2016 Election Challenge filed December 2016

This Amended complaint though was filed in February, after learning new information at the Inauguration. But it makes great points about the way the system works… and is as entertaining as laws and morals philosophy of the society can be. There is far too much uncertainty in our election systems ; there are so many different ways the apportionment and letter to the law of the Constitution which is being systemically ignored every day,  the tough legal compromise work, not being done. That we categorically need a federal multi billion for services and broad elections trainings in election quality assurance . There are too many who spread propaganda, and also a great deal of danger of systems corrupting to not have the minds of the public sharpened for necessary

 

Defendants

 

Mitch McConnell

317 Russell Senate Office Building

Washington, D.C. 20510

Majority Leader of United States Senate;

 

Vice President Joseph Biden

1600 Pennsylvania Ave.

Washington, D.C. 20500

The President of U.S. Senate;

 

Orrin Hatch

104 Hart Senate Office Building

Washington, D.C. 20510

President Pro Tempore of U.S. Senate;

 

Charles Schumer

322 Hart Senate Office Building

Washington, D.C. 20510

Minority Leader Of U.S. Senate;

 

Paul Ryan

1233 Longworth House Office Building

Washington, D.C. 20515

Speaker of United States House of Representatives;

 

Nancy Pelosi,

233 Cannon House Office Building

Washington, D.C. 20515

Minority Leader of                                                                                                                                    United States House of Representatives;

 

 

 

 

A Voting Rights Title 42 U.S.C.A. 1983 Action;                                                                                                                Notice of Motion and Motion for Attorneys’ Fees

As a Prevailing Party under 42 U.S.C. 1988

A Title 42 U.S.C.A. 1988 Request for Attorneys Fees

as Prevailing Party Under Declaratory Relief or Such

Provision of Law that this Court Deems Just to

Award Attorneys Fees;

 

Donald Trump and Mike Pence received 256

Electoral votes. Fifty [50] of 306 Electoral votes                                received by Trump and Pence were void, ab initio,

And were cast in states by Electoral College

Electors, who were not qualified electors,                                                                       due to violations of  state election law, prohibiting dual emoluments from government employment, meaning electors are prohibited from having

part time or full time government employment.

Requiring valid voting                                                           registration within the Congressional District which

each elector in the Electoral College represents.

Some Electoral College electors were elected as electors, who were not registered to vote at all, and or who were not qualified to register to vote, Thus the voter registration of the elector was void as a matter of law, so the Elector’s electoral vote cast was null and void, ab initio as a matter of law.

Plaintiff asks this court to invalidate and decertify these 50 null and void electoral votes that were counted by U.S. Senate as valid, by a writ of mandamus or appropriate writ directed at U.S. Senate to do so. Plaintiff asks this Court to order President Donald Trump and Vice President Mike Pence removed from office, and in accordance with Title 3 U.S.C.A. Section 19 ( c ) (1), replaced by Speaker of the House of Representatives, Paul Ryan, as President Pro Tempore of the United States. Plaintiff asks this Court to hold an evidence hearing at which Plaintiff will present evidence

As adequate legal proof, that such 50 electoral votes are null and void. Plaintiff asks this court to hold such hearing by an appropriate motion.

Plaintiff asks this Court to order a new presidential primary election and a new presidential general election to be quickly held to allow voters to vote

to fill the vacant offices of President and Vice President,  because the preceding election was tainted by clear discriminatory intent, and a broad 18 USC 241 and 242 conspiracy

 

 

 

 

Table of Contents

 

Questions                                                                                                                                         5

Introduction                                                                                                                                     6

Standing                                                                                                                                            9

Jurisdiction                                                                                                                                     13

First Claim for Relief                                                                                                                       14

Second Claim for Relief                                                                                                                  15

Third Claim for Relief                                                                                                                     18

Prayer for Relief                                                                                                                             23

Exhibit A- List of disqualified electors, and the state statutes disqualifying them                     23

Exhibit B By state, percentages of disenfranchised voters                                                          24

Exhibit B-1 Change in Disenfranchised Voters over time                                                             25

Exhibit C- Order to show cause to avoid a contempt of court                                                     26

Exhibit D- Discriminatory Intent                                                                                                    27

Exhibit E- Crosscheck list sample                                                                                                   32

 

Questions

  1. Are the Federal courts empowered to, in response to a complaint make judgements on the legal execution of state and federal laws and processes, and overrule the actions of other branches, even in elections?
  2. Are legal elections of paramount importance to the proper functioning of the American government?
  3. What is the minimum acceptable standard for counting votes in a national election?
  4. Does the right to vote imply a right to have the vote secure, counted, and placed into an easily auditable system? If the system is not secured, was there an election?
  5. Do rules, a method for enforcing those rules, and a regular process of externally auditing the enforcement as well as the rules themselves, contribute significantly to the security of valuables (money, votes)?
  6. At what point does a cross state, policy program with at a minimum of 8 court decisions against, in 2 years, become an 18 USC 241, 242 criminal conspiracy to deny votes?
  7. What expectation of transparency do voters have?
  8. Is it really, expressly legal, to be spending taxpayer time, and dollars, to promote a group affiliation, while in office? Is this not campaigning on the job or party over country?

Introduction

Over the course of recent Constitutional amendment history from the Civil War, until today, the vast majority involve either voting ( 12th,14th ,15th , 17th, 19th, 23rd , 24th  and 26th) or  Presidential terms (20th, 22nd, and 25th )and succession in a consistent path; thus, highest priority of our laws must be said to be held by:

 

  1. Elections, and broadening the electorate
  2. Making sure that there is the right person in the office of the President at all times.

 

The current of the Constitutional doctrines must be seen as flowing toward a  broadening of the electorate, to be ever more inclusive, ever less tolerant of attempts to prevent or restrict voting, and ever more careful that the White House occupant has achieved that lofty position through a legitimate, tried and tested methodology. Elections themselves must be kept as sacrosanct as possible, since to maintain separation of powers as well as good governance, most relief should, in ideal circumstances be addressed through the workings of Congress

Given the magnitude of these doctrines, it would seem to be self evident, that any and all measures that would normally be considered extraordinary, must be considered routine in terms of assuring the maximal efficacy of the process.

 

The precedent of Bush v Gore, clearly demonstrates the role of the Courts in Presidential elections, as indeed, supreme.  Toney v White The management of the election processes, and any issues arising, especially of a racial nature must be examined at great length by the court system. In this case, the courts owe special responsibility in the wake of the surprising decision to gut the Voting Rights  Shelby vs Holder to manage and monitor the results of their action.

 

In the complaint here, there is clear, and compelling evidence of fraud in multiple states in the electoral voting process, as likely an open and shut, cut and dried example of disregard for state and federal laws and statues as can be imagined. 50 of the presidential electors, representing 20+ million American voters, were as legally unqualified to vote, and had the same effect as 20 million non citizens. This cannot be ignored, by a government of laws; it is certainly a technicality, created by law, as is the electoral college itself.

 

The issues, pursuant to the Guarantee of a republican government, must be addressed, requiring a re-certification of the election, and vacating, the current Presidency. However, when there is such a blatant case of unlawful actions in one aspect of election law,  demonstrating a flagrant disregard for the laws and processes to benefit of one particular group in one area of a complex process, common sense dictates a look at other, less obvious sections, and finds a consistently criminal intent to deny basic American rights, suppress the vote, and again, and again, we see, disproportionately primarily to minorities baked deeply into Republican party policies, in state after state.

Since Shelby vs Holder, when the Supreme Court struck down part of the Voting Rights act as “no longer necessary”. Recent times have proved other wise, as attempts to restrict voting produced federal court decisions in 8 different states North Dakota, Ohio, Pennsylvania, Kansas, Michigan, Virginia, Florida, North Carolina, Texas striking down laws attempting to restrict the numbers of voters with discriminatory effect,  and 2 meeting the high judicial  bar of clear discriminatory intent– (Ohio, and Kansas cases likely would have made the same threshold, but were settled)the intent to keep black Americans from voting and all of these cases originated with the same group- the Republican party,  likely with it’s associated partner in crime, ALEC.  The stated reason- voter fraud, has often enough been debunked by their own statements, in the media. Please see exhibit D,  in which statements by members the Republican party of several states clearly refer to an intent to suppress the vote, and in certain cases, specifically, the black vote.  This is in no way meant to be a partisan attack- this is expressly about troublesome violations of the law in fact.

 

The simple fact though, is that a very public, and very illegal campaign has been waged against the right to vote, and if there were a minimum of 8 actions stopped in federal civil court, there are, under the surface far more. Post or pre election judicial relief should not be the responsibility of the people to assert and check, changes to systems of public interest should be made only with well defined standards of public notice, and open to public scrutiny on short notice request.  The extraordinary and disgraceful period since the VRA dismantling has conclusively shown, and there is no reason, to limit it to the states with a history of racial discrimination.

 

Plaintiff asserts:

That according US federal and State laws, there was no winner in the 2016 presidential election, because 40+ Presidential electors were  unqualified by US federal and state laws to decide the Presidency, as double office holders, or out of district electors.

 

This reduces the total number of electoral votes won by any candidate to under the Constitutionally mandated 270.

