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ANY MOMENT: SCOTUS Action on Texas Case

Sekulow Radio Show / Jay Sekulow & Jordan Sekulow
The Truth Network Radio
December 11, 2020 12:00 pm

ANY MOMENT: SCOTUS Action on Texas Case

Sekulow Radio Show / Jay Sekulow & Jordan Sekulow

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December 11, 2020 12:00 pm

Jay Sekulow Live Broadcast 12.11.2020 - ANY MOMENT: SCOTUS Action on Texas Case...

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Breaking news at any moment, the Supreme Court could take action on the Texas case, which could determine the outcome of the Presidential election.

We'll talk about that more today on Jay Sekulow Live. So Texas has put in a reply brief just to update you again, folks, on the amount of briefs that have come in. You have six states that have filed motions to intervene on behalf of Texas. That's Arkansas, Louisiana, Mississippi, Missouri, South Carolina, Utah. They want to intervene as parties. Those six states, plus an additional 11, have filed amicus briefs with Texas.

So, I mean, you've got 17 there. There are two states, Ohio and Arizona, that said this case needs to be heard by the Supreme Court. They didn't issue, they haven't written briefs yet on the merits.

That doesn't mean they won't if the court orders more briefing. And then you've got 106 members of Congress at this point, Republican members of Congress, in favor of filing a brief in favor of Texas. On the other side, you have, of course, the four states, Pennsylvania, Georgia, Wisconsin, and Michigan, but you also have 20 states, two territories, and D.C. filing alongside those four states in opposition. So this is very much a serious case of the U.S. Supreme Court when you've got almost the majority of states in the country weighing in.

I mean, we're just like six states short of every state in the country weighing in. We've even got U.S. territories weighing in to this case. So, I mean, I explained this way from the Supreme Court, action can come very early today, and it could come through an order and a specific statement. They could call for more briefing. They could call for oral argument. But I want you to know that they've now got the documentation in place where they could make the decision now at any moment. They don't have to call for oral argument.

They don't have to call for additional briefing or allow for additional amicus briefs. This decision by the court, and I want to remind everybody listening right now, this is the court of last resort, Andy. It is the final place you can go to make your case.

This is the single most important case because it's outcome-determinative. But at the Supreme Court, you go in thinking, okay, I'm here because this is the last place I've got to go. And though these states had original jurisdiction, it came about because all of the other court cases really led to this moment, whether or not state courts were dismissing things, federal courts dismissing things. So Texas brings this challenge now supported by, you know, 16 states and six that want to intervene. I mean, so again, I think, and two, they're saying, hear this case, Supreme Court.

That's what we're waiting to know. But the court could decide this with the briefing they've got now, today, right now. The court is in a position, if it wanted to right now, it has before it all the documents from all the parties who are going to make an appearance before the court and could decide the merits of the case or could decline jurisdiction and say that we exercise our discretion not to hear the case.

We're deciding not to do this and send it away and let the politics take its course. Or it could decide the case. It could assume jurisdiction, which it has the right to do. It's an original jurisdiction invoked matter. And that means they could decide that the Supreme Court could decide the case.

Furthermore, the matter is ripe. And what that means is that everybody who wants to be heard now has the opportunity to have been heard. The final word was put in by Texas just a while ago when they filed a reply brief to the briefs that had been filed by all these other defendant states, replying to what Texas had said. So now with the reply brief, the court could rule or ask for more or ask for oral argument, whatever. It's up to the Supreme Court. There's a lot of different ways it can actually play out.

Many different ways. And we'll explain that coming up, but it's going to move very quickly. It has to. And the court knows it has to. So again, stay with us.

Share this. If you're on Facebook, on YouTube, Periscope, if you're listening on radio, this is a very important broadcast. We'll be right back. 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. 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. Welcome back to Jay Sekulow Live.

This is Jordan Sekulow. So this is a critical day of the Supreme Court. Texas has filed a reply brief to the briefs that were filed by the states. Texas brought this lawsuit against the original jurisdiction and the bill of complaint.

So you had Pennsylvania responding, Georgia, Wisconsin, and Michigan. Texas has responded as well, which means the court could issue an order without anything else. Well, it means issues joined. So when we say issues joined in a case, it means the briefs for both sides of the parties are in. And that includes amicus briefs, including a brief ending with 109 members of the United States Congress. And also there were some lawyers filed some briefs. The President intervened, made a motion to intervene with a brief in support.

A reply brief was filed early this morning by Texas. So the next move really is the courts. It is the courts.

