WISCONSIN VOTERS ALLIANCE et al v. PENCE et al

Filing 4

MEMORANDUM re 2 MOTION for Preliminary Injunction filed by WISCONSIN VOTERS ALLIANCE, SONNY BORRELLI, RICHARD W KUCKSDORF, DEBBIE JACQUES, ARIZONA VOTER INTEGRITY ALLIANCE, WARREN PETERSON, DAIRE RENDON, MATTHEW DADICH, BRENDA SAVAGE, JOHN WOOD, JEFF L MURSAU, GEORGIA VOTERS ALLIANCE, BARON BENHAM, PENNSYLVANIA VOTERS ALLIANCE, LEAH HOOPES, MATTHEW MADDOCK, LYNIE STONE, WILLIAM T LIGON, RON HEUER, DEBI HAAS, BRANDON BEACH, ELECTION INTEGRITY FUND, DAVID STEFFEN by ARIZONA VOTER INTEGRITY ALLIANCE, BRANDON BEACH, BARON BENHAM, SONNY BORRELLI, MATTHEW DADICH, ELECTION INTEGRITY FUND, GEORGIA VOTERS ALLIANCE, DEBI HAAS, RON HEUER, LEAH HOOPES, DEBBIE JACQUES, RICHARD W KUCKSDORF, WILLIAM T LIGON, MATTHEW MADDOCK, JEFF L MURSAU, PENNSYLVANIA VOTERS ALLIANCE, WARREN PETERSON, DAIRE RENDON, BRENDA SAVAGE, DAVID STEFFEN, LYNIE STONE, WISCONSIN VOTERS ALLIANCE, JOHN WOOD. (Kaardal, Erick)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Wisconsin Voters Alliance, et al.,

Case No. ________

Plaintiffs,
v.
Vice President Michael Richard Pence, et al.,
Defendants.
Plaintiffs’ Memorandum in Support of Motion for Preliminary Injunctive Relief

TABLE OF CONTENTS
TABLE OF AUTHORITIES ........................................................................................................................ iv
INTRODUCTION ........................................................................................................................................... 1
BACKGROUND .............................................................................................................................................. 3
A.

Defendants, except the constitutionally-required state legislatures, are involved in postelection certification of Presidential votes and of Presidential electors or counting of
their ballots to elect the President and Vice President. ...................................................................... 3

B.

None of the Presidential Electors certified by the Governors of the Defendant States
received state legislative post-election certification; their votes should not be counted
by Congress and the Vice President on January 6, 2021. .................................................................. 7

C.

Federal and state court post-election Presidential election contests and recounts
preclude state legislative post-election certification of Presidential votes and
Presidential electors. ................................................................................................................................ 8
1. The U.S. Supreme Court and Florida Supreme Court decisions in Bush v. Gore are
examples of federal court and state court interference conflicting with a state
legislature’s Article II post-election certification prerogatives. .................................................. 8
2. The Defendant States have election contest or recount laws, which apply to
Presidential elections. ....................................................................................................................... 9
3. In 2020, approximately thirty post-election lawsuits are filed in Defendants States
regarding election official errors and improprieties. .................................................................... 9
4. In 2020, Texas sued Pennsylvania, Michigan, Wisconsin and Georgia in the U.S.
Supreme Court to adjudicate election irregularities and improprieties. .................................... 9

D.

The Defendants violate the Plaintiffs’ constitutionally-protected voting rights by
certifying Presidential electors who have not received state legislative post-election
certification and by counting their votes. ........................................................................................... 10

E.

This motion for preliminary injunction is filed to avoid a constitutional crisis............................ 11

ARGUMENT................................................................................................................................................... 12
I.

The D.C. Circuit applies a four-part test for granting a preliminary injunction. .......................... 13

II.

The Plaintiffs are likely to succeed on the merits. ............................................................................ 13
A. Federal law—3 U.S.C. §§ 5, 6, 15—and the state laws—Ariz. Rev. Stat. § 16-212
(B), Ga. Code Ann. § 21-2-499 (B), Mich. Comp. Laws. § 168.46, Wis. Stat. § 7.70
(5) (b) and 25 Pa. Cons. Stat. § 3166—are constitutionally unauthorized and they
violate voters’ rights to state legislative post-election certifications. ....................................... 14

1. Voter rights are guaranteed under Article II to the state legislatures’ postelection certifications of their votes and of Presidential electors. ..................................... 14
2. Article II’s imperative sentence regarding Presidential elections requires that
only the votes of Presidential electors who have received state legislative postelection certification count toward election of President and Vice President. ............... 15
3. 3 U.S.C. §§ 5, 6 and 15 fail to constitutionally guarantee state legislative postelection certifications of votes and of Presidential electors. .............................................. 16
4. Congress lacks Congressional authority to enact 3 U.S.C. §§ 5, 6 and 15 which
preempt constitutionally-mandated state legislative post-election certification of
Presidential votes and of Presidential electors, violating voting rights related
thereto. ....................................................................................................................................... 18
a. The textualist argument supports that the state legislatures, not
Governors must conduct post-election certification of Presidential votes
and of post-election certification of Presidential electors. ....................................... 18
b. The textual argument supports that 3 U.S.C. §§ 5, 6 and 15 are
unconstitutional.............................................................................................................. 22
c. Structuralist arguments also support that 3 U.S.C. §§ 5, 6 and 15 are
unconstitutional.............................................................................................................. 26
1) The Anti-Congress Principle ................................................................................. 27
2) The Anti-Governors Principle .............................................................................. 28
3) The Pro-State Legislatures Principle .................................................................... 29
4) Conclusion ............................................................................................................... 30
5. The Defendant States violate Article II by their respective constitution and
their respective state laws—Ariz. Rev. Stat. § 16-212 (B), Ga. Code Ann. § 212-499 (B), Mich. Comp. Laws. § 168.46, Wis. Stat. § 7.70 (5) (b) and 25 Pa.
Cons. Stat. § 3166—by cancelling state legislatures out of post-election
certifications of Presidential votes and of Presidential electors. ....................................... 31
a. The Arizona Constitution and laws do not require state legislative postelection certification of Presidential electors so their votes can be
constitutionally counted by the federal Defendants—violating voters’
rights. ............................................................................................................................... 32
b. The Georgia Constitution and laws do not require state legislative postelection certification of Presidential electors so their votes can be
constitutionally counted by the federal Defendants—violating voters’
rights. ............................................................................................................................... 33

ii

c. The Michigan Constitution and laws do not require state legislative postelection certification of Presidential electors so their votes can be
constitutionally counted by the federal Defendants—violating voters’
rights. ............................................................................................................................... 33
d. The Pennsylvania Constitution and laws do not require state legislative
post-election certification of Presidential electors so their votes can be
constitutionally counted by the federal Defendants—violating voters’
rights. ............................................................................................................................... 34
e. The Wisconsin Constitution and laws do not require state legislative
post-election certification of Presidential electors so their votes can be
constitutionally counted by the federal Defendants—violating voters’
rights. ............................................................................................................................... 35
6. The Presidential post-election court proceedings—like Bush v. Gore, the Texas
original action and the thirty post-election lawsuits in Defendant States—are in
constitutional error and unnecessarily politicize the federal and state courts. ................ 36
III. The Plaintiffs have standing as voters because the Defendants are violating their voting
rights to state legislative post-election certifications of their votes and of Presidential
electors and to only the votes of Presidential electors so certified being counted toward
the election of President and Vice President. .................................................................................... 36
IV.

