Season 4 Episode 21 GIF by The Simpsons

Friends, we've found the craziest lawsuit this election cycle. We may have found the craziest lawsuit of any election cycle. The Thomas More Society, an anti-abortion "public interest law firm," is suing THE ELECTORAL COLLEGE to overturn the results of the presidential election.

"But, like, how????" you are probably wondering. "The Electoral College isn't a person or company. How do you sue a random day in December when electors meet in all fifty state capitals and cast their ballots for the presidency? Where do you even send a process server to let Mr. Electoral College know he's being sued?"

Well ....

Ah, yes, you pretend that the Electoral College is a real thing and it lives at Congress, both houses of which you have also sued. Along with Vice President Pence, and various elected officials in Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin. In the US District Court for the District of Columbia. Alleging that every election since 1860 has been illegal.

YEEHAW, saddle up, kids!


See, Article II of the Constitution says "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress." And thus, under a "non-delegation doctrine" dreamed up during an absinthe bender at ye olde Thomas More (allegedly!), it is illegal for state legislatures to delegate any election power to other state officials. So, unless the election is "certified" by the state legislature and not the governor, none of its electoral college votes "count."

Based on this legal background, Plaintiffs claim, under the Article II, that if there is no state legislative post-election certifications of Presidential votes and of Presidential electors in the Defendant States, then those Defendant States' Presidential electors votes, not so certified, cannot be counted by the federal Defendants for President and Vice President under Article II.

Every state in the union has interpreted "In such manner as the the Legislatures thereof may direct," as permitting legislatures to codify election procedures and deputize governors and election officials to carry them out. And those laws and illegal provisions of state constitutions have to go, too!

Further, the Defendant States have legally acquiesced to the federal laws by enacting statutes transferring post-election certification from the state legislatures to state executive branch officials: Ariz. Rev. Stat. § 16-212 (B) (Arizona Secretary of State), Ga. Code Ann. § 21-2-499 (B) (Georgia Secretary of State and Governor), Mich. Comp. Laws Ann. § 168.46 (Michigan State Board of Canvassers and Governor), Wis. Stat. § 7.70 (5) (b) (Wisconsin Elections Commission); and 25 Pa. Cons. Stat. § 3166 (Secretary of Commonwealth and Governor). These state laws also violate Article II which establishes the state legislative prerogative to post-election certification of Presidential votes and of Presidential electors.

Exactly zero states in US America convene their legislatures to certify votes to the Electoral College. And yet those Thomas More weirdos argue that the five defendant states' failure to certify violates the plaintiffs' Equal Protection rights by putting them at a disadvantage compared to the rest of the country.

But wait, there's more! Because if only the state legislature has the power to set the rules for elections, then no court, state or federal, has jurisdiction to hear election challenges.

The Presidential post-election court proceedings—like the 2000 Bush v. Gore litigation, the 2020 Texas original action and the 2020 thirty post-election lawsuits in Defendant States—are in constitutional error and unnecessarily politicize the federal and state courts—and in a nationwide way. Under Article II, all of those Presidential post-election cases should have been dismissed for lack of jurisdiction—and the plaintiffs should have been instructed to file their Presidential election contests with their respective state legislatures. [Emphasis added.]

Do you have any idea how many times I had to read that passage to make it make sense? Many times!

What lawyer is actually arguing that the appropriate venue for election lawsuits is the state legislature and the federal courts should just butt out already?

Erick Kaardal? Hmmmm, does that name sound familiar? Oh, right, he's the jackass lawyer who sued on Nov. 23 to get the courts to toss out every ballot in Wisconsin, only to get unceremoniously ejected by the state's Supreme Court. So apparently the belief that state legislatures are the only appropriate venue to argue about election law is a recent thing — a road to Damascus conversion, if you will. Marc Elias he ain't.

Anyway, having established that courts are forbidden from determining whether there has been a violation of state election law, Mr. Kaardal goes on to lay out 75 pages of alleged violations of state election law. Which the court has no jurisdiction to hear, according to Erick Kaardal.

Now, I will admit, I did not read the entire recitation of every bogus fraud claim culled by Kaardal from every other dead-end suit filed in the past six weeks. I have already read enough of these claims to see the word "Antrim" and know I can keep scrolling. Ditto for Pennsylvania ballot cure, and signature match, and Mark Zuckerberg, and Braynard Declaration, and TCF Center, and Ramsland affidavit, and "urban counting centers." Not today, Satan! All of this shit has been repudiated, as has the nonsensical claim that individual voters have standing to sue to enforce state election laws.

See also, Eleventh Amendment.

Let's just skip to the proposed order and see what it is they want, shall we?

The Defendants are enjoined from certifying Presidential electors who have not received state legislative post-election certification and from counting Presidential elector votes from Presidential electors who have not received state legislative post-election certification for the election of President and Vice President.

So the plaintiffs want a federal court to order Mike Pence and Nancy Pelosi and Mitch McConnell not to accept any Electoral College votes that haven't been blessed by a state legislature — which would be all of them — in defiance of the Twelfth Amendment's specific instruction that "The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;--the person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of electors appointed."

Cool, cool. Anything else?

That would be the point in last night's excellent thread livetweeting his read of this case that broke attorney Mike Dunford.

Anyway, this case is bullshit. But the purest, most amazing bullshit — a turd you must look upon in wonder. Because the Electoral College is UNLEGAL, and state election laws are UNLEGAL, and Bush v. Gore is UNLEGAL, and state constitutions are UNLEGAL, and counting the votes is UNLEGAL and the only thing that is legal is to make Donald Trump president for life.

Okay, ready for the punchline?

Yeah, Judge James Boasberg is going to get right on that, fellas. Just as soon as you prove you successfully served THE ELECTORAL COLLEGE. Lotsa luck with that one!

LOL forever.

[Wisconsin Voters Alliance v. Pence docket via Court Listener]

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Liz Dye

Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.

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