As you said, all the interveners who are going to seek to intervene have done so. The principal states have filed their briefs. The respondent states the defendants have filed their briefs.

There have been amici friends of the court who have come in and filed their briefs in the case. Texas has now filed a reply brief reasserting its position that remand to the legislature of the defendant states is the only viable option. Whether the legislature sets a new election or provides some other mechanism to allocate a defendant states electoral votes is up to the legislature. That has been the core of Texas's argument. Texas has not gone into anything other than saying what the Constitution provides needed to be followed by the other states and was not. Therefore the electors that were chosen by these other states diluted the votes of the electors in Texas and therefore the election of those defendant states electors should be rescinded and they not be allowed to vote in the electoral college and this not go back, not to courts, but to the legislature. I think it's important to stress, Jordan, I'm going to go to Harry on this, what this case is not about. This case doesn't select the President of the United States. We've got to be clear on that.

We were yesterday. But you need to understand it does not select the President of the United States. What the case does, it says if the court were to rule in favor of Texas, they would simply say the case goes back to the legislature to pick the 76 electors that are at play here. That's what the case does. It doesn't say Donald Trump is the winner or Joe Biden is the winner or Donald Trump is the loser and Joe Biden is the winner.

It doesn't say any of that. So it's outcome determinative. In other words, it could affect the outcome of the case, but really, if anything, if it goes in Texas favor, which is an uphill climb, it goes back to the legislature.

Absolutely. So the core deficiency attacked by Texas against the defendant states is that non-legislative actors effectively amended state law, state election law. What does that mean? It means that there were votes cast and counted which were not appropriate. In essence, they were illegal votes.

And so at the ACLJ, we have consistently maintained that every legal vote should count. And I think it is clear beyond question, if you look at state after state, if you look at Georgia, if you look at Pennsylvania, if you look at Michigan and Wisconsin, non-legislative actors intervene without the permission or the ratification of the state legislative branch. This is a legal challenge that the states did not comply with state law as mandated by their own legislature and their state constitutions. That's what's at stake here.

Now, we got a question came in from YouTube by Brett. Can Justice Roberts dismiss this case on his own? I think the answer to that is no. I think this is an original jurisdiction matter and I think it's mandatory. That's not the majority opinion of the court right now. The majority opinion is that it's not mandatory.

It's still discretionary. Justice Alito and Justice Thomas say it is mandatory, but I don't think he would, in the case of this magnitude, I don't think he's just going to dismiss on his own. Now, if we get one of those short orders and it's not positive for the President's side, you don't get names necessarily, right? Yeah, they could just say... Like the one did in Pennsylvania. Yeah, the motion for injunctive relief and bill of complaint was distributed to the court and the court denies the application.

Yeah. It could be that short. And then if they're dissenters or anybody wants to write, they can write under their name. But that, again, I think just to explain to people, it could be that simple from the Supreme Court. You might not get reasoning at all from the Supreme Court about their decision, though they have certainly received a lot of briefing in these last 48 hours, including now the Texas brief. Do you think that slows them down at all today, that they've got a reply brief from Texas? No, because the rule says they can decide without the reply brief. Right, they didn't ask for that.

And it's a short brief. No, they didn't ask for it. You're allowed to do it, but if it doesn't come in, they could still... Excuse me, when they said it's coming in at 3 o'clock yesterday, there was a reason for that. That was, they were going to start working on it yesterday afternoon.

That's why they said 3, they didn't want it at 5, they didn't want it at 8. I don't want people to read into that Texas reply brief and think the court ordered reply briefs. They did not. Texas did that on their own, which is okay to do, because they wanted to reply to the allegations in the lawsuit and the responses from the states.

They sued, but it wasn't like the court has gotten to that point where they've ordered additional briefing. They could do that today, and that would be a one-line too, right? I mean, that would be a one-line... Oh, they said we want additional briefing on this issue.

It could be literally a sentence. Yeah, and what about opening it up to more amicus? They could do that too, although they have a lot of amicus, what appears... So they're just like allowing everything to be filed, right?

I think, right now, they haven't granted the amicus participation yet. I don't think they will deny it. I think what you're going to see... I do think there will be some type of opinion here.

I don't know that for a fact. I think it's going to be very soon. When I say very soon, it could be while we're on the air. It could be tomorrow or Sunday.

But the electoral college meets on Monday. Is there a time? Noon?