 

Plaintiff asks for a Preliminary injunction from any further actions by the unelected Presidential candidate, and that all actions taken, including nominations, etc. be nullified.

 

Plaintiff asserts, and can, and will prove at trial, with the help of expert witnesses that on several counts, factors that must be considered to assure that the election system itself,  requires a level of precision the system is unable to currently provide.

 

Plaintiff asserts that knowingly attempting to limit the votes of citizens without cause is a crime.

 

Plaintiff asserts, and will, with the help of court aided Discovery, demonstrate that the election voter rolls were purged, in a manner that consistently demonstrates clear ethnic biases, and in a manner that muddies any elections results from it.

 

Plaintiff asserts that, at trial, the preponderance of evidence will clearly demonstrate the existence of a criminal cross-state conspiracy to deny Americans- black, Hispanic and Asian, of their rights based upon their race.

 

 

Standing

 

I claim standing based on being a voting citizen of the United States of America, whose broad standing in voters rights cases has been established, from Baker V Carr, Wesberry v Sanders.

 

In this case; the sheer gravity of having an unelected or compromised head of state; possibilities for war, foreign entanglements, the dismantling of the systems of record, should establish the standing of any citizen a case with reasonable Constitutional merit self evident. In this particular instance, potential harm can be inferred specifically on the sheer power and magnitude of the Presidency, and can be felt from the lack of domestic tranquility; there have been the largest protests, ever, and every, single day, since the inauguration, now, three weeks later.  The idea that  the legality a head of state’s election, along with the heads of every major department of the US federal government,  is not the concern of the citizens of the country, flies in the face of not only American democratic republic, but the very concept of democratic republics in general, as without clear, and fair election processes, no one can be said to have the right to vote.

 

 

That a citizen, whose Supreme Law, begins with the phrase, We the People, one whose beginnings come from throwing off tyrannical government, should be told, the integrity election processes which control trillions of dollars, the legislative direction of the country,  is not their business  is more reminiscent of

 

The Wizard of Oz, Frank Baum

 

Pay no attention to the man behind the curtain,”

 

Than-

 

ex parte Yarbrough, 110 US 651 – Supreme Court 1884

 

It is as essential to the successful working of this government that the great organisms of its executive and legislative branches should be the free choice of the people as that the original form of it should be so. In absolute governments, where the monarch is the source of all power, it is still held to be important that the exercise of that power shall be free from the influence of extraneous violence and internal corruption.

In a republican government, like ours, where political power is reposed in representatives of the entire body of the people, chosen at short intervals by popular elections, the temptations to control these elections by violence and by corruption is a constant source of danger.

Such has been the history of all republics, and, though ours has been comparatively free from both these evils in the past, no lover of his country can shut his eyes to the fear of future danger from both sources.

 

Further, on reapportionment; I claim additional standing as a Former resident of a state- PA, likely to receive additional representation in a reapportionment, a state which suffers from electronic voting with no paper ballot records.

 

I claim standing as a person of black heritage in America; there is clearly, a pattern of criminal discriminatory intent in denying black votes, attempts to illegally suppress the vote across multiple states in America. This pattern, which also, due to lack of apportionment adjustments, continued voter fraud, voter suppression, leads to a watering down of my vote, and a lower representation of a sub set of people to which I belong.

 

I claim standing under the Guarantee Clause of the Constitution. It is one of the few positive rights listed in the Constitution. There is a standard of saying it is non enforceable as a “political question”.  Good idea. Let’s keep the courts on non political matters like, religion in schools, desegregation, abortion, but don’t wander into controversial political topics people might be hardened against reasonable debate with, and completely outside what courts do,  like judge the definition of what a republican government is, and the duties of the government in enforcing that guarantee to the citizens of every state.  The dominant and countervailing argument is in the given name of the clause- the GUARANTEE clause. If you talk to a car salesman, and he says he guarantees a car will operate for 10 years, and you ask well, in the event of the break down, what would be the process, and he says, oh, not my department, Plaintiff makes the recommendation that you buy elsewhere, and humbly suggests a higher standard for the American Republic  It is the strongest language in the Constitution, and names the entire government, not just Congress, with the responsibility of providing a republican government, and to protect the country from external destruction, naming specifically invasion. It is one of the very few clauses that specifically invoke positive rights in the constitution, as it expressly guarantees a republican, (note the small ‘r’ republican) form of government. No representation of the public can be said to exist if the entire system cannot be counted on to properly manage elections.

 

In  Lance v Coffman,  549 U.S. 437,439 (2007) it specifically mentions voter rights as that which citizens get broad latitude for standing, and specifically mentions Baker v.Carr

 

In Baker v. Carr there were 4 plaintiffs in a voting rights action filed under the 14th Amendment of the U.S. Constitution. The U.S. Supreme Court granted the 4 plaintiffs standing and reversed the U.S. District Court and the U.S. Court of Appeals and ordered the case remanded for trial according to instructions. The 4 plaintiffs who were voters had suffered the same injury-in-fact that more than 400,000 other voters in Fulton County, Georgia had suffered, the diluting of the value of their popular votes for candidates to represent them in the Georgia Senate compared to voters in rural farm counties in Georgia who on  a population basis had 6 times the representation in the Georgia Senate . Clearly in the eyes of the U.S. Supreme Court, the fact that the injury-in-fact that the 4 voters, who were plaintiffs suffered, was shared with 400,000 other voters in Fulton County, Georgia, did not invalidate the standing of the 4 voters who did file a lawsuit against the state of Georgia. Only 4 voters sued as plaintiffs, the other 400,000 voters who suffered the same injury-in-fact did not sue.

 

School district of Abington v Shemp, was a case out of the Eastern District Court of PA, in which one family successfully sued for changes to mandatory religious readings in school, in a case which no more benefited their specific situation than thousands, and perhaps millions of Pennsylvania school children. However, the merits of the case- the separation of church and state, were the basis for the case, as was freedom of religion.

 

Often, it is stated that harms must be particularized; however this would leave any large group’s rights unavailable for relief or remedy. If say, Republicans in Congress passed a bill declaring that  that all people who had voted Democrat in any election would have to be branded with a red ‘x’ on their foreheads, all Democrats would lack standing to sue; since their harm was not particularized. Nor does there seem to be a well defined numerical limit to the number of people to whom particularized is defined as. How many people have to be directly affected by an ills of governmental law breaking for them to be disenfranchised of their right to sue for relief? Is millions the number, or is it 100,000? Should Flint water recipients be denied legal relief, without particularized harm differentiating them from other people in Flint? Or does the fact that some harm, any harm, of an interested party, with clear evidence of government wrongdoing constitute standing? If finding this opens the Courts up to flood gates, which then require that all government processes become fully  transparent, and fully answerable to the people of this country, this is a consequence for which I am willing to bear responsibility.

 

Frankly, the inference of Article III section 2 as requiring “injury-in-fact” is spurious at best as “Constitutional law”, completely unsupported by any text in that Article.  Rather, it must be seen for what it is. Supreme Court doctrine, primarily developed over the last century, and focused the last 40.

 

Preemption doctrine trumps standing in this case; the specific harms are not specifically mentioned in Article III, therefore it is court doctrine and cannot stop the enforcement of Constitutional doctrines.

 

The standard applied here is from In Edgar v. MITE Corp., 457 U.S. 624 (1982)the Supreme Court ruled: “A state statute is void to the extent that it actually conflicts with a valid Federal statute”. In effect, this means that a State law will be found to violate the Supremacy Clause when either of the following two conditions (or both) exist:[8]

 

  1. Compliance with both the Federal and State laws is impossible
  2. “State law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.

 

The interpreted doctrine of standing (Association of Data Processing Service Organizations v. Camp, 1970) of injury in fact, for plaintiffs having lack of standing. However in the above example, Supreme Court rulings and established in stare decisis legal processes for the US government substituted in the above example for State law, and Constitution, for Congress, as there is some legal weight to Congressional jurisdiction v state jurisdiction, none at all to Constitution v any other legal.

 

Proposed test:

In effect, this means that a court rules at any level will be found to violate the Supremacy Clause when either of the following two conditions (or both) exist:[8]

  1. Compliance with both the Constitutional and court rules is impossible
  2. Court rules stand as an obstacle to the accomplishment and execution of the full purposes and objectives of the Constitution

 

 

(Ashby vs White)Chief Justice Holt

In all other cases,” he says, “it is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit, or action at law, when ever that right is invaded.”

And afterwards, p. 109. of the same vol. he says, “I am next to consider such injuries as are cognisable by the courts of the common law. And herein I shall for the present only remark, that all possible injuries whatsoever, that did not fall within the exclusive cognisance of either the ecclesiastical, military, or maritime tribunals, are, for that very reason, within the cognisance of the common law courts of justice; for it is a settled and invariable principle in the laws of England that every right, when withheld, must have a remedy, and every injury its proper redress.”

 

(Marbury vs Madison, 1803)

The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.

 

Jurisdiction

This action is brought pursuant to the United States Constitution. It is authorized

by Article III, Section 2, which extends the federal judicial power to all cases arising in equity under the Constitution. “The identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution.” Obergefell v. Hodges, 576 U.S. ____, slip.