The Plaintiffs are likely to suffer irreparable harm in the absence of preliminary relief. ............ 42

V.

The balance of equities and the public interest tips in the Plaintiffs’ favor. ................................. 43

CONCLUSION ............................................................................................................................................... 45

iii

TABLE OF AUTHORITIES
Cases
Aamer v. Obama, 742 F.3d 1023 (D.C.Cir.2014) ........................................................................................... 13
Anderson v. Celebrezze, 460 U.S. 780 (1983).................................................................................................... 41
Arizona v. California, 589 U. S. ___ (Feb. 24, 2020) .................................................................................... 10
Arkansas Dairy Co-op Ass'n, Inc. v. U.S. Dep't of Agric., 573 F.3d 815 (D.C. Cir. 2009) ........................... 43
Baker v. Carr, 369 U.S. 186 (1962).................................................................................................................. 37
*Baten v. McMaster, 967 F.3d 345 (4th Cir. 2020) .................................................................................. 14, 37
Burdick v. Takushi, 504 U.S. 428 (1992) ......................................................................................................... 39
*Bush v. Gore, 531 U.S. 98 (2000) ...............................................................................................................8, 36
Clapper v. Amnesty Int'l USA, 568 U.S. 398 (2013) ....................................................................................... 36
Davis v. Pension Ben. Guar. Corp., 571 F.3d 1288 (D.C.Cir.2009) ................................................................ 13
Dumonde v. U.S., 87 Fed. Cl. 651 (Fed. Cl. 2009) ......................................................................................... 39
Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985)................................................... 18
*Gill v. Whitford, 138 S. Ct. 1916 (2018) ........................................................................................... 37, 38, 40
Guttenberg v. Emery, 26 F.Supp.3d 88 (D.D.C. 2014) ................................................................................... 42
Johnson v. FCC, 829 F.2d 157 (D.C. Cir. 1987) ............................................................................................. 38
Lane County v. Oregon, 74 U.S. 71 (1869) ........................................................................................................ 18
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ......................................................................................... 36
Marbury v. Madison, 1 Cranch 137, 5 U.S. 137 (1803) .................................................................................. 39
Mazurek v. Armstrong, 520 U.S. 968 (1997).................................................................................................... 13
McCulloch v. Maryland, 17 U.S. 316 (1819) ..................................................................................................... 18
Mdewakanton Sioux Indians of Minn. v. Zinke, 255 F.Supp.3d 48 (D.D.C. 2017) ....................................... 42
New York v. U.S., 505 U.S. 144 (1992) .......................................................................................................... 18
Newman v. U.S. of America ex rel Frizzell, 238 U.S. 537 (1915) ......................................................... 2, 11, 44

iv

Perez v. United States, 402 U.S. 146 (1971) ..................................................................................................... 18
Purcell v. Gonzalez, 549 U.S. 1 (2006) .............................................................................................................. 38
Reynolds v. Sims, 377 U.S. 533 (1964).............................................................................................................. 38
Sherley v. Sebelius, 644 F.3d 388 (D.C.Cir.2011) ............................................................................................ 13
Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014) ................................................................................ 37
Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997) ....................................................................... 39
United States v. Darby, 312 U.S. 100 (1941) .................................................................................................... 18
Wash. Metro. Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841 (D.C.Cir.1977) ............................ 13
Wesberry v. Sanders, 376 U.S. 1 (1964) ............................................................................................................. 39
Winter v. NRDC, Inc., 555 U.S. 7 (2008)................................................................................................. 42, 43
Constitutional Provisions
U.S. Constitution, Article I ................................................................................................................ 23, 24, 26
U.S. Constitution, Article II ................................................................................................................... passim
U.S. Constitution, Article III ................................................................................................................... 36, 37
Georgia Constitution of 1798 (http://founding.com/founders-library/governmentdocuments/american-state-and-local-government-documents/state-constitutions/georgiaconstitution-of-1798/) (last visited: December 18, 2020) ......................................................................7, 29
Statutes
3 U.S.C. § 5, 6 and 15 .............................................................................................................................. passim
Ariz. Rev. Stat. § 16-212 (B) ................................................................................................................... passim
Ariz. Rev. Stat. § 16-672..............................................................................................................................9, 36
D.C. Code § 16-3501 ...................................................................................................................... 2, 11, 43, 44
Ga. Code Ann. § 21-2-499 (B) ............................................................................................................... passim
Ga. Code Ann.§ 21-2-521 ...........................................................................................................................9, 36
Mich. Comp. Laws § 168.46 ................................................................................................................... passim
Mich. Comp. Laws § 168.862 .....................................................................................................................9, 36

v

25 Pa. Cons. Stat. § 3166 ....................................................................................................................... passim
25 Pa. Cons. Stat. § 3312 ...........................................................................................................................9, 36
25 Pa. Cons. Stat. § 3351 ...........................................................................................................................9, 36
Wis. Stat. § 7.70 (5) (b) ............................................................................................................................ passim
Wis. Stat. § 9.01 ............................................................................................................................................9, 36

vi

INTRODUCTION
The Plaintiffs move for a preliminary injunction enjoining the federal Defendants and state
Defendants from Pennsylvania, Michigan, Wisconsin, Georgia and Arizona (Defendant States) from
certifying Presidential electors and counting their votes where the Presidential electors did not
receive state legislative post-election certification as required by Article II.
Article II contains an imperative sentence regarding Presidential elections that state
legislatures, every four years, may direct the manner of state appointment of Presidential electors:
He shall hold his office during the term of four years, and, together with the Vice
President, chosen for the same term, be elected, as follows: 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.
Specifically, the challenged federal and state laws1 requiring Governor post-election certification of
Presidential electors, currently considered as having full legal force and effect, have the legal
consequence that the state legislatures, every four years, “may” NOT “direct” the “manner” of
“appointing” the Presidential electors. Under this one constitutional imperative sentence, the state
legislatures, not the Governors, have the constitutional prerogative to post-election certification.
Absent the state legislative post-election certification of the Presidential electors, the federal
Defendants cannot constitutionally count the votes of the Presidential electors from the Defendant
States.
The Plaintiffs are voters who have constitutionally-protected voting rights to state legislative
post-election certification regarding their votes for Presidential electors and constitutionallyprotected voting rights that only the votes of Presidential electors who have received state legislative