Noon, I think. I don't see how it goes past then. No, I mean, even though the court has said, the late Justice Ginsburg, that when they're considering things, they really look at January 6th, which is when Congress certifies those electoral votes. But to make matters less confusing, I think if the court can do whatever on either side, if they can, they would try to do it before Monday. But I don't think they would say they have to if they thought they needed to hear oral arguments in this case, or if they needed additional briefing on a specific question that came up in the case. But I do want to remind everybody, because I think it's so important, people listen to this, we got this all the way to the highest court in the land.

The briefings are there. The state's basically evenly divided in the country on what side they're on when it comes to this matter. This is a case that we talked about that can become outcome-determinative. When we say that, though, it can be outcome-determinative for President Trump, it can also become outcome-determinative for Vice President Joe Biden. Because, yes, there's some other legal cases out there, not all have been dismissed, not all have been, not all are over, but this was the big one that got, this is the big one that got to the court that could be outcome-determinative based off its decision. Yet, I always want to remind people, this is the court, the ultimate court of last resort is the Supreme Court, and most of the time they don't even take up the cases. In this original jurisdiction situation, it's a little bit different, so you've got more briefing on it than you usually would, and more interest, obviously, because it's state versus state. But it is, Dad, as you said, it is an uphill battle to convince the court in writing to invalidate, which is what they would have to do, the election results for a Presidential election in four states.

That's a big ask. So, you know, while I am going to, you fight till, you know, you said something the other day, you don't leave the field while the clock is still running. No, the clock's running.

The clock is still running. So what we did, as we've discussed here, we've given you the analysis of all the briefs that have been filed, all the legal action that has been taken, and now what we're saying is that it really is up to the court. And there's a lot of different ways it could go. I mean, they could do this. They could say this is a political question, we're not going to address it. The legislatures can. Now, then the question would be, any legislature is going to do anything different in a, you know that process, in 48 hours on their slate of electors. Yeah, well, I think that if they are told by the Supreme Court that their election was illegal, this was picked up by some reporters yesterday, these state legislators who previously made statements in the past that we're going to abide by the results.

Well, if the Supreme Court comes out and said your results were illegal, you conducted the election unconstitutionally and you violated the rules, I think that changes how they view it. Now, there is a stopgap there to protection, that if those state legislatures cannot figure this out, it would go to Congress, that favors President Trump. Also, because the House, state delegations, so it's not by who controls the House, it's by who controls the most state delegations. Republicans control the majority, 27 to 22, with two states tied. So, I mean, this is why it's so important for all of you to understand just how this could turn out. It would not be the Supreme Court, if they went in the Texas favor, giving it to Donald Trump, or taking away from Joe Biden.

It would be first giving it to the states to figure out, and if they can't do it, the Constitution provides for Congress to do that. So, that is where we are, we're going to continue to take your questions, take a lot of those, we come back from this break, we're in a matching challenge right now at the ACLJ, we're fighting hard, double the impact of your donation. And subscribe, if you're on YouTube or Facebook, subscribe and hit the bell button so you can keep updated with us.

Yeah, especially on YouTube, that bell button is important. 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, 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. But 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. Welcome back to Jay Sekio Live. I was on Newsmax this morning explaining this briefly for their audience. But on our broadcast, we're able to get into more details for you. But I encourage you, if you're watching on Facebook or on YouTube, share this. If YouTube, we've only been opened up really the last month and the viewership is very high there, subscribe to the official ACLJ YouTube page. And when you do that, right next to subscribe, there's a bell. If you click that bell when you subscribe, you'll get notifications like when this radio broadcast goes live. And if we come back later today, if the Supreme Court were to issue something, let's say an hour after we're off the air, we'd still come back into the studio and you would get the notification. Facebook as well, you can sign up for those notifications as well. We know you do that in our Facebook audience as well.

Periscope audience on Twitter would see it on Twitter that we were back on and on Parler and places like that. But because the YouTube, this is new for the broadcast, I encourage you to subscribe and click the bell. The bell is so important because you'll then know when we've got something new up.

And especially if we're coming back to you live with something this important. I want to go to the phones, 1-800-684-3110, that's 1-800-684-3110. Let's go to Janice at Washington State Online for an interesting question. Hey, Janice, you're on the air. Yeah, thanks for taking my call.

We appreciate everything you guys are doing. So my question is this. My understanding is that there are currently two states out of our 50 that split their electoral votes rather than winner take all. So if the Supreme Court decides to have these four states in this litigation, if they send it back to these four states' legislative branches to make the decision about the electoral votes, can any one of these four states split their electoral votes? For example, could a state give 60% of their electoral votes to Trump and 40% to Biden? No, that, Janice, is a great question, a really great question. And make a great law school question, actually, Professor Husheson, I will save you, you know, use that one day.