  1. at 10 (2015). That grant of equitable jurisdiction requires Article III courts to apply the underlying principles of the Constitution to new circumstances unforeseen by the framers, such as an election in which due diligence was not completed, and the duties of the Office of President were being executed by a person who was placed into office as a result of fraud.

An actual controversy has arisen and exists between Plaintiffs and Defendants because Defendants have through failure to address their duties- Plaintiffs in a dangerous situation, continue to infringe upon Plaintiffs’ constitutional rights, among other violations of law. Plaintiffs have no adequate remedy at law to redress the harms herein, which are of a continuing nature and which, if left unresolved, will be irreversible.

This Court has jurisdiction pursuant to 28 U.S.C. § 1331 (federal question), 28

U.S.C. § 2201 (creation of a remedy), and 28 U.S.C. § 2202 (further relief)
28 U.S. Code § 1651(all writs) as this action arises under the laws of the United States.

 

First Claim for Relief

Plaintiff attests that according to the state legislatures of several states, electors representing 40+ electoral college votes were not qualified to do so under state and federal law were void ab initio.   The enclosed packet (Exhibit A) details very specifically the state and federal codes violated.

 

Most state Constitutions are reflective of the US Constitution and Article II, section 1 is no different;

 

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: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves.

 

In most states, it is illegal to hold the office of Elector while holding another state office- nearly all require Electors to be inhabitants of the state, and most require that Electors reside in the district they represent.

 

Thus, these were literally illegal votes, in what is the most simple, open and shut disqualification of a legal process that can be imagined. The alternative is to effectively set a precedent that fraud, violations of legal processes originating in the Constitution can be overlooked by a court with

It is could be suggested that this was a matter for the individual states; however;

Nor can the Senate’s completely ceremonial “certification” consisting of counting what is sent by the states of the electoral votes be held as somehow cleansing the process- the Senate alone, cannot be said to overwrite existing state laws, referenced by the Constitution, especially not when 50 unqualified electors would represent the voting blocks of more that 20 million people.

 

Please see Exhibit A, as all names, and state statutes violated are present.

 

Second Claim for Relief

Plaintiff alleges that the Interstate Crosscheck program, especially in the context of the other discriminatory intent legal findings, and quotes, must be calculated in an audit of potentially tainted election.

Plaintiff alleges that that double voting is essentially a moot issue, especially in Presidential elections. 10,000 people voting 4 times each, would be 40,000 extra votes across multiple states, in a large, unlikely and unwieldy criminal conspiracy that would not guarantee any results.

In 27 states, all but 2 Republican, including Pennsylvania, there is a list of 7 million names, out of the 110 million in the databases, or approximately 6% of the electorate that are suspected “double voters”, putting an onus of suspected criminal activity on citizens with government officials, based on the very “suspicious” behavior, of similar first and last names in different states. The below sample is an example of the “matches”.

 

 

VoterState First_Name Middle_Name Last_Name Suffix_Name
Georgia MICHAEL JASON WILLIAMS  
Ohio MICHAEL ANTHONY WILLIAMS  
         
Georgia MICHAEL LEE WILLIAMS JR
Ohio MICHAEL A WILLIAMS  
         
Georgia MICHAEL JUSTIN WILLIAMS  
Ohio MICHAEL KEITH WILLIAMS  
         
Georgia MICHAEL V WILLIAMS  
Ohio MICHAEL D WILLIAMS  

 

 

In the analysis- African Americans, Latino’s and Asians are disproportionately represented by approximately 13%, while white Americans are underrepresented by approximately 9%.

This list is operated by Kris Kobach of Kansas- the Secretary of State who sued EAC in

KOBACH v. THE UNITED STATES ELECTION ASSISTANCE COMMISSION,    lost, and proceeded to act in a manner  in 2016 agreed to settle with the ACLU to avoid a contempt of court on the order, for refusing to register 10’s of thousands of voters who had not complied with the new, and still illegal citizenship requirements, likely denying citizens

Plaintiff repeats for clarity- the Secretary of State of Kansas, a person who has defied a federal court order, purging voters tens of thousand of voters illegally, has built a list of 7 million people with similar names in different states, 67% more likely to affect minority voters because of a larger incidence of similar names.  Kris Kobach has collaborated with 26 states as a justification for purging voters. In 8 of these states, public laws have been struck down in court cases brought against them, 2 found to have had discriminatory intent, as Ohio  and Kansas settled.  These are cases about voting hours, and voter id’s. Does the Court stipulate that discriminatory intent will only extend to public processes? Or is it far more likely that, behind the scenes, in untraceable, un audited election processes the same commitment to winning at any cost?

In Michigan, 450,000 names were on the Crosscheck list. The final margin for victory was less than 10,000.

 

Toney v. White, 488 F. 2d 310 – Court of Appeals, 5th Circuit 1973

  1. Notwithstanding the fact that the record does not reveal any calculated racially motivated purpose for the acts and omissions of the Registrar, the acts and practices of this defendant constitute an unlawful deprivation of the right of qualified Negro voters to vote regardless of race or color as provided by the Fifteenth Amendment and the Voting Rights Act of 1965, especially in light of the State Attorney General’s opinion as to the timing of these acts and practices.”

“10. Where, as here, there has been a history of racial discrimination in the voting process, and a public official applies or neglects to apply the laws pertaining to the purging of voter rolls contrary to the spirit of Louisiana law, the result of which is that a substantial number of Negroes are purged and few whites are purged, when by proper application of the law fewer Negroes would have been purged and more whites would have been purged, we conclude here that Negroes have been discriminated against in the administration of the voting process in violation of the Fifteenth Amendment and of Sections 2 and 11(a) of the Voting Rights Act of 1965 and 42 U.S.C. § 1971(a).”

It was the view of the district court that the remedy of voiding an election was appropriate regardless of the good faith intentions of the election officials once discrimination in fact was proven in the administration of the election process. The election was thereupon voided

 

A test for the legality, below, from Richardson v Ramirez, and Justice Marshall, only, Crosscheck centers around no specific statute, and instead of convicted felon who has served their time, instead, the qualification, is having a similar name to someone in a different state, and potentially being double registered, with then the potential for double voting, is the person being purged from the rolls.

78*78 We concluded: “[I]f a challenged statute grants the right to vote to some citizens and denies the franchise to others, `the Court must determine whether the exclusions are necessary to promote a compelling state interest.’ “ 405 U. S., at 337. (Emphasis in original.)

To determine that the compelling-state-interest test applies to the challenged classification is, however, to settle only a threshold question. “Compelling state interest” is merely a shorthand description of the difficult process of balancing individual and state interests that the Court must embark upon when faced with a classification touching on fundamental rights. Our other equal protection cases give content to the nature of that balance. The State has the heavy burden of showing, first, that the challenged disenfranchisement is necessary to a legitimate and substantial state interest; second, that the classification is drawn with precision—that it does not exclude too many people who should not and need not be excluded; and, third, that there are no other reasonable ways to achieve the State’s goal with a lesser burden on the constitutionally protected interest. E. g., Dunn v. Blumstein, supra, at 343, 360; Kramer v. Union Free School District, 395 U. S. 621, 632 (1969); see Rosario v. Rockefeller, 410 U. S. 752, 770 (1973) (POWELL, J., dissenting); cf. Memorial Hospital v. Maricopa County, 415 U. S. 250 (1974); NAACP v. Button, 371 U. S. 415, 438 (1963); Shelton v. Tucker, 364 U. S. 479, 488 (1960).

 

 

Third Claim for Relief

Plaintiff further asserts that improperly, 14th Amendment section 2- allowing of voter removal by states, but requiring reapportionment, has never been assessed in drawing electoral maps- allowing for overrepresentation by states that regularly disbar voters. Because of the elector and house limits; the representational shift would constitute a move of electors and House representatives.

 

Now, the Warren Court era case used to justify this continued disenfranchisement, more than a 100 years after the Amendment became part of the Constitution is Richardson vs Ramirez(1974).

That this is the bellwether case on a subject matter as important as voter disenfranchisement is telling; on it’s face, this case is outside the bounds of the text Article III, Section 2 far more clearly than any “injury-in-fact” boilerplate dismissal, and indeed; approximately 50% of the text of the majority and the 2 dissents were spent attempting to explain the grant of writ of certiorari, after the State Supreme Court had ruled for no relief granted to the plaintiffs.

 

Where then, is the case or Controversy? This is a purely advisory opinion of the sort expressly forbidden by centuries of case law, and one with a dubious and frankly dangerous to civil rights; and the Courts should welcome the opportunity to reclaim high ground, consistent rulings, and relegate this case to the dustbins and to the footnotes of history, as the Plaintiff here, pulls the footnotes and the dissent to it’s proper place as the face of 14A section 2, the words of the Honorable Thurgood Marshall (Richardson v Ramirez):

 

[24] To say that § 2 of the Fourteenth Amendment is a direct limitation on the protection afforded voting rights by § 1 leads to absurd results. If one accepts the premise that § 2 authorizes disenfranchisement for any crime, the challenged California provision could, as the California Supreme Court has observed, require disenfranchisement for seduction under promise of marriage, or conspiracy to operate a motor vehicle without a muffler. Otsuka v. Hite, 64 Cal. 2d 596, 414 P. 2d 412 (1966). Disenfranchisement extends to convictions for vagrancy in Alabama or breaking a water pipe in North Dakota, to note but two examples. Note, Disenfranchisement of Ex-felons: A Reassessment, 25 Stan. L. Rev. 845, 846 (1973). Even a jaywalking or traffic conviction could conceivably lead to disenfranchisement, since § 2 does not differentiate between felonies and misdemeanors.

