessing, but there are consequences to these five votes. So that look at the state statutes and say that what the administrative agencies or the secretary of states that was in contravention to the statute, go back to the legislatures.

Now that's me thinking what it should be. That doesn't mean that's what it will be. As it relates to the other states coming in, yeah, it helps. It helps in this context. Number one, it gets another brief before the court, but it shows that there was a lot of... I mean, you got basically 18, 20 states saying, we don't like the way this went down.

So I think it adds to the serious nature of this. I don't think there's really any question about it. I'll try to get AJ's in, but AJ, you need to be really quick. I'll be quick. I can be quick.

Okay, you're on. Okay. Contingent election. In section three of our article or section... I don't know. In section three, it says something on the lines of the states have to actually have everything settled, but if it's contested, then when all of the legislators meet, is it my interpretation? If it's my interpretation, I don't know. Is it saying that when the legislators meet, they cannot give electorates... No, no, no. You're interplaying the safe harbor, which is kind of past, and now you've got like an election challenge, an electorates challenge is what it really is. So those are statutory issues. The constitution trumps all of that. The dates are set by statute.

What the Supreme Court says on this is what will matter. That does it for the broadcast today. Thank you for joining us. Again, if you're on any of our social media platforms, including YouTube, Rumble, Twitter, Periscope, any of them, Facebook, Instagram, subscribe and like. On YouTube, subscribe, like, hit that bell, makes a big difference, and support the work of the ACLJ as we fight for religious freedom, as we fight for election integrity, as we bring you this broadcast each and every day, ACLJ.org.

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Whisper: medium.en / 2024-01-16 12:06:35 / 2024-01-16 12:28:54 / 22

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