But it's a great question. But no, especially these four states, it's winner take all. So these aren't allocated states. So they can't change the legislation by this.

All the court could do, if they ruled in favor of Texas, would say go back to the state legislature and make a decision that the legislature makes to appoint the slate of electors. That's it. That's as far as they could go. Yeah, I mean, so, again, I think... There's nothing else they can, that's it.

I mean, you've got to understand, it's very, in one sense, it's a very narrow case. That's why this is not, it's outcome-determinative because the number of electors at stake are outcome-determinative. But it's not going to say Donald Trump's the winner or, you know, or Joe Biden's the winner.

By the way, Bush versus Gore didn't do that either, but it was outcome-determinative. So that's important. We got a couple superchats that came in on YouTube. Yeah.

Let me take a couple of those. Can you point us to where we can follow along with the situation with the Supreme Court? That's a great question.

Look, you can go to the Supreme Court website, enter docket entry, and it's case 22-0155. But they just post motions and you can then, like... If something happens, we will let you know, which is another reason if you're on our social media platforms. Even if you're listening by radio right now, you should go onto your computer and log onto either Facebook, YouTube, Rumble, Instagram, whatever it is, and subscribe.

And there's a lot of you on right now. Just subscribe and we will come to you if there's an announcement about the case. But you can follow it. You can follow the docket, but that's not always so easy. Well, another superchat was, if the 10th Amendment is not an issue of the following, is it possible the court could opine in part of Pennsylvania, Michigan, Georgia, Wisconsin on 10th Amendment state rights ground?

Nope, not raised. And I will also say, could the Supreme Court rule that since the legislatures didn't overrule governors and secretary of states, mail-in ballot changes, that this decision goes directly to Congress? Okay, let's explain how it actually ends up, if it were to end up in Congress. Because there is a provision in the Constitution that sets that up. Yeah, the way that that would work is if this case were to be remanded to the legislatures for their Presidential electors to be picked pursuant to the Constitution, the Electors' Clause, and 3 U.S.C.

Section 2. That is, if it went back to the legislatures, and the legislatures could not reach a number, neither candidate or any candidate could not reach 270 electoral votes, that's what you have to have. If that doesn't happen, then the Constitution, Amendment 12, provides that the election of the President takes place in the House of Representatives. Now, in the House of Representatives, each state gets one vote.

It's not 435 votes. All the representatives don't vote. So what would happen is you vote by delegation. The Republicans currently have the majority in 27 delegations, the Democrats in 22 delegations. Those delegations meet, and they decide how to cast the vote of the state in question.

Georgia, Alabama, Mississippi, New York, Michigan, whatever it is. And then whoever gets the majority of the votes is elected the President. The Senate elects the vice President. The Senate elects the vice President.

That's the procedure that's followed. With James writing in about that, you know, these electors, if they are, if SCOTUS rules in Texas favor, and electors are still chosen based on the results of the election, what has Texas gained? Shouldn't electors be chosen independently from the election results? And this, again, the Supreme Court will leave it up to the states, Harry, to decide the electors. What I have said is that even those state legislatures, these are all Republican, that were not going to do this on their own, even though they could, because they had the power to declare that the elections were held illegally in their states and thus seat their own electors. They could go back and say, no, we're still going to abide by the election, even though the Supreme Court said it was an illegal election.

Precisely. So one of the issues raised even by the state of Texas was whether or not the state legislative bodies ratified the non-legislative decisions taken by, let's say, the secretary of the state of Michigan or Pennsylvania. They could, in fact, do that. The state legislative bodies could, for instance, ratify the certification, the current certification, including illegal votes, arguably, within their state. So it's up to the state legislative body.

They have discretion. They could select an entirely new slate of electors. They could decide not to send a delegation to Congress. And that then returns us to the scenario that Andy so excellently explained. So all of that is set forth in the Constitution for a reason. The founders had a vision of what could happen. Then there were some amendments to bring up other scenarios. So the Supreme Court's dealing with a template.

The template's called the U.S. Constitution. There are arguments on both sides. Those arguments have been made. There's not been oral arguments yet. The court could order that for tomorrow.

They're not bound by a Monday through Wednesday or Monday through Friday schedule. Or they could just decide the case. So we need to be prepared. We've always said this is a real uphill battle. But I think this is the last real case. That's my view. This is the last real case. Hey, we encourage you to support the work of the ACLJ.

Jordan, I'll tell you how. Yeah, ACLJ.org, we have a matching challenge right now. That means that we have a group of donors that have said whatever donations come through in the month of December to the American Center for Law and Justice will match all of those donations. So you double the impact of your donation at ACLJ.org. That's ACLJ.org.