 

From the main body of the dissent (Marshall, Richardson v Ramirez):

 

Since the Court nevertheless reaches the merits of the constitutionality of California’s disenfranchisement of ex-felons, I find it necessary to register my dissent on the merits as well. The Court construes § 2 of the Fourteenth Amendment as an express authorization for the States to disenfranchise former felons. Section 2 does except disenfranchisement for “participation in rebellion, or other crime” from the operation of its penalty provision. As the Court notes, however, there is little independent legislative history as to the crucial words “or 73*73 other crime”; the proposed § 2 went to a joint committee containing only the phrase “participation in rebellion” and emerged with “or other crime” inexplicably tacked on.[16] In its exhaustive review of the lengthy legislative history of the Fourteenth Amendment, the Court has come upon only one explanatory reference for the “other crimes” provision—a reference which is unilluminating at best.

The historical purpose for § 2 itself is, however, relatively clear and in my view, dispositive of this case. The Republicans who controlled the 39th Congress were concerned that the additional congressional representation of the Southern States which would result from the abolition of slavery might weaken their own political dominance.[18] There were two alternatives available—either to limit southern representation, which was unacceptable on a long-term basis,[19] or to insure that southern Negroes, sympathetic to the Republican cause, would be enfranchised; but an explicit grant of suffrage to Negroes was thought politically unpalatable at the time.[20] Section 2 of the Fourteenth Amendment was the resultant compromise. 74*74 It put Southern States to a choice—enfranchise Negro voters or lose congressional representation.

 

Given that in Florida, felon disenfranchisement renders 25% of the African American voters ineligible, it would seem to be an unfortunate form of voter suppression via race.

Plaintiff would take this one step further, and say that the meaning of the passage to be a modifier probably best expressed as “rebellion or other such crime” would have been a less ambiguous way of stating the meaning, meant to encompass other, similar treasonous acts  for which participation in democratic society would be dangerous, and likely to be manipulated to the detriment of the people of the state/country. Given the time period, it seems inconceivable that the framers of the 14th Amendment were unaware that rebellion is in fact a crime,[1]and thus would have said, simply, crime, were that the true intent.

 

The intent to avoid have large groups disenfranchised from voting, while others in the same jurisdiction, have their votes magnified in national and state wide representation,(hence more powerful in maintaining the legal conditions that spawn the disenfranchisement of  the vote)without even a semblance of an adjustment, is a straight line of progress from the infamous 3/5ths compromise through to 14A section 2.

 

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons

 

It is clear here, from “excluding Indians not taxed” and 3/5ths of all other persons, that a status of not taxed is the only place where enumeration should not be applied

 

Are we to believe then, that a loophole in a passage meant to ensure national reapportionment as a check on voter disenfranchisement in an amendment, excuse me THE amendment, to ensure equal protection for all men(not being quite enlightened yet to include the fairer sex), after the bloody and protracted war was then meant to have the effect of millions enumerated, for 5/5ths representation, or an even better deal for the “real” citizens in terms of national power, than slavery?   It strains credulity that in developing a remedy to ensure southern black people had the right to vote, and a penalty paid for removing voter rights, should become the very instrument of voter right suppression through an ill-defined word. Also, if one is to assume then, that people are, taken out of the voting, would they not then qualify as “all other persons” and have us back at 3/5s?

 

At the time of this decision, 1974, the total number of disenfranchised was still large for a society of this size- a million plus would be one of the largest prison countries on the planet even today; but today that number has reached 6 million or 2% of the US population; in Florida, that number reaches 10%. (see Exhibit B)  10% of the population that is also subject to taxation without representation.

 

Justice Marshall:

 

“constitutional concepts of equal protection are not immutably frozen like insects trapped in Devonian amber.” Dillenburg v. Kramer, 469 F. 2d 1222, 1226 (CA9 1972). We have repeatedly observed:

“[T]he Equal Protection Clause is not shackled to the political theory of a particular era. In determining what lines are unconstitutionally discriminatory, we have never been confined to historic notions of equality, any more than we have restricted due process to a fixed catalogue of what was at a given time deemed 77*77 to be the limits of fundamental rights.” Harper v. Virginia Board of Elections, 383 U. S. 663, 669 (1966).”

 

“In my view, the disenfranchisement of ex-felons must be measured against the requirements of the Equal Protection Clause of § 1 of the Fourteenth Amendment. That analysis properly begins with the observation that because the right to vote “is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government,” Reynolds v. Sims, 377 U. S., at 555, voting is a “fundamental” right. As we observed in Dunn v. Blumstein, supra, at 336:

“There is no need to repeat now the labors undertaken in earlier cases to analyze [the] right to vote and to explain in detail the judicial role in reviewing state statutes that selectively distribute the franchise. In decision after decision, this Court has made clear that a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction. See, e. g., Evans v. Cornman, 398 U. S. 419, 421-422, 426 (1970); Kramer v. Union Free School District, 395 U. S. 621, 626-628 (1969); Cipriano v. City of Houma, 395 U. S. 701, 706 (1969); Harper v. Virginia Board of Elections, 383 U. S. 663, 667 (1966); Carrington v. Rash, 380 U. S. 89, 93-94 (1965); Reynolds v. Sims, supra.”

 

78*78 We concluded: “[I]f a challenged statute grants the right to vote to some citizens and denies the franchise to others, `the Court must determine whether the exclusions are necessary to promote a compelling state interest.’ “ 405 U. S., at 337. (Emphasis in original.)

To determine that the compelling-state-interest test applies to the challenged classification is, however, to settle only a threshold question. “Compelling state interest” is merely a shorthand description of the difficult process of balancing individual and state interests that the Court must embark upon when faced with a classification touching on fundamental rights. Our other equal protection cases give content to the nature of that balance. The State has the heavy burden of showing, first, that the challenged disenfranchisement is necessary to a legitimate and substantial state interest; second, that the classification is drawn with precision—that it does not exclude too many people who should not and need not be excluded; and, third, that there are no other reasonable ways to achieve the State’s goal with a lesser burden on the constitutionally protected interest. E. g., Dunn v. Blumstein, supra, at 343, 360; Kramer v. Union Free School District, 395 U. S. 621, 632 (1969); see Rosario v. Rockefeller, 410 U. S. 752, 770 (1973) (POWELL, J., dissenting); cf. Memorial Hospital v. Maricopa County, 415 U. S. 250 (1974); NAACP v. Button, 371 U. S. 415, 438 (1963); Shelton v. Tucker, 364 U. S. 479, 488 (1960).

I think it clear that the State has not met its burden of justifying the blanket disenfranchisement of former felons presented by this case. There is certainly no basis for asserting that ex-felons have any less interest in the democratic process than any other citizen. Like everyone else, their daily lives are deeply affected and changed by the decisions of government.

Prayer for Relief

  1. Adopt transparency guidelines, and redress ability guidelines for audits on elections, election systems. Declaratory relief on minimally compliant Constitutional standards, to serve as law until Congress can pass an appropriate law.
  2. Determine whether or not Presidential power was appropriately transferred; there has been someone assuming the office who did not hold it.

 

  1. If a nullification occurs, ask that all departed department heads of Cabinet posts be asked to return in the interim to manage their departments.
  2. Subpoenas to get from 50 states and the District of Columbia, detailed reports on voters, voters purged when and for what reason
  3. Writ of Mandamus to order a comprehensive, external investigation, and audit of the election processes of all states, possibly from UN and report to base findings upon, as well as state by state, list of complaints
  4. Retain jurisdiction over this action to monitor and enforce Defendants’ compliance with

the national remedial plan and all associated orders of this Court

  1. Grant such other and further relief as the Court deems just and proper.
  2. Leave to amend- there are other voices which must weigh in, and additional avenues which must be covered to make a reform comprehensive enough to even allow for real re vote, or to have trustworthy elections.

Exhibit A- List of disqualified electors, and the state statutes disqualifying them

See attached at the end, separately numbered 1-18

 

 

 

 

 

 

 

 

 

 

 

 

Exhibit B By state, percentages of disenfranchised voters

http://felonvoting.procon.org/view.resource.php?resourceID=000287

All data below were taken from The Sentencing Project’s July 2012 report “State-Level Estimates of Felon Disenfranchisement in the United States, 2010” (452KB) , by Christopher Uggen, Sarah Shannon, and Jeff Manza.