1

3 U.S.C. § 5, 6 and 15 and Ariz. Rev. Stat. § 16-212 (B), Ga. Code Ann.§ 21-2-499 (B), Mich.
Comp. Laws § 168.46, Wis. Stat. § 7.70 (5) (b) and 25 Pa. Cons. Stat. § 3166.
1

post-election certification be counted by the federal Defendants to elect the President and Vice
President.
A preliminary injunction is necessary to avoid a constitutional crisis. The constitutional crisis
may be caused, after the January 20, 2021 inauguration of the President and Vice President, by a
Presidential candidate or Presidential electors filing a post-inaugural civil action for writ of quo
warranto to oust the President and Vice President.2 The U.S. District Court has jurisdiction over a
post-inaugural ouster of the United States President and Vice President. Specifically, D.C. Code §
16-3501, et seq., authorizes the U.S. District Court for the District of Columbia, in proper cases,
instituted by proper officers or persons, to post-inaugural ouster of national officers of the United
States including the President and Vice President of the United States. Newman v. U.S. of America ex
rel Frizzell, 238 U.S. 537 (1915).
The Presidential candidate or Presidential electors could make two constitutional arguments
against the votes the federal Defendants counted in the election of President and Vice President.
First, U.S.C. § 5, 6 and 15 are unconstitutional because Congress does not have constitutional
authority to assign post-election certification to the Governors as executives of the Defendant States
and to direct Congress and the Vice President to count votes of Presidential electors who have not
received state legislative post-election certification. Second, the Defendant States’ state legislatures
have unconstitutionally acquiesced to the federal laws by enacting state laws transferring postelection certification from the state legislatures to state executive branch officials: Ariz. Rev. Stat. §
16-212 (B) (Arizona Secretary of State), Ga. Code Ann.§ 21-2-499 (B) (Georgia Secretary of State
and Governor), Mich. Comp. Laws § 168.46 (Michigan State Board of Canvassers and Governor),

2

The Epoch Times, “Electors in 7 states cast dueling votes for Trump” at
https://www.theepochtimes.com/mkt_app/electors-in-7-states-cast-dueling-votes-fortrump_3620059.html (last visited: Dec. 18, 2020).
2

Wis. Stat. § 7.70 (5) (b) (Wisconsin Elections Commission); and 25 Pa. Cons. Stat. § 3166 (Secretary
of Commonwealth and Governor).
The Plaintiffs agree with these constitutional arguments, but disagree about the wisdom of
using the post-inaugural ouster procedure to litigate them. Waiting for the post-inaugural ouster
creates an unnecessary constitutional crisis. Instead, the post-inaugural ouster should be the option
of last resort.
Plaintiffs’ motion for preliminary injunction is a better vehicle for this Court to adjudicate
these constitutional claims in a timely way so that the constitutional provisions of the U.S.
Constitution regarding Presidential electors, Article II and the Twelfth Amendment, are followed
and a President and a Vice President are lawfully inaugurated on January 20, 2021.
BACKGROUND
A.

Defendants, except the constitutionally-required state legislatures, are involved in
post-election certification of Presidential votes and of Presidential electors or counting
of their ballots to elect the President and Vice President.
Under 3 U.S.C. §§ 5, 6 and 15, each of the Defendants, except the state legislative leaders

and their state legislatures, have a role to play in state post-election certification of Presidential votes,
state post-election certification of a state’s Presidential electors or counting of the Presidential
Electors’ votes. Under 3 U.S.C. § 15, “Congress shall be in session on the sixth day of January
succeeding every meeting of electors. The Senate and House of Representatives shall meet in the
Hall of the House of Representatives at the hour of 1 o’clock in the afternoon on that day.” Under 3
U.S.C. § 15, Vice President Michael Richard Pence is the presiding officer on January 6, 2021: “and
the President of the Senate shall be their presiding officer.”
Vice President Pence, the U.S. Senate and the U.S. House of Representatives are Defendants
who presume under 3 U.S.C. §§ 5 and 6, that each state’s Presidential elector votes can be counted

3

because they are designated by the Governor of each Defendant State —even without state
legislative post-election certification. 3 U.S.C. § 5 provides:
If any State shall have provided, by laws enacted prior to the day fixed for the
appointment of the electors, for its final determination of any controversy or contest
concerning the appointment of all or any of the electors of such State, by judicial or
other methods or procedures, and such determination shall have been made at least
six days before the time fixed for the meeting of the electors, such determination made
pursuant to such law so existing on said day, and made at least six days prior to said
time of meeting of the electors, shall be conclusive, and shall govern in the counting
of the electoral votes as provided in the Constitution, and as hereinafter regulated, so
far as the ascertainment of the electors appointed by such State is concerned.
3 U.S.C. § 6 provides:
It shall be the duty of the executive of each State, as soon as practicable after the
conclusion of the appointment of the electors in such State by the final ascertainment,
under and in pursuance of the laws of such State providing for such ascertainment, to
communicate by registered mail under the seal of the State to the Archivist of the
United States a certificate of such ascertainment of the electors appointed, setting
forth the names of such electors and the canvass or other ascertainment under the
laws of such State of the number of votes given or cast for each person for whose
appointment any and all votes have been given or cast; and it shall also thereupon be
the duty of the executive of each State to deliver to the electors of such State, on or
before the day on which they are required by section 7 of this title to meet, six
duplicate-originals of the same certificate under the seal of the State; and if there shall
have been any final determination in a State in the manner provided for by law of a
controversy or contest concerning the appointment of all or any of the electors of
such State, it shall be the duty of the executive of such State, as soon as practicable
after such determination, to communicate under the seal of the State to the Archivist
of the United States a certificate of such determination in form and manner as the
same shall have been made; and the certificate or certificates so received by the
Archivist of the United States shall be preserved by him for one year and shall be a
part of the public records of his office and shall be open to public inspection; and the
Archivist of the United States at the first meeting of Congress thereafter shall transmit
to the two Houses of Congress copies in full of each and every such certificate so
received at the National Archives and Records Administration.
The Plaintiffs claim that the Federal Defendants’ presumption is constitutionally incorrect;
under Article II’s imperative sentence regarding Presidential elections, Defendants Vice President
Pence, the U.S. House of Representatives and the United States Senate can only open up and count
Presidential elector ballots if the state legislature has affirmatively voted post-election to certify the
Presidential electors; otherwise, the votes of the Presidential electors cannot be counted. The
4

Plaintiffs claim that the Vice President and U.S. Congress act unconstitutionally in this Presidential
election and future Presidential elections when they count votes of Presidential electors where the
respective state legislature has not affirmatively voted in favor of post-election certification.
Similarly, the Defendant States’ executives, Governor Tom Wolf of Pennsylvania, Governor
Gretchen Whitmer of Michigan, Governor Tony Evers of Wisconsin, Governor Brian Kemp of
Georgia, and Governor Doug Ducey of Arizona under 3 U.S.C. § 6 and their respective state’s laws,
have designated the Presidential electors based on the assumption that state executive branch
certification is all that is required.
But, Governor Tom Wolf of Pennsylvania, Governor Gretchen Whitmer of Michigan,
Governor Tony Evers of Wisconsin, Governor Brian Kemp of Georgia, and Governor Doug of
Arizona are constitutionally mistaken because the designation by the Governor of each Defendant
State cannot cure that the Presidential electors are without state legislative post-election certification.
Until the state legislature certifies the Presidential votes and the Presidential electors, the respective
Governor’s designation under 3 U.S.C. § 6 and their respective state’s laws have no legal effect.
Absent the state legislative post-election certification required by Article II’s imperative sentence
regarding Presidential elections, the Governor’s designation of Presidential electors has no legal
effect because their votes cannot be counted by the Vice President, U.S. Senate and U.S. House of
Representatives.
Finally, Article II’s imperative sentence regarding Presidential elections requires the
Defendants’ state legislative leaders to act to vote on post-election certification of the Presidential
electors. But, instead, the state legislatures unconstitutionally defer because of their respective state
laws which are a perpetual and wholesale delegation of post-election certification to state executive
branch officials—as has been done in Ariz. Rev. Stat. § 16-212 (B) (Arizona Secretary of State), Ga.
Code Ann.§ 21-2-499 (B) (Georgia Secretary of State and Governor), Mich. Comp. Laws § 168.46