It supports all of the legal work we do, the government affairs work we do, our international work, and it's the reason why we can bring you this broadcast and television broadcast. Donate online. Double your impact at 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. Live from Washington, D.C., Jay Sekulow Live. And now your host, Jordan Sekulow.

So we've got a super chat coming in from Charlie from the YouTube. So what happens on December 14th this Monday when the Electoral College convenes if there isn't a Supreme Court decision? I think it's highly unlikely there's not a Supreme Court decision unless they go to oral arguments and that would kind of put that on pause. I mean, really, that's not determinative. That's statute.

That's not the Constitution. Let me tell you what I think. Let's explain this. First of all, if you're on any of our social media platforms, this would be a great time to share this feed because I think we need to explain the outcomes here and what could happen and what could not happen. I think we're at that point in this case because everything has been submitted.

So if you're on Facebook, YouTube, Rumble, Periscope, wherever you are, share it with your friends right now and, of course, subscribe on those as well. Here's what I think. I think it's likely the Supreme Court decision does come out before Monday. In fact, I think it's likely that the Supreme Court decision comes out this weekend.

It may even come out today. There are really two ways, three ways this can go, and then I'm going to get everybody's comment. Well, let's do it one at a time and get the comments and then move to each one. First, there's the hurdle of jurisdiction. What does that mean? This was filed as an original jurisdiction case. That means it did not originate in a district court. It did not originate in the court of appeals. It originated at the Supreme Court. Two justices, Alito and Thomas, view that as mandatory. In other words, when you file a case that is caption 22-0155, O being for original jurisdiction, the court must hear it. But those are the only two that have said that publicly in a dissent that they had in a case involving California and Arizona. The first issue was getting the case docketed.

It was successfully docketed. The second issue in the case is will the court accept jurisdiction. So let's talk about that for a moment because that kind of resets where this is. The first order of business that the court is dealing with is will we accept jurisdiction of this complaint.

We'll go to Andy first, then I've got something for Harry. The answer is it depends because the court has the jurisprudence of the Supreme Court at this moment is that original jurisdiction is discretionary. That is to say the court can accept to hear this case or can decide not to hear this case. Only two justices have gone on record publicly, Justices Thomas and Alito, as to say that whenever an original action is filed, and that means state versus state, as we have here, we've got to hear that because those states have no other records. They can't go anywhere else. Now, those are two justices that say it's mandatory.

The rest have not opined or obviously have indicated by not joining that dissent that they take a different view. But the jurisdiction hurdle, Harry, is hurdle number one. Will the court hear the case? If they do, they do say yes, we'll hear the case. That doesn't mean you've won. That just means the case is now before them.

Precisely. And so what we have learned in law school, particularly for students that are going to engage in litigation, is that you have to successfully assert jurisdiction as a predicate for the court actually hearing the merits of the claim. So jurisdiction is not a decision on the merits. The court could argue or conclude that there is no jurisdiction here. And as Andy has pointed out, within this arena, state to state litigation, the typical view of the Supreme Court is jurisdiction is discretionary. If they say there is no jurisdiction, that is the end of the matter. That means, so we've gone through two kind of thresholds. First is the case getting docketed.

Check, that got docketed. Then there was briefing. The briefing was on filing a complaint was a motion to file the complaint. That is what is pending before the court.

And I think what we should do, let's stay live during this break because I want to explain something to our YouTube and social media audiences. When we come back, we're going to take some calls. We'll also explain what now happens if they do take jurisdiction.

Right. I mean, that's something that the media has not spent a lot of time on. What happens if the Supreme Court takes jurisdiction? Do they have to have oral arguments? Do they do this on the briefing? How much of a delay that would mean by days before you get an opinion?

Or would there be any delay? We'll take your phone calls, 1-800-684-3110. We're going to stay live during the break for our Facebook and YouTube audience. If you could support the work of the ACLJ, do so financially at ACLJ.org and double the impact of your donation. 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, Planned 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. All right, welcome back to Jay Sekio Live. We'll start getting to your phone calls in just a minute. A lot of great questions and understandably so because this is a unique case before the Supreme Court because things are happening so rapidly.

But Dad, I know as we were talking during the break, we were kind of walking through different steps. You said there's some other unique things the court could do here. Yeah, by the way, an interesting question came in from Steph on YouTube. Have any Democratic states filed to intervene in the case on behalf of Wisconsin, Georgia, Pennsylvania, and Michigan? The answer is no, and it's just amicus. Yes, on behalf of them, yes.

