In one of the most potent lawsuits to reach the US Supreme Court, the Amistad Project has filed a lawsuit on a point of constitutional order that would force the President of the Senate – Vice President Mike Pence – to remand the Electoral College votes of five states to their respective legislatures for certification.
The Thomas More Society’s Amistad Project filed a lawsuit on December 22, 2020, claiming that a several federal and state laws, some enacted under the guise of COVID protection, had unconstitutionally and illegally delegated the authority of the various state legislatures to certify Electoral College votes to state executive branches.
The Amistad Project is arguing that the state legislatures of Pennsylvania, Michigan, Wisconsin, Georgia, and Arizona – by virtue of this unconstitutional transfer of power, were prohibited from exercising their rightful power under the US Constitution to certify the presidential Electors’ votes cast on December 14, 2020, in their respective states.
Under Article II of the US Constitution, presidential Electors must be appointed by each state in the manner prescribed by the state’s legislature:
“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…”
There is plenty of time left to resolve these issues before the constitutionally-imposed deadline of noon on Jan 20.
Congress needs to postpone its tally of the Electoral College votes until the legislatures of those states have a chance to convene & sort out the irregularities.
— Phillip Kline (@PhillDKline) December 22, 2020
The lawsuit charges that Article II prohibits state legislatures from delegating their power to state executive branch officials in any capacity as there is no authority granted to delegate the power.
“There are textual and structural arguments for these state statutes being unconstitutional,” the lawsuit reads, adding that the offending state laws are an “unconstitutional delegation of the state legislative prerogatives of post-election certifications of Presidential votes and of Presidential electors.”
The lawsuit also contends that some of the state legislatures in question, many of which are adjourned until January 2021, are being deliberately prevented from meeting – for partisan political purposes – to perform their post-election certification duty per the US Constitution.
The Amistad Project cited governors in at least two states who refuse to call a special session – per state constitutional stricture – so that the legislatures can legally perform their constitutional mandates.
“The very body that is responsible for how these electors are selected, can’t even meet after the election, up through January. So that’s unconstitutional, in that it’s a delegation of authority to a governor of a legislative function. That is not allowed,” Phil Kline, director of the Amistad Project, told reporters.
The lawsuit names as defendants Vice President Mike Pence, both houses of Congress, and various executive branch and legislative officials from the five states named in the suit.
Legislatures in states such as Pennsylvania closed before this month’s planned vote to certify electors.
State legislatures have the constitutional duty to approve the electors and should reopen to do so instead of letting the presidential election results stand.
— Phillip Kline (@PhillDKline) December 24, 2020
The relief the Amistad Project seeks from the US Supreme Court is for the High Court to declare sections of the federal and state laws that empower the several state executives with post-election certification authority as unconstitutional.
The lawsuit also seeks to prevent Vice President Mike Pence, who will be presiding over the counting the Electoral College votes, and Congress from including the votes from Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin until their individual state legislatures are able to meet and – independent of their states’ executive branches – certify the votes.
A call from National File reporters to Vice President Pence’s chief of staff ended abruptly when the subject of the Vice President’s adherence to his constitutional duties was broached.
To date, his office has not issued a declarative statement as to whether he will execute his constitutional duty to protect the legitimacy of the Electoral College vote.