I. Top 10 States with the Highest Percentage of Disenfranchised Voters, 2010

 

Rank   State   Total Number of

Disenfranchised Voters

  Percent of

Disenfranchised Voters

             
1   Florida   1,541,602   10.42%
2   Mississippi   182,814   8.27%
3   Kentucky   243,842   7.35%
4   Virginia   451,471   7.34%
5   Alabama   262,354   7.19%
6   Tennessee   341,815   7.05%
7   Wyoming   25,657   5.99%
8   Nevada   86,321   4.24%
9   Arizona   199,734   4.19%
10   Georgia   275,866   3.83%

 

 

Exhibit B-1 Change in Disenfranchised Voters over time

 

Disenfranchised Voters, 1960-2010

In 1960, the number of voters who were disenfranchised due to a felony conviction was 1,762,582. By the late 1970s this number dropped 33% to 1,176,234, but then began to rise.

 

By 2010 the number of people who lost the vote due to a felony conviction had grown to 5,852,180.

 

This graph was taken from The Sentencing Project’s July 2012 report “State-Level Estimates of Felon Disenfranchisement in the United States, 2010” (452KB) .

 

 

 

Exhibit C- Order to show cause to avoid a contempt of court

 

 

 

 

Exhibit D- Discriminatory Intent

 

Unbelievable GOP Statements on Voter Suppression

October 24, 2014

by Karin Kamphttp://kamp/

You would think that making it easier for citizens to vote would be something for everyone in a democracy to celebrate. But the shocking remarks by these six government officials — some of whom will be on the November ballot — tell a different story.

Gov. Chris Christie: Same-Day Voter Registration Is a “Trick” and GOP Needs to Win Gubernatorial Races So They Control “Voting Mechanisms”

Gov. Chris Christie during a campaign stop in Connecticut for Republican gubernatorial candidate Tom Foley. (AP)

Earlier this week, New Jersey Gov. Chris Christie spoke at a US Chamber of Commerce gathering in Washington, DC. In his comments, The Record reports that Christie “pushed further into the contentious debate over voting rights than ever before, saying Tuesday that Republicans need to win gubernatorial races this year so that they’re the ones controlling ‘voting mechanisms’ going into the next presidential election.”

This isn’t the first time Christie’s come clean about GOP intentions at the ballot box. In August, while campaigning in Chicago for Bruce Rauner, the GOP candidate challenging Gov. Pat Quinn, Christie complained that Illinois would become the 11th state to permit same-day voter registration this November — a move supporters say will increase turnout and improve access. Christie didn’t see it that way, calling it an underhanded Democratic get-out-the-vote tactic. Christie said of Quinn: “I see the stuff that’s going on. Same-day registration all of a sudden this year comes to Illinois. Shocking,” he added sarcastically. “I’m sure it was all based upon public policy, good public policy to get same-day registration here in Illinois just this year, when the governor is in the toilet and needs as much help as he can get.” He added that the voter registration program is designed to be a major “obstacle” for Republican gubernatorial candidates.

Fran Millar: Georgia Senator Complains About Polling Place Being Too Convenient for Black Voters

 

Rep. Fran Millar (Photo by Ric Feld/AP)

Georgia state Sen. Fran Millar (R-Dunwoody) wrote an angry op-ed following the news that DeKalb County, part of which he represents, will permit early voting on the last Sunday in October. The voting will take place at the Gallery at South DeKalb mall. Here’s what Millar wrote in The Atlanta-Journal Constitution: “[T]his location is dominated by African-American shoppers and it is near several large African-American mega churches such as New Birth Missionary Baptist… Is it possible church buses will be used to transport people directly to the mall since the poll will open when the mall opens? If this happens, so much for the accepted principle of separation of church and state.” Millar, who is senior deputy whip for the Georgia Senate Republicans, promised to put an end to Sunday balloting in DeKalb County when state lawmakers assemble in the Capitol in January.

Doug Preis: An Ohio GOP Chair Says We Shouldn’t Accommodate the “Urban — Read African-American — Voter-Turnout Machine”

In 2012, Republican officials in Ohio were limiting early voting hours in Democratic-majority counties, while expanding them on nights and weekends in Republican counties. In response to public outcry, Ohio Secretary of State Jon Husted mandated the same early voting hours in all 88 Ohio counties. He kept early voting hours from 8 a.m. to 5 p.m. on weekdays from Oct. 2 to 19 and broadened hours from 8 a.m. to 7 p.m. from Oct. 22 to Nov. 2. But he refused to expand voting hours beyond 7 p.m. during the week, on weekends or three days prior to the election — which is when voting is most convenient for many working-class Ohioans. Here’s what the Franklin Party (Columbus) Ohio GOP chair, Doug Preis, and close adviser to Ohio Gov. John Kasich, said about limiting early voting. “I guess I really actually feel we shouldn’t contort the voting process to accommodate the urban — read African-American — voter-turnout machine.” (And yes, he actually said “read African-American,” that wasn’t inserted.)

Greg Abbott: Texas AG Says Partisan Districting Decisions Are Legal, Even if There Are “Incidental Effects” on Minority Voters

The 2010 Census results showed that 89 percent of the population growth in Texas came from minorities, but “when it came to fitting those new seats in the map, Republican lawmakers made sure three of them favored Republicans, who tend to be white,” according to the Associated Press. The Justice Department claims that Texas lawmakers intentionally redrew the state’s congressional districts in order to dilute the Hispanic vote. Attorney General Greg Abbott, who is running for governor of Texas, wrote the following in a letter to the Department of Justice defending the state’s voting maps:

“DOJ’s accusations of racial discrimination are baseless. In 2011, both houses of the Texas Legislature were controlled by large Republican majorities, and their redistricting decisions were designed to increase the Republican Party’s electoral prospects at the expense of the Democrats. It is perfectly constitutional for a Republican-controlled legislature to make partisan districting decisions, even if there are incidental effects on minority voters who support Democratic candidates.”

Ted Yoho: Only Property Owners Should Vote

 

Rep. Ted Yoho (Photo: Gage Skidmore/flickr CC 2.0)

While running for a Florida congressional seat in 2012, Ted Yoho suggested that only property owners should have the right to vote, as you can watch in this video. Here’s what he said: “I’ve had some radical ideas about voting and it’s probably not a good time to tell them, but you used to have to be a property owner to vote.” He also called early voting by absentee ballots “a travesty.” And yes, Yoho won the election, and is now a member of Congress.

Don Yelton: North Carolina GOP Precinct Chair: Voter-ID Law Will “Kick Democrats in the Butt” and Hurt “Lazy Blacks”

In an interview last year with The Daily Show, Don Yelton, a GOP precinct chair in Buncombe County, North Carolina, defended the state’s new voter-ID law, saying so many offensive things, he was asked to resign the day after it aired. Yelton admits at the start of the segment that the number of Buncombe County residents who commit voter fraud is one or two out of 60,000 a year. The interview correspondent, Aasif Mandvi, replies that those numbers show “there’s enough voter fraud to sway zero elections,” and then Yelton replies, “Mmmm…that’s not the point.” He goes on to say that “if it hurts a bunch of lazy blacks that want the government to give them everything, so be it.” and then adds, “The law is going to kick the Democrats in the butt.” After the segment aired, the Buncombe County GOP Chair issued a statement on Yelton’s comments, calling them “offensive, uniformed and unacceptable of any member within the Republican Party” and called for Yelton’s resignation. He obliged.

The Fixhttp://www.washingtonpost.com/news/the-fix/

Republicans keep admitting that voter ID helps them win, for some reason

By Aaron BlakeApril 7, 2016

 

Voter ID laws have swept across the United States in recent years, following big GOP gains in the 2010 and 2014 elections. With Republicans now more powerful in the states than they’ve been since the Great Depression, it has been a priority for them from coast to coast.

The stated purpose of these laws, of course, has always been that they prevent voter fraud; you need to have ID to verify your identity for other things, after all, so why not voting? And polls generally show a strong majority of Americans agree.

But as any voter ID opponent will tell you, there are so few cases of documented voter fraud that it’s not clear there’s actually an ill that’s being cured. Instead, Democrats allege that these laws are clearly aimed at disenfranchising minority voters, in particular, because they are less likely to have the proper IDs. And minority voters, of course, heavily favor the Democratic Party.

Assisting Democrats in this argument that it’s all a partisan power grab? A handful of unhelpful Republicans who have suggested in recent years that voter ID does indeed help the GOP — perhaps so much that it would put them over the top in blue-leaning swing states like Wisconsin and Pennsylvania.

Freshman Rep. Glenn Grothman (R-Wis.) became the latest to stumble into this territory this week, including voter ID as part of his case for why Republicans could win Wisconsin in the general election for the first time since 1984.

“I think Hillary Clinton is about the weakest candidate the Democrats have ever put up,” Grothman said, before volunteering the following: “And now we have photo ID, and I think photo ID is going to make a little bit of a difference as well.”

It wasn’t the first time, though, that Grothman has suggested as much. Back in 2012, when he was a state senator, he also predicted voter ID could have helped Mitt Romney win his state. Asked if it could make the difference in a close race, Grothman agreed that it could.

“Yes, right,” he said, according to clip posted by the liberal ThinkProgress. “I think we believe that, insofar as there are inappropriate things, people who vote inappropriately are more likely to vote Democrat.”

Perhaps the most well-publicized example of this belongs to then-Pennsylvania state House Majority Leader Mike Turzai (R), who said even more clearly in a 2012 speech that voter ID would help Romney carry his state.