On behalf of Wisconsin, Georgia, Pennsylvania. Yeah, they filed amicus briefs, but they haven't moved to intervene. Not to move to intervene, but they have. Intervene would make them a part of the case, which they're arguing there should be no case. But yesterday they filed amicus briefs. They have about 20 states, all blue, two territories, and D.C. Yeah, so that has happened.

Now, let me, so the three ways we talked about. If jurisdiction is granted, and I suspect they've already probably decided that. We don't know that, but I suspect just in the timing, that's been decided. If jurisdiction is denied, it could be a very quick order. It could be, upon consideration by the court, the motions to file a bill of complaint, the motions for injunctive relief are denied. Justice Thomas and Justice Alito dissent because they think jurisdiction is mandatory. That's it.

That would be it. You know, decline jurisdiction. If they grant jurisdiction, then they could still come to a substantive decision that says no, or a decision that says it goes back to the state legislature. Or could they write an opinion that says, we're not going to decide this. We've taken jurisdiction, but this is more of a political kind of question, and there's a remedy available.

And if you think there's a problem, now you passed the safe harbor, so that would be interesting. The remedy would be, within the legislatures, who under the Constitution area, you were alluding to this, are the ones who decide the electors. Absolutely, and so I think then the key question is, will the members of the state legislative bodies have enough spine to actually intervene? And I think that is the key question. They had the constitutional right to intervene all along.

They have so far declined to do so. These are all Republican state legislatures, but some on very slim margins. And I think it's more likely state legislatures like that, these four, would take action if the court determined the way they conducted their elections violated the law. Yeah, I think that's right.

I think that's very fair. I think if the court doesn't go that far, maybe a little less, but if the court says, hey listen, we don't need to decide this because you can, that is a little bit of a nod to saying there were problems. I think you could read into that, but again, these legislatures have been very much balking at moving on this, unless there was a Supreme Court order saying, your election was held illegally in Georgia. You violated the law in Wisconsin. You violated the law in Michigan and in Pennsylvania.

You didn't follow the basics of the U.S. Constitution, and thus it falls to you to figure this out. I agree. Let's go to the phones. Let's go to Brian in Michigan, one of those key states. Hey Brian, you're on the air.

Hi guys, thanks so much for taking my call. Certainly the nation is praying that the court takes this and we get a good result. My question is, all of the mounting evidence that's being brought to light by Sidney and Rudy is not being heard by the lower courts. My concern is, what if it never does get to the higher court and for future elections, how does that bode for our future elections if none of these things are taken care of? Well, future elections means the legislatures of those states, like Georgia especially, Andy, need to fix their loopholes that have allowed for no verifications on mail-in balloting. There have been lawsuits on that already for this upcoming runoff election. The RNC has filed a lawsuit against Georgia to ensure that their election is held legally.

Well, that's the thing. It's up to the legislature to ensure that the statutes are enforced, and it's a political process. Look, they enter into a settlement agreement, Raffensperger, the Secretary of State, enters into a settlement agreement with Stacey Abrams and her crew to basically change what the statute in Georgia said you had to do to verify an absentee or mail-in ballot. What right did the Secretary of State of Georgia have to do that?

The statute was very clear. He had no right to do that, and that is exactly what Texas, for example, is saying is a departure from the Constitution. You violated your state law in doing something that you didn't have the right to do, thereby your electors should not be seated. You've diluted my elector, who was elected constitutionally and in accordance with state law, and therefore, you know, we need to remand this case because that's what Texas is asking for, and I'm reading the conclusion of their brief, and it's really important.

What they're asking is don't Supreme Court enjoin the defendants from certifying the Presidential electors and from having them vote in the electoral college, or if you don't do that, vacate their certification of Presidential electors and remand to the defendant's state legislatures pursuant to the statute and the electors clause. Which is actually what the Constitution mandates. Right. That's what the Constitution mandates.

Absolutely. And so I think one of the key issues throughout this entire process, and some of these issues do go back months, certainly weeks, is where were state legislative officials? They should have taken action, in my opinion, sooner, but that doesn't negate at all the state of Texas's argument here, but each and every state ought to examine the issues of election integrity, election compliance, and make sure that their secretary of state engages in conduct that is consistent with statutory analysis. And as I've said previously, if you go back to the state of Michigan, Jocelyn Benson, the secretary of the state of Michigan, issued 7.7 million ballots for mail-in purposes. That is clearly and prima facially in violation of Michigan law. Where were the state legislative officers in terms of challenging that action?