5

(Michigan State Board of Canvassers and Governor), Wis. Stat. § 7.70 (5) (b) (Wisconsin Elections
Commission); and 25 Pa. Cons. Stat. § 3166 (Secretary of Commonwealth and Governor).
The Plaintiffs claim that Article II’s imperative sentence regarding Presidential elections, and
its non-delegation doctrine, permanently left it to the state legislatures to “direct” post-election
certification of Presidential electors, not to delegate post-election certification, perpetually and in a
wholesale fashion, to state executive branch officials as a ministerial duty.
In this way, the Defendant States’ legislative leaders, including Speaker Bryan Carter of the
Pennsylvania House of Representatives, Senate Majority Leader Jake Corman of the Pennsylvania
Senate, Speaker Lee Chatfield of the Michigan House of Representatives, Senate Majority Leader
Mike Shirkey of the Michigan Senate, Speaker Robin Vos of the Wisconsin State Assembly, Senate
Majority Leader Howard Marklein of the Wisconsin Senate, Speaker David Ralston of the Georgia
House of Representatives, Senate President Pro Tempore Butch Miller of the Georgia Senate,
Speaker Russell Bowers of the Arizona House of Representatives, and Senate Majority Leader Rick
Gray of the Arizona Senate are violating their duties under the federal Constitution by not voting on
post-election certification of the Presidential electors so their votes can constitutionally count.
State legislative post-election certification of Presidential electors is a part of federallyguaranteed voting rights.
Further, the state constitutions of the Defendant States fail to require the state legislature to
meet for post-election certification of the Presidential electors in violation of state legislative
constitutional duties under Article II’s imperative sentence regarding Presidential elections of the
U.S. Constitution. Arizona’s, Georgia’s and Pennsylvania’s Constitutions have the state legislature
adjourned until January 2021 subject to special sessions called by the Governor or state legislature.
Arizona Const.; Georgia Const.; Pennsylvania Const. Michigan’s and Wisconsin’s Constitutions
permit the state legislature to be in session, but do not require a joint session of the state legislature

6

to affirmatively vote for post-election certification of Presidential electors. Michigan Const.;
Wisconsin Const. By contrast, for example, the Georgia Constitution of 1798, Article IV, section 2,
subsequently repealed, had clear procedures for state legislative certification of Presidential electors:
Sec. 2. All elections by the general assembly shall be by joint ballot of both branches
of the legislature; and when the senate and house of representatives unite for the
purpose of electing, they shall meet in the representative chamber, and the president
of the senate shall in such cases preside, receive the ballots, and declare the person or
persons elected. In all elections by the people the electors shall vote viva voce until the
legislature shall otherwise direct.3
Each voter who votes—distinguishable from those who don’t—has a constitutionallyprotected interest in state legislative post-election certification of their vote and of their state’s
Presidential electors. The federal Defendants violate those voting rights by counting ballots of
Presidential electors without the constitutionally-required state legislative post-election certifications.
The state Defendants violate those voting rights by not complying with constitutionally-required
state legislative post-election certifications of Presidential votes and of Presidential electors.
B.

None of the Presidential Electors certified by the Governors of the Defendant States
received state legislative post-election certification; their votes should not be counted
by Congress and the Vice President on January 6, 2021.
On December 14, the Presidential electors for Biden and Trump met and voted in their

Defendant States. The Presidential electors for Biden in the Defendant States are certified by state
executive branch officials under 3 U.S.C. § 6 and the respective states’ election certification laws.
Ariz. Rev. Stat. § 16-212 (B) (Arizona Secretary of State), Ga. Code Ann.§ 21-2-499 (B) (Georgia
Secretary of State and Governor), Mich. Comp. Laws § 168.46 (Michigan State Board of Canvassers
and Governor), Wis. Stat. § 7.70 (5) (b) (Wisconsin Elections Commission); and 25 Pa. Cons. Stat.
§ 3166 (Secretary of Commonwealth and Governor). The Presidential electors for Trump are not

Georgia Constitution of 1798 (http://founding.com/founders-library/governmentdocuments/american-state-and-local-government-documents/state-constitutions/georgiaconstitution-of-1798/) (last visited: December 18, 2020).
3

7

certified in this way. But, neither the Presidential electors for Biden nor the Presidential electors for
Trump in the Defendant States received a state legislative post-election affirmative vote for
certification. The Presidential electors for Biden in the Defendant States voted for Biden as
President and Harris as Vice President.4 The Presidential electors for Trump in the Defendant States
voted for Trump as President and Pence as Vice President. But, under Article II, none of these
votes count because no Presidential electors have received state legislative post-election certification.
C.

Federal and state court post-election Presidential election contests and recounts
preclude state legislative post-election certification of Presidential votes and
Presidential electors.
Federal and state court post-election Presidential election contests and recounts preclude the

state legislatures’ post-election certifications of Presidential votes and of Presidential electors. Under
the Plaintiffs’ interpretation of Article II, pre-election judicial proceedings are not a constitutional
problem, but judicial post-election Presidential election contests and recounts conflict with the state
legislatures’ post-election certifications under Article II.
1. The U.S. Supreme Court and Florida Supreme Court decisions in Bush v. Gore are
examples of federal court and state court interference conflicting with a state
legislature’s Article II post-election certification prerogatives.
The court decisions in Bush v. Gore reflect examples of federal court and state court
proceedings conflicting with a state legislature’s Article II post-election certification prerogatives.
On December 12, 2000, the U.S. Supreme Court issued a decision in Bush v. Gore, 531 U.S. 98
(2000), settling a state court recount dispute in Florida's 2000 presidential election between George
W. Bush and Al Gore. The U.S. Supreme Court decision allowed the previous vote certification
made by Florida Secretary of State Katherine Harris to stand for George W. Bush, who thereby won

4

The Epoch Times, “Electors in 7 states cast dueling votes for Trump” at
https://www.theepochtimes.com/mkt_app/electors-in-7-states-cast-dueling-votes-fortrump_3620059.html (last visited: Dec. 18, 2020).
8

Florida's 25 electoral votes—and the Presidential election. Neither the court decisions, nor Florida
law, included the Florida state legislature conducting post-election certifications of the Presidential
vote and of the Presidential electors.
2. The Defendant States have election contest or recount laws, which apply to
Presidential elections.
Similarly, the Defendant States have election contest or recount laws, which apply to
Presidential elections—like Florida’s laws did in 2000: Ariz. Rev. Stat. § 16-672; Ga. Code Ann.§ 212-521; Mich. Comp. Laws § 168.862; Wis. Stat. § 9.01; and 25 Pa. Cons. Stat. § 3351. The
Defendant States’ laws do not provide for the state legislatures to engage in post-election
certifications. Interestingly, the Pennsylvania laws have a state legislative post-election certification
process for its Governor and Lieutenant Governor elections. 25 Pa. Cons. Stat. § 3312, et seq.
3. In 2020, approximately thirty post-election lawsuits are filed in Defendants States
regarding election official errors and improprieties.
Approximately thirty post-election lawsuits regarding Pennsylvania, Michigan, Wisconsin,
Georgia and Arizona election official errors and improprieties were filed.5 The Complaint and its
citations to the appendix detail allegations of Pennsylvania, Michigan, Wisconsin, Georgia and
Arizona election official errors and improprieties. In Defendants’ states, voter allegations exists
which are the election officials’ errors and improprieties exceed the razor-thin margins of
Presidential contests.
4. In 2020, Texas sued Pennsylvania, Michigan, Wisconsin and Georgia in the U.S.
Supreme Court to adjudicate election irregularities and improprieties.
On December 7, 2020, Texas filed an original action in the U.S. Supreme Court, Case No.
22O155, against Pennsylvania, Michigan, Wisconsin and Georgia for election irregularities and