“Voter ID, which is going to allow Governor Romney to win the state of Pennsylvania: done,” Turzai said while listing his legislature’s accomplishments.

It didn’t help when, after the 2012 election, Pennsylvania GOP Chairman Robert Gleason agreed with the statement that the attention drawn to voter ID probably helped Republicans. (Voter ID hadn’t actually been implemented yet, but we’ll get to that.)

“Yeah, I think a little bit,” Gleason said. “We probably had a better election. Think about this: We cut Obama by 5 percent, which was big. A lot of people lost sight of that. He beat McCain by 10 percent; he only beat Romney by 5 percent. And I think that probably photo ID helped a bit in that.”

And then there’s that infamous 2013 “Daily Show” interview of a local North Carolina GOP precinct chairman who said he was okay with it if voter ID prevented “lazy blacks” from voting.

“The law is going to kick the Democrats in the butt,” Don Yelton added. He was later asked to resign over his racist comments.

Each time a GOP official says something like this, Democrats get understandably excited. Aha! they say, here’s proof that the laws are actually aimed at disenfranchising minority and/or Democratic voters and helping Republicans!

Apart from the last case, though, that’s drawing an extra line or two between what these Republicans are saying about voter ID and its impacts. As noted above, Pennsylvania didn’t even wind up having voter ID in the 2012 election, because it got hung up in court, and Gleason was merely talking about the debate over it helping Republicans. Given that polls show it’s popular, there’s a case to be made that’s true.

When it comes to the other examples, a more charitable read is basically what Grothman said in 2012: Republicans believe voter ID combats voter fraud, and voter fraud is more likely to be perpetrated by Democrats.

That, of course, is highly debatable. And what’s more, saying that voter ID would do enough to actually help Republicans win states they otherwise wouldn’t would require it to stop a significant amount of voter fraud — which, again, has never been documented.

All of which is to say that Grothman and other Republicans can probably defend their comments accordingly. But they’re doing so on awfully shaky ground. And any time you hail the passage of a law as potentially helping your side win elections, you’re basically begging to be accused of passing it for the wrong reasons. Which is a really unhelpful thing for Republicans.

 

Exhibit E- Crosscheck list sample

Attached.

 

 

 

[1] somewhat arguably in a nation whose initial legal document defines the case for which revolution is a responsibility, beyond it’s status as a right. Though of course the irony of claiming a document proclaiming all men to be created equal and any government impinging upon a person’s liberty or pursuit of happiness was inherently invalid was the legal foundation for forming a government based upon the inequality of man, and the ability to literally bind humans in chains was lost on the Confederacy, in their attempts to use Declarational powers.

Democratic Senators- Sue McConnell for Obstruction, and get Kavanaugh postponement

Mitch Mcconnell, obstructionist

Case for Senate suing McConnell, getting an injunction and relief for the deliberate sabotage of a sitting US President and government business

We believe that the Senate Judiciary specifically and any member of the US Senate could have standing in a case regarding the 2016 Obstruction of Justice regarding the Garland nomination as well as the pattern of a record 79 filibusters of federal judges.  Not only was this an obstruction of the legal proceedings mandated by the Constitution and the Judiciary act of 1789- it was literally an obstruction of the entire Justice system, writ large.  The harm- to the judiciary itself, yet and still, there are 90 federal court  vacancies, which means cases take longer, innocent people in jail longer, more cases that aren’t being completed or even taken up…. so McConnell and Co could gain a political advantage that violates separation of powers.

While the Senate, certainly has the power to reject Presidential nominees, neither Mitch McConnell, nor Charles Grassley are the Senate. No vote was had, which is the only way of determining the will of the Senate. Neither have pocket veto power over Presidential nominees- and admitted they were doing so to prevent the President from selecting  a  Supreme Court Justice, as was his power, and his duty.

The clock, which would run out normally, stopped at the same time Mitch McConnell launched his intention to obstruct government hearings and his refusal to acknowledge a twice elected President.

The cloud of illegitimacy that hangs over every 5-4 decision of the term, and the honor, and respectability of the Supreme Court as an institution, and the United States as a whole is tarnished, and disillusions the public of the United States as to the possibility of Justice.

Further, to allow this sort of partisan refusal to do Constitutionally mandated duties because they do not like or are in a different party, rather than for real, material concerns about peoples ability to do their jobs, is a dangerous precedent to set.  It also means that any time the President is of a different party, the Senate can just hold up nominations. If Congress passes a law, the President doesn’t like, he or she could then direct the agencies not to obey.

The proper analogy of tainted processes is to see what happens when police or prosecutors are found to have been planting or withholding evidence- any process associated with that person, is subject to be overturned. Illegal actions cannot be rewarded by influence over the Justice processs

The Constitution does not say, for example, that ALL Electoral College votes need to be counted. Nor does it need to. There are some things which are assumed to be understood. John Marshall (1st Chief Justice of the Supreme Court) talks about this- take the responsibility to establish post offices. The Constitution does not say to deliver mail, nor to enforce mail theft laws. Because some things follow.

Pros of taking Action

There could be upwards of three major benefits-

  1. An injunction on Kavanaugh hearings is a natural ask, which means that Supreme Court picks could be pushed until after November or whenever.
  2. Using a writ of mandamus it is un unprecedented, but possible for the Courts to force the Senate to hold hearings on the Garland nomination. The recourse after that would be tricky, but it is clear the actions were taken with the specific anti democratic, completely corrupt, and illegal intent to prevent an ideological vote shift on the courts.
  3. If it were found to be a major violation, and Judge Gorsuch would need to be removed from the bench and 5-4 decisions of the last term would have to be nullified. It seems extreme, but it is not. The analogy is the police or prosecutors found to be falsifying evidence, and the case exonerations of prior based on their misconduct. This illegal action was done with express intent of shifting the balance of power back to a Conservative base. Corrupt actions cannot be allowed to achieve their result.

 

We feel as though the chances are good- Judges are people, people who like nice, orderly processes- and this directly affects them, case loads are piling up.  Liberal or Conservative- technically speaking this violation is far worse if you honestly claim originalist or constructionist, the latter of which we do.

 

The relevant statutes for cause of action are all criminal- 18 USC 241, 242, and 18 USC 1505, and other related obstruction of justice statutes- so it may need to be a suit in equity to allow the court leeway in crafting  civil relief.

From United States v Classic

Section 19 of the Criminal Code condemns as a criminal offense any conspiracy to injure a citizen in the exercise “of any right or privilege secured to him by the Constitution or laws of the United States.” Section 20 makes it a penal offense for anyone who, acting “under color of any law,” “willfully subjects, or causes to be subjected, any inhabitant of any State . . . to the deprivation of any rights, privileges, and immunities secured and 310*310 protected by the Constitution and laws of the United States.”

 

18 USC 1505 Obstruction of Justice

Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress—

Shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both.

 

  1. In 2016- Mitch McConnell and Charles Grassley violated the Constitution, refusing, on behalf of the entire Senate, to engage in a Constitutionally mandated duty; to provide Advice and Consent to President Obama’s Supreme Court pick. 2 men vetoed the President of the United States, and blocked proceedings in a manner that has never before occurred in the 200+ year history of Supreme Court nominations. The Senate did not provide the necessary advice and consent- they can only do so with a vote. Instead the schedulers of hearings decided that they would hold no hearings, and usurped the Powers of both the Presidency and the entire Senate, at once. Their blockage of the system still has left the US district courts empty.

2. Mitch McConnell admits he did it to preserve a Republican advantage (video here) They and several other Republican Senators promised, publicly to block any HRC nomination for 4 years.

In addition, there were 79 judgeships that were filibustered- more than the entire history of the United States- this is a pattern of behavior, done to subvert the democratic process, and the Constitution

Contrary to popular belief; the reason this was so unprecedented is that it has been litigated, and case law accumulated- the Supreme Court has been clear, over 6+ cases spanning 150 years- Congress has very limited powers to interrupt Appointments, and rejections are supposed to be for clearly unqualified or unsuitable candidates.

Myers v. United States

Chief Justice Taft stated qualifications set by Congress may not “so limit selection and so trench upon executive choice as to be in effect legislative designation.”

 

For the Originalists:

Washington wrote in his diary that Thomas Jefferson and John Jay agreed with him that the Senate’s powers “extend no farther than to an approbation or disapprobation of the person nominated by the President, all the rest being Executive and vested in the President by the Constitution.”

If they met in secret to decide this,  without a reporter- this would likely be an additional violation

Buckley v. Valeo, 424 U.S. 1 (1976)

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)

Myers v. United States, 272 U.S. 52 (1926)

Morrison v. Olson, 487 U.S. 654 (1988)

Weiss v. United States, 510 U.S. 163 (1994)

Edmond v. United States, 520 U.S. 651 (1997)

 

Effects of McConnell’s Judiciary Obstruction lags on, creating delays

Chart of US Federal vacancies

Caseloads grow in Nevada, US as judicial vacancies unfilled

Chief U.S. District Judge Gloria Navarro in Las Vegas said the vacancies have “a huge impact, considering our caseload is going up and up and up.”