We got a super chat from James Carver. It's a great question. If the Supreme Court were to rule in Texas favor, could the individual states' legislatures subsequently choose to hold new elections prior to the January date? Which he points out, Ruth Bader Ginsburg had that view, with only those who are legal voters or participate in the November 3rd election, and obviously the people that are registered. That's a really good question, but I think that because we're past the safe harbor... That's not the relief sought by Texas. Not the relief sought by Texas, that the relief, James, would have to be if it was granted, just goes back to those four states' legislatures to select the electors.

I agree with that. With the Constitution, their state constitutions, the legislatures... No, no. Texas, nor the states that want to intervene, have tried to bring that up. There should be a new election in the state for... In fact, that's not the right remedy. The right remedy under our law is that if you go through the election and it is illegal and you find these irregularities and issues because the legislature is supposed to do it via the Constitution, Article 2, and then they don't because it's judges doing it, courts doing it, and bureaucrats doing it, and executive branch officials doing it, then the remedy is to first start and see if the legislatures can figure it out, and if they can't, Congress then figures it out.

And both of those favor President Trump, but no guarantees, even if the court sides completely 100% with Texas. Yeah. Let me say this to our radio audience and to our social media audience as well that are watching on various platforms. We're going to obviously monitor this very closely during the rest of the day and even through the weekend. So we can't go live on our radio stations this weekend because we don't have airtime. What we can do, however, is if you're listening on radio right now, let me encourage you, when you're back at your home or if you're at your home now just listening on radio, sign on to our social media platforms, YouTube, Facebook, we're delayed and Rumble's not live, but you can go to Rumble, Instagram, wherever it might be, Twitter, of course, which I guess is Periscope now. But also you can go to our YouTube page, hit subscribe.

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Same on Facebook as well. We're going to be back with more. But when we go to the break, we're going to stay live with our audiences and just kind of fill you in on where we think this is headed in the moments ahead. And I say moments ahead because I think it's going to be today, tomorrow or Sunday and could well be today. So we'll be doing that back with more in a moment. Only when a society can agree that the most vulnerable and voiceless deserve to be protected.

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Give a gift today online at ACLJ.org. I'm reading your right to phone calls. Jimmy in Texas has been holding on. I appreciate that, Jimmy. You are on the air with us.

Thanks for taking my call. In 2015, there was a case in Arizona v. AIRC where the Supreme Court essentially defined legislature as any body that makes laws. I believe the Arizona State Constitution actually had a provision which allowed the people to make laws through ballot initiatives.

Therefore, the Supreme Court ruled it constitutional for the AIRC to change redistricting laws. My question is, in light of that ruling, could any of you foresee an outcome in which the Supreme Court somehow extends the definition of legislature to beyond the Congress of the defended states? The Constitution says state legislatures. It's going to be the state legislature. It's a good question, a good analysis, but clearly state legislature. So it's not going to be one of those funky Supreme Court analysis like that. The Constitution doesn't give any leeway there.

State legislatures set the rules for selecting electors and how the electors are chosen. But a good question, a really good question coming in because of all the different ways the Supreme Court interprets words, which reminds you something. Again, folks, how they interpret words can be very important in cases like this specifically. Let's go back to the phones. Rebecca in California on Line 5. Hey, Rebecca.

Hey, thank you for taking my call. So I'm in a non-determinative state, which is the state of California, and unfortunately our governor sent out thousands of mail-in ballots violating our own Constitution. Is there a probability that the Supreme Court, based on the Texas case that's been filed since there's been no amicus brief filed by the state of California or a case adjoining California to this suit filed by Kim Paxton, is there a potential that the Supreme Court could rule and say any state within the union that didn't follow legislative process and violated their own law would become a party to and based on whatever they decide? Not retroactively, but if the court says you've got to follow state laws as you deal with mail-in ballots, in other words, there's not a pandemic exception to the Constitution, that would apply to all 50 states but not retroactively. But California did file, Rebecca, a brief in opposition. So you know your state well, a liberal state with a liberal statewide government, they filed an amicus brief in opposition to the state of Texas, so they actually took the opposing view and did something proactively in this case before the U.S. Supreme Court. Back to the phones, we go Chris in Nevada online for, hey Chris, welcome to JCQ Live. Hey, thanks for taking my call.

You're on the air. Quick question, I wanted to know if the Texas case doesn't go, doesn't get heard or doesn't go the way that the Texas wants and they don't get the release they're looking for, what is the next step for the states? Is there anything in the Constitution that says that all states must participate in this election? Knowing what they know, could they back out, not send their electors, just is there any other... Andy's addressed that before.