5

See “Postelection lawsuits related to the 2020 United States presidential election,” found at
https://en.wikipedia.org/wiki/Postelection_lawsuits_related_to_the_2020_United_States_presidential_election#
Wood_v._Raffensperger (last visited: Dec. 15, 2020).
9

improprieties. On December 9, Missouri and 16 other states filed a motion for leave to file an
amicus curiae brief in support of Texas. On December 10, U.S. Representative Mike Johnson and
105 other members submitted a motion for leave to file amicus brief in support of Texas. On
December 11, the U.S. Supreme Court dismissed the original action in a text order:
The State of Texas’s motion for leave to file a bill of complaint is denied for lack of
standing under Article III of the Constitution. Texas has not demonstrated a judicially
cognizable interest in the manner in which another State conducts its elections. All
other pending motions are dismissed as moot. Statement of Justice Alito, with whom
Justice Thomas joins: In my view, we do not have discretion to deny the filing of a bill
of complaint in a case that falls within our original jurisdiction.
See Arizona v. California, 589 U. S. ___ (Feb. 24, 2020) (Thomas, J., dissenting). I would
therefore grant the motion to file the bill of complaint but would not grant other relief,
and I express no view on any other issue.6
D.

The Defendants violate the Plaintiffs’ constitutionally-protected voting rights by
certifying Presidential electors who have not received state legislative post-election
certification and by counting their votes.
The Defendants violate the Plaintiffs’ constitutionally-protected voting rights by recognizing

Presidential electors who have not received state legislative post-election certification and by
counting their votes. Under Article II’s imperative sentence regarding Presidential elections,
Defendants can only certify Presidential electors and count their votes if they have received state
legislative post-election certification—which none have.
The federal laws regarding the Presidential electors, 3 U.S.C. §§ 5, 6 and 15, are
constitutionally unauthorized. Article II and the Twelfth Amendment of the Constitution establish a
non-delegable process where at least state legislative post-election certification of the state’s
Presidential electors is constitutionally required for Presidential elector votes to be counted in the
election of the President and Vice President. In contradiction, the federal laws, 3 U.S.C. §§ 5, 6 and

6

Plaintiffs agree that the State of Texas lacked standing, but the original action itself begs the
question, “Is the U.S. Supreme Court the final adjudicator for certification of Presidential electors?”
The Plaintiffs’ answer is no; the respective state legislatures are the final determiner of certification
of Presidential electors—and, in a non-delegable way.
10

15, establish a different process where Presidential electors are designated by the Governor of each
Defendant State without state legislative post-election certification—and, then, their votes are
counted to elect the President and Vice President.
The Defendant States have legally acquiesced to the federal laws by enacting statutes
transferring post-election certification from the state legislatures to state executive branch officials:
Ariz. Rev. Stat. § 16-212 (B) (Arizona Secretary of State), Ga. Code Ann.§ 21-2-499 (B) (Georgia
Secretary of State and Governor), Mich. Comp. Laws § 168.46 (Michigan State Board of Canvassers
and Governor), Wis. Stat. § 7.70 (5) (b) (Wisconsin Elections Commission); and 25 Pa. Cons. Stat.
§ 3166 (Secretary of Commonwealth and Governor). These state laws also violate Article II which
establishes the state legislative prerogative to post-election certification of Presidential electors.
E.

This motion for preliminary injunction is filed to avoid a constitutional crisis.
The Plaintiffs file this complaint to avoid a constitutional crisis that would be involved in a

post-inaugural ouster of the United States President and Vice President under D.C. Code § 16-3501,
et seq., which authorizes the U.S. District Court for the District of Columbia, in proper cases,
instituted by proper officers or persons, to oust national officers of the United States post-election,
including the President and Vice President of the United States. Newman v. U.S. of America ex rel.
Frizzell, 238 U.S. 537 (1915).
Instead, to avoid that post-inaugural constitutional crisis, the Plaintiffs as voters file this
preliminary injunction motion against federal officials in the District of Columbia and Governors
and state legislative leaders in Arizona, Georgia, Michigan, Pennsylvania and Wisconsin (“Defendant
States”) requiring a constitutionally-compliant process for state-by-state post-election certification of
Presidential electors and counting of their votes for the November 3, 2020 Presidential election and
future elections.

11

ARGUMENT
The Plaintiffs as voters file this motion for preliminary injunction against federal officials in
the District of Columbia and Governors and state legislative leaders in Arizona, Georgia, Michigan,
Pennsylvania and Wisconsin (“Defendant States”) seeking a constitutionally-compliant process for
state legislative post-election certification of Presidential electors and counting of their votes prior to
the Presidential and Vice Presidential inaugural on January 20, 2021.
Under Article II's imperative sentence regarding Presidential elections, Congress lacks legal
authority to enact laws interfering with the state-by-state state legislative post-election certification of
Presidential electors as it has done with 3 U.S.C. §§ 5, 6 and 15. Analogously, under Article II’s
imperative sentence regarding Presidential elections, the state legislatures lack legal authority to enact
state laws which are a perpetual and wholesale delegation of post-election certification to state
executive branch officials—as they have done in Ariz. Rev. Stat. § 16-212 (B) (Arizona Secretary of
State), Ga. Code Ann.§ 21-2-499 (B) (Georgia Secretary of State and Governor), Mich. Comp. Laws
§ 168.46 (Michigan State Board of Canvassers and Governor), Wis. Stat. § 7.70 (5) (b) (Wisconsin
Elections Commission); and 25 Pa. Cons. Stat. § 3166 (Secretary of Commonwealth and
Governor). Article II’s imperative sentence regarding Presidential elections, and its non-delegation
doctrine, left it to the state legislatures to “direct” post-election certification of Presidential electors,
not to delegate post-election certification, perpetually and in a wholesale fashion, to state executive
branch officials as a ministerial duty. Under Article II’s imperative sentence regarding Presidential
elections, if there is no state legislative post-election certification of Presidential electors in the
Defendant States, then those Defendant States’ Presidential electors’ votes, not so certified, cannot

12

be counted by the federal Defendants for the election of President and Vice President. So, the
preliminary injunction should issue to require constitutional compliance.7
I.

The D.C. Circuit applies a four-part test for granting a preliminary injunction.
A party seeking a preliminary injunction must establish (1) that he is likely to succeed on the

merits, (2) that he is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the
balance of equities tips in his favor, and (4) that an injunction is in the public interest.” Aamer v.
Obama, 742 F.3d 1023, 1038 (D.C.Cir.2014) (quoting Sherley v. Sebelius, 644 F.3d 388, 392
(D.C.Cir.2011)) (emphasis in text deleted). A preliminary injunction “is an extraordinary and drastic
remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of
persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (quoting 11A C. Wright, A. Miller, & M.
Kane, Federal Practice And Procedure § 2948 (2d ed.1995)) (emphasis in original).
II.