According to the Administrative Office of the U.S. Courts, the number of case filings in the Nevada district is higher than the national average for federal district courts. Nationwide, district court caseloads grew 6 percent last year alone.

There are now- due to McConnell’s deliberate slowing down the business of the American government 131 federal judgeships open. 13 Appellate seats,

McConnell Intent to Obstruct Testimony

Listen to McConnell here speak of his colleagues like the Founding Fathers- the Biden Rule- there was never a “Biden Rule” nor did Chuck Schumer set binding precedent for Constitutionally Mandated Duty with some off hand remarks. This action he took is completely unprecedented, the Senate Majority leader with one other Republican, vetoed the Appointment of the Chief Justice of the DC Circuit to the Supreme Court, the smallest jump imaginable..by the twice elected President, for no apparent reason.

He talks about the Democrats blocking Bork, the guy who fired the prosecutor investigating the break in ordered by the Republican Presidential Campaign, into the Democrats’ headquarters and covered up by the President, is the nominee for Supreme Court Justice? Why would you make it so obvious you’re promoting someone who went party over principle when it mattered. This guy didn’t even have to take a real stand- two guys before him resigned so they wouldn’t do the deed he did. So the Democrats didn’t vote for a guy who stopped the investigation of the break in to their head quarters- well, that’s a real head scratcher. I guess in politics you never can tell.

He says this precedent was set over decades, yet even that horrible and stupid pick for a nominee, Bork, got a vote, which he lost, as he should have.

8 Republican Senators said they would meet with Garland, and were refused by McConnell- they can meet with him but they will still not get to vote on him no matter what they decide, because Mitch and Chuck are the only people in the world who can schedule a hearing and they won’t do it.

Why? He thinks the American people should decide, and oh, it could flip the balance on the court to the Democrats and Obama’s influence would be for years to come. so, of course he will do what he can to delay this from happening.

Intent to Obstruct
Intent to Obstruct
No hearings for the longest time in Senate history
Obstruction of Justice
Obstruction of Obama’s Civil Rights
Obstruction of 59 judge ships

Senators McConnell and Grassley refused Constitutional Appointments Duty

Illegal actions tipped Supreme Court Balance

McConnell Garland Supreme Court Matter

Appointments Clause

The President…shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law….

Article II, Section 2, Clause 2

Scope:

When Mitch McConnell and Charles Grassley refused to give the Senate’s Advice -a Constitutionally Mandated Duty- on the twice elected President Obama’s nomination of Merrick Garland- the Chief Judge of the DC Court of Appeals -( essentially the position most like Supreme Court Seat without being a Supreme Court Seat, as boring and uncontroversial a pick as can be imagined ) to the Supreme Court it was unprecedented event in the history of the United States– holding up the business of the United States of America for a group that did not exist at the time of the writing of the Constitution- the interests of the Republican Party. Further it was part of a clear pattern- more judges blocked- 79 during Obama’s tenure then have been blocked by the Senate in the history of the Senate (59)

Mitch McConnell  refused to give Constitutionally Mandated Duty  Presidential Appointment Advice and did so without a legitimate reason.
The  actual reason was clear; do not allow the Constitutionally Elected President to Appoint Supreme Court Justices as he should Choose, unless he is a Republican President. This is not speculation but demonstrated by the statements of the Senate of time. The Intent was corrupt, naked power grab, as part of a deliberate, and public strategy to refuse to acknowledge the Power and Authority of the elected President. They did so, because the power of the Supreme Court had helped to keep their Party in Power for decades.
The reason for not stating a reason is also clear; naming that intent is what would be used in a trial for treason.

He held off for a year, and then rammed through the next President’s pick of Gorsuch, repealing the filibuster in order restoring the deciding vote to the conservative or Federalists on the  Supreme Court.

In the previous 200+ years of precedent- the pattern is the same, Supreme Court vacancy, hearing, position filled in under 120 days, only with great cause*-is a nomination like Bork’s very normally with a vote that’s 60-40 or something, trends but doesn’t follow the party lines- no  filibuster, a regular vote, a rare thing since Kentucky Senate Majority Leader McConnell has held the reigns of Senate power.

He Refused the Senate’s Constitutional responsibility to give Advice to the President on his Supreme Court pick, and far worse, cannot identify a legitimate reason to  have done something so extreme to Obama but nothing to George W Bush or Donald J Trump- President Barack Obama relatively scandal free two Term President  to seat a Supreme Court Justice, something which has never before happened, no vote at all, shut down the President.  Far from perfect, but nothing that could be said for him that could not be said for the Republican Presidents of the Era.  Total breach of authority and violation of separation of powers that are clearly delineated by text and by famous precedent.. Not even during the “Civil War” did something so blatantly unconstitutional happen

The President shall- by and with the Senate- Shall means it is a command, not a discretionary duty. While the letter of the law does not impose limits on the time frame- precedent does. Precedents and traditions, as a matter of law should not be overturned for transient causes, no cause given, or worst- a corrupt cause.   The President had a right to Promote the Chief Judge of the DC Circuit to the Supreme Court, and the Senate’s got to have a reason, and has to have a vote. If Mitch McConnell conspired to refuse a Constitutionally mandated duty – process from occurring to maintain control of a branch- holding the operations of Justice to his will alone- delaying many cases by months and years so he gets his preferred Judicial nominees, either for himself or for the Republican Parties decision tree, this is coup d’etat. Affecting as it did a swing vote, which was used in several decision this past year to overturn precedents, and to squash legitimate functions of government that manage the election of other branches. This sort of behavior is the elements of treason.

Extreme examples of the principles
The letter of the law  in the Constitution says all certificates shall be opened, but does not specifically state that ALL electoral votes are to be counted for all parties in the election. This does not qualify as a loophole that Joe Biden could have literally thrown away the electoral votes for the opposing party.
The precedent by not acknowledging this extreme deviation for no discernible value to the American people as a whole, for the bidding of his Party, is a prelude to lawlessness; get into office and do as thou wilt shall be the whole of the law, while using resources created by law.

 

Authority quote

Appointments Clause- Heritage Foundation

Congress has continued the practice to this day. The Supreme Court has held that Congress may not provide itself with the power to make appointments, Buckley v. Valeo (1976), but it is unclear how far Congress may go in setting qualifications for principal officers without contravening the Framers’ interest in assuring the President’s accountability for the initial choice. President James Monroe declared that Congress had no right to intrude upon the President’s appointing power. In Myers v. United States (1926), Chief Justice Taft declared that the qualifications set by Congress may not “so limit selection and so trench upon executive choice as to be in effect legislative designation.” In Public Citizen v. U.S. Department of Justice (1989), Justice Anthony Kennedy, concurring, opined that the President’s appointing power was exclusive, and that only the Incompatibility Clause (Article I, Section 6, Clause 2) limits the range of his choice. The Court, however, has yet to make a definitive statement on the issue.

 

And there is no more corrupt intent. Public statements demonstrate that Mitch McConnell deliberately held up the operation of the Federal Court Systems from sea to shining sea, a form of obstruction of  Justice, because governments operation is the operation of Justice, such as it is or it isn’t. To have US Senator do that for the strength of his party’s position.. “strategically playing the game”, holding up people’s lives, costing taxpayer dollars, longer sentences, longer pre trial detention. So McConnell could maintain a Republican hold on the Supreme Court.

 

This so called conservative has been in Congressional power and set the record for filibusters, judicial filibusters, the largest increases in deficits in American history under Republican President

Path Forward

 

We believe to establish Justice in this country there must be a hearing on the matter, and that we need testimony from Obama, McConnell and the entire Senate Judiciary at the time. Supporting testimony from the Attorney General’s. It would be good to have a firmly established analysis of the judicial nomination patterns in context of 200 years of history in opinions from DC District Court.
In the future all such questions of Constitutionally Mandated Duty,should get on the record opinions from the Executive and Justice branches. Petitions from the public of tangible Constitutional theory

Any and all Judicial nominations that were denied or confirmed from 2009 till present must be examined and whether individually or as a class is a decision yet to be decided upon.

 

 

Footnote*

 

*- like Bork, a lawyer who despite great intellectual capacity- fired a special prosecutor, who investigated when a President ordered a burglary into the DNC headquarters. The person of any stripe, who thinks their duty is to aid in the obstruction of Justice has no business being called a Justice. Further he broke into DNC headquarters, then you expect Democrats to vote for him? Height of a hubristic pick.

Appointments clause text from Heritage

Constitution the Supreme Law of the United States

Appointments Clause

ARTICLE II, SECTION 2, CLAUSE 2

 

The President…shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law….

This clause contemplates three sequential acts for the appointment of principal officers—the nomination of the President, the advice and consent of the Senate, and the Appointment of the Official by the President. This clause applies to principal officers in contradistinction to inferior officers, whose appointment is addressed in the next portion of the clause. Although the Senate must confirm principal officers, including Ambassadors and Supreme Court Justices, Congress may choose to require that any officers whose office is “established by Law” be confirmed by the Senate, whether they be inferior or not.