They're not, if they, if there were some disagreement where they could not confirm the slate, sure. Yeah, don't send your electors. Not likely to happen, but if they don't want to send their electors, it's up to the legislature. If it's remanded to the legislatures of the states as Texas is asking for, the states can say, well, we don't want to send electors, period, at the end, and then whatever that state is won't participate in it. That would mean it would go to the Congress to decide the presidency.

If enough of the states that are at issue here could not come together with enough electoral votes to make one of these two men President of the United States in the next four years. Back to the phones we go, we're trying to take as many calls as we can. Let's go to Lisa in Michigan on Line 6, another one of these important states. Hey, Lisa.

Hey, thanks for taking my call. My question is, once this is all said and done, regardless of the outcome, how do you see this affecting future elections? Bottom line, are we going to have to go through this ever again, or will the Supreme Court's decision to behavior on this set precedent?

Well, if it's a one-liner from the Supreme Court that says we're not going to hear this, you know, then yeah, we could go through this again. So if they don't make any determination about whether or not there were violations of the law here, whether they were substantive enough to invalidate the election, or they weren't substantive enough to invalidate the election, if they don't get to that kind of analysis, then yeah, we could see this happening all over again. I think that for the left, for Democrats, they found something that works very well for them, mail-in ballots. If they can figure out a way to get mail-in balloting as kind of universal in at least the blue states or states where they control the near even purple states, I think they see a path to winning about every single Presidential election moving forward.

And that's why even the Georgia races entering runoffs, especially Purdue's race, which he won, but was not by not a percent. And so I think that's one of the concerns is that if it's not just the pandemic, it's that if you allow mail-in voting to become the norm, and some states already have, and the Supreme Court hasn't said that's unconstitutional because the state legislatures enacted. Now, they enacted it in a very legal way when they did it.

Oh, the other ones, yes. Ones like Oregon, who have been doing it for years. Arizona. Arizona. They've been doing it for years. Florida, too. They know what they're doing. But again, I think that, no, if you don't get a full opinion from the court... No precedent. No guarantee this isn't what we're back facing again in four years or even two years with the midterm elections. Someone asked this quickly.

This is Sarah on YouTube. Why can't there be a lawsuit to challenge unconstitutional ballots? Well, there have been.

And she also asked about counted after midnight on election day. There have been all those lawsuits. A lot of those lawsuits have been litigated. They just have not been litigated successfully. Yeah, I mean, if the Supreme Court doesn't decide to take this up or goes against the Texas position, there are lawsuits out there, Dad, but none of them are outcome determinants. I don't see an individual suit here changing the case. I think this is... Because they're state lawsuits. So let's say something happened in Michigan because there's a legitimate lawsuit up there and they, you know, threw it back to the legislature. Well, that doesn't get anybody.

That doesn't take Joe Biden under 270 and it doesn't put Trump over 270. So I think this is, you know, look, will creative lawyers maybe come up with something? I don't know. Maybe they will. But I think this is it, legally speaking. I think this is it. Yeah, yeah. That's my view. I agree.

I think this is the case. And folks, you need to, let me say this. You need to be prepared. Yep.

Okay. Look, the lawyers have fought hard. The President has fought hard. The various states on both sides have come in and fought very aggressively back and forth.

So this was, nobody left the field here. But at the end of the day, we are a country of laws. So if the Supreme Court rules, even if you disagree with it, it is the law of the land. And that's the rule of law. Yep.

Yeah. And I think, yeah, everybody should be prepared. I mean, when you're at the Supreme Court, you've got to be prepared to lose. I mean, that's the honest truth because it's a divided court. On these kind of issues, you have no idea where individual justice will go. It's not just a partisan kind of case where you can say, well, they were nominated by this judge, this and this and that.

This super chat from James, I think we'll finish with that. He said, Harry said yesterday that SCOTUS will either choose to side with the Constitution and the role of the legislatures or implicitly side with the executive branch. Would the latter result in a permanent kind of neutering of all legislatures in perpetuity?

Well, no, not really. I think at the end of the day, one lesson is that the voters should take note of this case and this issue and elect members of state legislatures with spine. Yes.

That is something that voters can do going forward. Folks, let me encourage you on our social media platforms, if you're there right now, subscribe. If you're on YouTube, subscribe and hit the bell. If you're on Facebook, follow, like and hit the notification bar.

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Whisper: medium.en / 2024-01-16 00:06:03 / 2024-01-16 00:29:17 / 23

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