The Plaintiffs are likely to succeed on the merits.
The Plaintiffs are likely to succeed on the merits. The D.C. Circuit has, in the past, followed

the “sliding scale” approach to success on the merits, where “a court, when confronted with a case
in which the other three factors strongly favor interim relief may exercise its discretion to grant a
stay if the movant has made a substantial case on the merits.” Wash. Metro. Area Transit Comm'n v.
Holiday Tours, Inc., 559 F.2d 841, 843 (D.C.Cir.1977). Under the sliding scale approach, “if the
movant makes a very strong showing of irreparable harm and there is no substantial harm to the
nonmovant, then a correspondingly lower standard can be applied for likelihood of success.” Davis
v. Pension Ben. Guar. Corp., 571 F.3d 1288, 1292 (D.C.Cir.2009).

7

For a review of the constitutional convention’s deliberations on selecting the president, see Neal R.
Peirce and Lawrence D. Longley, The People’s President: The Electoral College in American History and the
Direct Vote Alternative (1968; New Haven, 1981) at 10-30.
13

A.

Federal law—3 U.S.C. §§ 5, 6, 15—and the state laws—Ariz. Rev. Stat. § 16-212
(B), Ga. Code Ann. § 21-2-499 (B), Mich. Comp. Laws. § 168.46, Wis. Stat. §
7.70 (5) (b) and 25 Pa. Cons. Stat. § 3166—are constitutionally unauthorized
and they violate voters’ rights to state legislative post-election certifications.

The plaintiffs have voting rights under Article II guaranteeing state legislative post-election
certification of their votes and of Presidential electors. See Baten v. McMaster, 967 F.3d 345, 352–53
(4th Cir. 2020) (voters who vote in Presidential elections have standing on claims of government
causing disenfranchisement). 3 U.S.C. §§ 5, 6, 15, Ariz. Rev. Stat. § 16-212 (B), Ga. Code Ann.§ 212-499 (B), Mich. Comp. Laws § 168.46, Wis. Stat. § 7.70 (5) (b) and 25 Pa. Cons. Stat. § 3166 are
constitutionally unauthorized. The federal and state laws violate voters’ rights by preempting state
legislative post-election certification of their Presidential votes and post-election certification of the
Presidential electors. 3 U.S.C. §§ 5, 6, 15 also unconstitutionally allow counting of votes of
Presidential electors who have not received the constitutionally-required state legislative postelection certification.
1.

Voter rights are guaranteed under Article II to the state legislatures’ postelection certifications of their votes and of Presidential electors.

Article II guarantees to voters that the state legislature will vote on post-election certification
of votes and post-election certification of Presidential electors and that only ballots of legislativelycertified Presidential electors will be counted for the election of President and Vice President. See
Baten v. McMaster, 967 F.3d at 352–53 (4th Cir. 2020). It is part of the social contract embedded in
the Constitution.
Specifically, Article II provides that the state legislature—not Congress, nor the
Governors—shall be the deciding body for Presidential electors:
He shall hold his office during the term of four years, and, together with the Vice
President, chosen for the same term, be elected, as follows: 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

14

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.
Under Article II and the Tenth Amendment, the state legislatures’ power to determine the manner
of appointment of Presidential electors includes the power of post-election certification. Moreover,
the state legislatures’ choice for elections as the manner to appoint Presidential electors does not
abrogate nor diminish the state legislatures’ constitutional obligations to conduct post-election
certification of their respective Presidential electors.
2.

Article II’s imperative sentence regarding Presidential elections requires that
only the votes of Presidential electors who have received state legislative postelection certification count toward election of President and Vice President.

The purpose of Article II’s imperative sentence regarding Presidential elections is for state
legislatures to certify voters’ Presidential votes in order to certify Presidential electors who cast
ballots for President and Vice President—which are opened and counted by the federal Defendants.
The voters in the Presidential elections are constitutionally-guaranteed that the state legislature, after
the election, will certify their vote and, based on the Presidential vote returns, certify the Presidential
electors. All Presidential election contests are to be heard by the state legislatures—not the federal
courts nor the state courts. The constitutional protection of the state legislatures’ constitutional
prerogatives over selection of Presidential electors is that the Federal Defendants can only count the
votes of the Presidential electors who have state legislative post-election certification; otherwise,
constitutionally, the votes of Presidential electors without state legislative post-election certification
do not count.
3 U.S.C. §§ 5, 6, 15, Ariz. Rev. Stat. § 16-212 (B), Ga. Code Ann.§ 21-2-499 (B), Mich.
Comp. Laws § 168.46, Wis. Stat. § 7.70 (5) (b) and 25 Pa. Cons. Stat. § 3166 are also
constitutionally unauthorized because the Federal Defendants count votes of Presidential electors
who do not have state legislative post-election certification. The federal laws and state laws authorize

15

an unconstitutional method for electing the President and Vice President. Because the federal laws
are not constitutionally authorized, the threat of a post-inaugural ouster under D.C. Code 16-3501,
et seq., is legally imminent.
3.

3 U.S.C. §§ 5, 6 and 15 fail to constitutionally guarantee state legislative postelection certifications of votes and of Presidential electors.

3 U.S.C. §§ 5, 6 and 15 constitute significant federal regulation of the state appointment of
Presidential electors and counting their votes for President and Vice President. Meanwhile, these
federal laws fail to guarantee state legislative certifications of votes and of Presidential electors.
Sections 5 and 6 set a deadline for the state executive branch officials and judges of December 8,
2020, to determine election controversies as to appointment of electors and designates the Governor
of each state to communicate the appointment of the Presidential electors to the federal
government. Section 5 sets the deadline as six days before the Electors meet to vote which was
December 14, 2020:
If any State shall have provided, by laws enacted prior to the day fixed for the
appointment of the electors, for its final determination of any controversy or contest
concerning the appointment of all or any of the electors of such State, by judicial or
other methods or procedures, and such determination shall have been made at least
six days before the time fixed for the meeting of the electors, such determination made
pursuant to such law so existing on said day, and made at least six days prior to said
time of meeting of the electors, shall be conclusive, and shall govern in the counting
of the electoral votes as provided in the Constitution, and as hereinafter regulated, so
far as the ascertainment of the electors appointed by such State is concerned.
Section 6 designates the Governors, the executives of the states, to be the public officials to
exclusively communicate the list of Presidential electors and their votes to the federal government:
It shall be the duty of the executive of each State, as soon as practicable after the
conclusion of the appointment of the electors in such State by the final ascertainment,
under and in pursuance of the laws of such State providing for such ascertainment, to
communicate by registered mail under the seal of the State to the Archivist of the
United States a certificate of such ascertainment of the electors appointed, setting forth
the names of such electors and the canvass or other ascertainment under the laws of
such State of the number of votes given or cast for each person for whose appointment
any and all votes have been given or cast; and it shall also thereupon be the duty of the