The important questions for principal officers and their confirmation are, first, whether the President has plenary power of nomination or whether the Constitution limits this power by requiring the President to seek prenomination advice; second, whether the President must nominate only those who meet qualifications set by Congress; and, third, whether the Senate has plenary power to reject nominees or whether that power is circumscribed by some standard.

Appointments Clause, cont.

 

Both the debates among the Framers and subsequent practice confirm that the President has plenary power to nominate. He is not obliged to take advice from the Senate on the identity of those he will nominate, nor does the Congress have authority to set qualifications for principal officers. The Senate possesses the plenary authority to reject or confirm the nominee, although its weaker structural position means that it is likely to confirm most nominees, absent compelling reasons to reject them.

 

The very grammar of the clause is telling: the act of nomination is separated from the act of appointment by a comma and a conjunction. Only the latter act is qualified by the phrase “advice and consent.” Furthermore, it is not at all anomalous to use the word advice with respect to the action of the Senate in confirming an appointment. The Senate’s consent is advisory because confirmation does not bind the President to commission and empower the confirmed nominee. Instead, after receiving the Senate’s advice and consent, the President may deliberate again before appointing the nominee.

The purpose of dividing the act of nomination from that of appointment also refutes the permissibility of any statutory restriction on the individuals the President may nominate. The principal concern of the Framers regarding the Appointments Clause, as in many of the other separation of powers provisions of the Constitution, was to ensure accountability while avoiding tyranny. Hence, following the suggestion of Nathaniel Gorham of New Hampshire and the example of the Massachusetts Constitution drafted by John Adams, the Framers gave the power of nomination to the President so that the initiative of choice would be a single individual’s responsibility but provided the check of advice and consent to forestall the possibility of abuse of this power. Gouverneur Morris described the advantages of this multistage process: “As the President was to nominate, there would be responsibility, and as the Senate was to concur, there would be security.”

The Federalist similarly understands the power of nomination to be an exclusively presidential prerogative. In fact, Alexander Hamilton answered critics who would have preferred the whole power of appointment to be lodged in the President by asserting that the assignment of the power of nomination to the President alone assures sufficient accountability:

[I]t is easy to show that every advantage to be expected from such an arrangement would, in substance, be derived from the power of nomination which is proposed to be conferred upon him; while several disadvantages which might attend the absolute power of appointment in the hands of that officer would be avoided. In the act of nomination, his judgment alone would be exercised; and as it would be his sole duty to point out the man who, with the approbation of the Senate, should fill an office, his responsibility would be as complete as if he were to make the final appointment. The Federalist No. 76.

Chief Justice John Marshall in Marbury v. Madison, Justice Joseph Story in his Commentaries on the Constitution of the United States, and the modern Supreme Court in Edmond v. United States (1997) all confirm that understanding.

Congress establishes offices, and the President, at least in regard to principal officers, nominates office holders. Under the Necessary and Proper Clause (Article I, Section 8, Clause 8), Congress has often established qualifications for those who can serve in the offices it has created, thereby limiting the range of those the President can nominate. Andrew Jackson protested that such acts were an unconstitutional infringement of his appointing power, but Congress has continued the practice to this day. The Supreme Court has held that Congress may not provide itself with the power to make appointments, Buckley v. Valeo (1976), but it is unclear how far Congress may go in setting qualifications for principal officers without contravening the Framers’ interest in assuring the President’s accountability for the initial choice. President James Monroe declared that Congress had no right to intrude upon the President’s appointing power. In Myers v. United States (1926), Chief Justice Taft declared that the qualifications set by Congress may not “so limit selection and so trench upon executive choice as to be in effect legislative designation.” In Public Citizen v. U.S. Department of Justice (1989), Justice Anthony Kennedy, concurring, opined that the President’s appointing power was exclusive, and that only the Incompatibility Clause (Article I, Section 6, Clause 2) limits the range of his choice. The Court, however, has yet to make a definitive statement on the issue.

Closely related to the Framers’ interest in assuring accountability was their interest in avoiding an appointment that would be the result of secret deals. In defending the clause’s structure of presidential nomination and public confirmation, Hamilton contrasted it with the appointments process by a multimember council in his own state of New York. Such a council acting in secret would be “a conclave in which cabal and intrigue will have their full scope….[T]he desire of mutual gratification will beget a scandalous bartering of votes and bargaining for places.” Delegates to the Constitutional Convention had expressed similar concerns. If the Senate had a formal prenomination advisory role, the Senate leaders and the President might well be tempted to make a deal that would serve their parochial interests and then be insulated from all but pro forma scrutiny. Other contemporaneous commentary on the Appointments Clause repudiates any special constitutional prenomination role for the Senate. James Iredell, a leading proponent of ratification in North Carolina and subsequently a Supreme Court Justice, observed at his state’s ratifying convention: “As to offices, the Senate has no other influence but a restraint on improper appointments. The President proposes such a man for such an office. The Senate has to consider upon it. If they think him improper, the President must nominate another, whose appointment ultimately again depends upon the Senate.”

The practice of the first President and Senate supported the construction of the Appointments Clause that reserves the act of nomination exclusively to the President. In requesting confirmation of his first nominee, President Washington sent the Senate this message: “I nominate William Short, Esquire, and request your advice on the propriety of appointing him.” The Senate then notified the President of Short’s confirmation, which showed that they too regarded “advice” as a postnomination rather than a prenomination function: “Resolved, that the President of the United States be informed, that the Senate advise and consent to his appointment of William Short Esquire….” The Senate has continued to use this formulation to the present day. Washington wrote in his diary that Thomas Jefferson and John Jay agreed with him that the Senate’s powers “extend no farther than to an approbation or disapprobation of the person nominated by the President, all the rest being Executive and vested in the President by the Constitution.” Washington’s construction of the Appointments Clause has been embraced by his successors. Some Presidents have consulted with key Senators and a few with the Senate leadership, but they have done so out of comity or political prudence and never with the understanding that they were constitutionally obliged to do so. A law setting qualifications would not only invade the power of the President, it would also undermine the authority of the Senate as the sole authority to decide whether a principal officer should be confirmed.

The other principal controversy arising from the Appointments Clause has concerned the authority of the Senate to reject nominees. The Senate has independent authority in that it may constitutionally refuse to confirm a nominee for any reason. While ideology and jurisprudential “point of view” were not among the kinds of concerns listed by the Framers as justifying the requirement of advice and consent, nothing in the text of the clause appears to limit the kind of considerations the Senate can take up. It is thus reasonable to infer that the Framers located the process of advice and consent in the Senate as a check to prevent the President from appointing people who have unsound principles as well as blemished characters. As the President has complete discretion in the use of his veto power, the Senate has complete and final discretion in whether to accept or approve a nomination.

Given that the Senate was not to exercise choice itself, it appeared to Alexander Hamilton that a nominee should be rejected only for “special and strong reasons.” The President’s power of repeated nomination provides a check on the Senate’s ability to reject a nominee on something less than an articulable weighty reason. In fact, Hamilton argued that if the Senate fails to make that case and rejects the nominee for a pretextual reason, the President would generally be in a position to find a second candidate without these putative defects who generally shares the President’s point of view. It is rare, however, for a President to renominate a person to a position once the Senate has declined to accept the nomination.

The President does possess an advantage in the unitary nature of the executive office as compared to the diffuse and variegated nature of the Senate—even when it is controlled by the opposition party. The President is a single individual, whereas the Senate is a body composed of many individuals with a wide range of views, including members with views like that of the President. When the President has a substantial basis of party support in the Senate and thus a nucleus of probable supporters, he has leverage for confirmation. Thus, the image of a divided government as a government in any sense equally divided when it comes to an analysis of the Appointments Clause and the confirmation process is a fundamentally false image, as George Mason recognized: “Notwithstanding the form of the proposition by which the appointment seemed to be divided between the Executive & Senate, the appointment was substantially vested in the former alone.” Moreover, the President’s advantage in the process is a considered feature of the Framers’ design: they knew how to create a process by which the power of the executive and the Senate would be rendered more equal. Unlike the approval of treaties, it does not take a supermajority to approve a presidential nominee.

Because the President has the initiative of choice in the appointments to the executive branch and the judiciary, the views of his prospective appointees are more likely to become a presidential campaign issue than in senatorial campaigns. Since he possesses the greatest discretion, the political process fastens upon him the greatest accountability. However, when a substantial number of Senators assert that there are strong and compelling political reasons to reject a nominee (as opposed to rejecting one because of a flawed character), the Constitution’s structure ensures a confirmation battle. As such, the Constitution contains mechanisms designed to contain conflict within the republican process in order to protect against the degeneration of the Republic’s original ideals and thus ensure the Republic’s stability. The Appointments Clause is a prime example of such a mechanism. It structures the confirmation process so that when two of the Republic’s national governing branches are in fundamental disagreement, there will be a struggle to persuade the people of the correctness of their respective positions. In the case of a struggle over constitutional interpretation as in a Supreme Court nomination, the public will be forced to consider the first principles of the Republic—in this case, the role of the judiciary and the proper method of interpreting its governing document. Citizens will thus vicariously enjoy some measure of the experience of the Framing of the Constitution, thus contributing to the Republic’s self-regeneration.

John O. McGinnis

George C. Dix Professor in Constitutional Law Northwestern University School of Law