16

executive of each State to deliver to the electors of such State, on or before the day on
which they are required by section 7 of this title to meet, six duplicate-originals of the
same certificate under the seal of the State; and if there shall have been any final
determination in a State in the manner provided for by law of a controversy or contest
concerning the appointment of all or any of the electors of such State, it shall be the
duty of the executive of such State, as soon as practicable after such determination, to
communicate under the seal of the State to the Archivist of the United States a
certificate of such determination in form and manner as the same shall have been
made; and the certificate or certificates so received by the Archivist of the United
States shall be preserved by him for one year and shall be a part of the public records
of his office and shall be open to public inspection; and the Archivist of the United
States at the first meeting of Congress thereafter shall transmit to the two Houses of
Congress copies in full of each and every such certificate so received at the National
Archives and Records Administration.
Section 15 contains procedures for the Vice President of the United States as President of
the Senate, the U.S. Senate and the U.S. House of Representatives to meet on January 6 following
the Presidential election and for counting the Presidential electors’ votes from the respective states.
There is nothing in section 15 stating that only the ballots of Presidential electors who have received
state legislative post-election certification will be counted:
Congress shall be in session on the sixth day of January succeeding every meeting of
the electors. The Senate and House of Representatives shall meet in the Hall of the
House of Representatives at the hour of 1 o'clock in the afternoon on that day, and
the President of the Senate shall be their presiding officer. Two tellers shall be
previously appointed on the part of the Senate and two on the part of the House of
Representatives, to whom shall be handed, as they are opened by the President of the
Senate, all the certificates and papers purporting to be certificates of the electoral votes,
which certificates and papers shall be opened, presented, and acted upon in the
alphabetical order of the States, beginning with the letter A; and said tellers, having
then read the same in the presence and hearing of the two Houses, shall make a list of
the votes as they shall appear from the said certificates; and the votes having been
ascertained and counted according to the rules in this subchapter provided, the result
of the same shall be delivered to the President of the Senate, who shall thereupon
announce the state of the vote, which announcement shall be deemed a sufficient
declaration of the persons, if any, elected President and Vice President of the United
States, and, together with a list of the votes, be entered on the Journals of the two
Houses.
Thus, none of these federal laws—3 U.S.C. §§ 5, 6 and 15—guarantee state legislative post-election
certification of Presidential electors before their votes are counted.

17

4.

Congress lacks Congressional authority to enact 3 U.S.C. §§ 5, 6 and 15 which
preempt constitutionally-mandated state legislative post-election certification
of Presidential electors, violating voting rights related thereto.

Two legal standards cover cases challenging Congress’s constitutional authority to enact
statutes. The first legal standard applies when the party claims an Act of Congress is not authorized
by one of the powers delegated to Congress in Article I of the Constitution. See, e.g., Perez v. United
States, 402 U.S. 146 (1971); McCulloch v. Maryland, 17 U.S. 316 (1819).
The second legal standard applies when the party claims an Act of Congress invades the
province of state sovereignty granted by an express constitutional provision or reserved by the
Tenth Amendment. See, e.g., Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528
(1985); Lane County v. Oregon, 74 U.S. 71 (1869). “If a power is delegated to Congress in the
Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States;
if a power is an attribute of state sovereignty reserved by the Tenth Amendment, it is necessarily a
power the Constitution has not conferred on Congress.” New York v. U.S., 505 U.S. 144, 156 (1992)
(citations omitted). It is in this sense that the Tenth Amendment “states but a truism that all is
retained which has not been surrendered.” United States v. Darby, 312 U.S. 100, 124 (1941).
The Plaintiffs here assert that the 3 U.S.C. §§ 5, 6, 15 is both constitutionally unauthorized
and 3 U.S.C. §§ 5, 6, 15 invades the state legislature’s power to post-election certifications of
Presidential votes and Presidential electors granted by Article II and reserved by the Tenth
Amendment. So, both legal standards apply.
a. The textualist argument supports that the state legislatures, not Governors must
conduct post-election certifications of Presidential votes and of Presidential
electors.
One Congressional researcher has defined judicial textualism:
Textualism is a mode of interpretation that focuses on the plain meaning of the text
of a legal document. Textualism usually emphasizes how the terms in the Constitution
would be understood by people at the time they were ratified, as well as the context in
18

which those terms appear. Textualists usually believe there is an objective meaning of
the text, and they do not typically inquire into questions regarding the intent of the
drafters, adopters, or ratifiers of the Constitution and its amendments when deriving
meaning from the text.8
The textualist argument supports that the state legislatures, not Governors, must conduct postelection certification of Presidential votes and post-election certification of Presidential electors.
The textualist argument in this memorandum is based on one sentence in Article II of the
U.S. Constitution. The sentence has eighty-five words. The constitutional sentence provides:
He shall hold his office during the term of four years, and, together with the Vice
President, chosen for the same term, be elected, as follows: 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 Plaintiffs claim, based on this sentence, that post-election certification of Presidential votes and
post-election certification of Presidential electors are state legislative decisions. In turn, the Plaintiffs
claim that 3 U.S.C. § 5, 6 and 15 and state laws (such as Ariz. Rev. Stat. § 16-212 (B), Ga. Code
Ann.§ 21-2-499 (B), Mich. Comp. Laws § 168.46, Wis. Stat. § 7.70 (5) (b) and 25 Pa. Cons. Stat. §
3166) eviscerating these state legislative prerogatives, every four years, are unconstitutional.
Several textualist interpretative keys open up the relevant meanings of the constitutional text
as interpreted by Plaintiffs. First, the constitutional sentence is an imperative sentence. Second, the
imperative sentence requires the election of President and Vice President every “four years.” Third,
every four years, the “state” appoints the Presidential electors. Fourth, every four years, “the
legislature may “direct” the “manner” of appointing.
The constitutional sentence is an imperative sentence requiring that the President and Vice
President “be elected” “every four years.” The sentence phrase “as follows” provides specific

8

Brandon J. Murrill, “Modes of Constitutional Interpretation” at 2, Congressional Research Service
(Mar. 15, 2018).
19

directions on how the Presidential election is to occur. This imperative sentence is an instruction to
all constitutional actors identified—President, Vice President, U.S Congress, Presidential electors,
states and state legislatures—and those not identified—Governors, federal judiciary and state
judiciaries.
The Plaintiffs focus on the imperative nature of the constitutional sentence to make their
texualist interpretation. To begin, the imperative sentence, in relevant part, requires that the all the
constitutionally-identified actors—President, Vice President, U.S Congress, Presidential electors,
states and state legislatures— conduct an election of President and Vice President every “four
years.” This interpretation can hardly be disputed since that is what the text says. And, ever since
its adoption, the United States has conducted, every four years, an election for President and Vice
President. Consistently, the challenged federal and state laws—3 U.S.C. § 5, 6 and 15 and Ariz. Rev.
Stat. § 16-212 (B), Ga. Code Ann.§ 21-2-499 (B), Mich. Comp. Laws § 168.46, Wis. Stat. § 7.70 (5)
(b) and 25 Pa. Cons. Stat. § 3166)—all presume a Presidential election every four years.
Next, the imperative constitutional section requires that, every four years, the “state”
appoints the Presidential electors. This interpretation also can also hardly be disputed since that is
what the text says. And, ever since its adoption, the states, every four years, have appointed
Presidential electors for the purpose of electing a President and Vice President. Consistently, the
challenged federal and state laws--3 U.S.C. § 5, 6 and 15 and Ariz. Rev. Stat. § 16-212 (B), Ga. Code
Ann.§ 21-2-499 (B), Mich. Comp. Laws § 168.46, Wis. Stat. § 7.70 (5) (b) and 25 Pa. Cons. Stat. §
3166)—presume that the states, every four years, appoint Presidential electors for the purpose of
electing a President and Vice President.
Finally, the imperative constitutional section requires that, every four years, “the legislature”
may “direct” the “manner” of appointing of the Presidential electors. Plaintiffs claim that it is this
aspect of the constitutional imperative sentence that is violated when the challenged federal and

20

state laws--3 U.S.C. § 5, 6 and 15 and Ariz. Rev. Stat. § 16-212 (B), Ga. Code Ann.§ 21-2-499 (B),
Mich. Comp. Laws § 168.46, Wis. Stat. § 7.70 (5) (b) and 25 Pa. Cons. Stat. § 3166)—legally
preclude state legislative post-election certification of Presidential votes and post-election
certification of Presidential electors. Plaintiffs claim that, every four years, “the legislature must be
involved in such post-election certification so that it may “direct” the “manner” of “appoint[ing]” of
the Presidential electors—as the constitutional imperative sentence requires.
To be sure, in the previous sentence of this memorandum, the “-ing” at the end of
“appoint[ing]” is in brackets because the word “appoint” is in the constitutional text not the word
“appointing.” To explain, please engage in a thought experiment sympathetic to Plaintiffs’
position. Substitute “engage in appointing” for “appoint” in the constitutional sentence. Such
substitution does not change the meaning of that part of the constitutional sentence. The phrase
“every four years, the state shall appoint” has the same meaning as “every four years, the state shall
engage in appointing.” However, such a substitution does confirm Plaintiffs’ constitutional
argument. The substitution does not contradict any other part of the constitutional imperative
sentence. The state legislature, every four years, may direct the manner of the state engaging in
appointing the Presidential electors. So, the state legislatures, every four years, applies their
respective parliamentary rules to the state appointments of Presidential electors. The federal laws
and state laws which contradict with the state legislatures’ quadrennial prerogatives are
constitutionally unauthorized.
To be balanced, a similar thought experiment sympathetic to the opposition should be
tried. Now, substitute the phrase “have laws regarding appointment” for “appointment” in the
constitutional sentence. Quickly, two contradictions arise. First, the first part of sentence “[The
President] shall hold his office during the term of four years, and, together with the Vice President,
chosen for the same term, be elected, as follows.” So, state laws contradict with the phrase that the

21

states “have laws regarding appointment.” The contradiction is that the constitutional imperative
sentence is the exclusive law requiring that every four years the Presidential elections shall occur “as
follows”; so, state laws “directing” the “manner” of “appointing” the Presidential electors are
constitutionally unauthorized. Second, the later part of the sentence “in such manner as the
Legislature thereof may direct” contradicts “have laws regarding appointment.” The contradiction is
that the constitutional imperative sentence is the exclusive law requiring that every four years the
Presidential elections shall occur “as follows” including the state legislature “may” “direct” the
“manner” of “appointing” the Presidential electors. So, state laws “directing” the “manner” of
“appointing” the Presidential electors are constitutionally unauthorized. Specifically, the challenged
federal laws and state laws requiring Governor post-election certification of Presidential electors,
currently considered as having full legal force and effect, have the legal consequence that the state
legislatures, every four years, “may” NOT “direct” the “manner” of “appointing” the Presidential
electors. Again, the state legislatures, not the Governors, have the constitutional prerogatives for
post-election certification.
b. The textual argument supports that 3 U.S.C. §§ 5, 6 and 15 are unconstitutional.
The textual argument for unconstitutionality of 3 U.S.C. §§ 5, 6 and 15 is straightforward.9
Under textualism, the Constitution’s text supports that the unconstitutionality of 3 U.S.C. §§ 5, 6
and 15 because they fail to guarantee voter’s rights to the state legislature’s post-election
certifications of Presidential votes and of Presidential electors to vote for President and Vice
President.
Congress neither has express constitutional authority nor implied constitutional authority to
enact 3 U.S.C. §§ 5, 6 and 15. Further, the federal laws violate voter’s rights in Presidential elections

9

See, generally, Vasan Kesavan, Is the Electoral Count Act Unconstitutional, 80 N.C. L. Rev. 1653, 16961759 (2002).
22

because they interfere with state legislative post-election certifications of Presidential votes and
Presidential electors and that only the votes of such certified Presidential electors may be counted in
the election of President and Vice President.
First, Congress has no express constitutional authority to enact 3 U.S.C. §§ 5, 6 and 15 which
regulate state appointment of Presidential electors and regulate counting Presidential elector votes to
elect a President and Vice President. Article II puts state appointment of Presidential electors in the
exclusive hands of the state legislatures every four years, “Each state shall appoint, in such manner
as the Legislature thereof may direct.” By contrast, Article II lacks the express grant of authority to
Congress in Article I’s Elections Clause for Congressional elections:
The Times, Places and Manner of holding Elections for Senators and Representatives,
shall be prescribed in each State by the Legislature thereof; but the Congress may at
any time by Law make or alter such Regulations, except as to the Places of chusing
Senators.
There, the Constitution provides a power to Congress “to make or alter such [state] Regulations” by
state in Article I. But, that Constitutionally-conferred power is absent in Article II.
Lacking express constitutional authority in Article II’s imperative sentence regarding
Presidential elections, the only alternative for Congressional authority is an implied constitutional
authority. The only candidates for the government’s implied constitutional authority would be
Article I’s the Necessary and Proper Clause and Article II itself.
The first candidate for implied Congressional authority is the Necessary and Proper Clause.
The Necessary and Proper Clause provides that Congress shall have power "[t]o make all Laws
which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other
Powers vested by this Constitution in the Government of the United States, or in any Department
or Officer thereof." A careful parsing of the Necessary and Proper Clause reveals that there are three
prongs of power. Under the Clause, Congress has power for carrying into execution (1) "the
foregoing Powers," (2) "all other Powers vested by this Constitution in the Government of the
23

United States," and (3) "all other Powers vested by this Constitution... in any Department or Officer
thereof." None of these prongs support the constitutionality of 3 U.S.C. §§ 5, 6 and 15.
First, the phrase "foregoing Powers" refers to the enumerated powers of Article I. None of
the enumerated Congressional powers in Article I cover the appointment of and voting by
Presidential electors—which is covered by Article II. So, the “foregoing powers” requirement is not
satisfied.
Second, the phrase "all other Powers vested by this Constitution... in any Department or
Officer thereof" does not include Congress or Congressional members. Congress is not a
Department. Members of Congress are not Officers. In fact, Congressional members are subject to
impeachment by the House of Representatives and conviction by the Senate because they are not
"civil Officers of the United States." See U.S. Const., art. II, § 4 ("The President, Vice President, and
all civil Officers of the United States, shall be removed from Office on Impeachment for, and
Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."). Furthermore, the
Ineligibility Clause of Article I, Section 6 provides that "no Person holding any Office under the
United States, shall be a Member of either House during his Continuance in Office.” So the phrase
"all other Powers vested by this Constitution... in any Department or Officer thereof" is not
satisfied.
Third, the phrase "all other Powers vested by this Constitution... in any Department or
Officer thereof" does not apply because the U.S. Congress is not a Department or Officer. The text
of Article II’s imperative sentence regarding Presidential elections does not employ the word
“power” referencing to Congress. Article II’s imperative sentence regarding Presidential elections
does not vest “power” in Congress over state legislatures’ express power to determine the manner of
appointment of Presidential electors every four years, including the post-election certification of

24

Presidential electors. Therefore, the phrase "all other Powers vested by this Constitution... in any
Department or Officer thereof" is not satisfied.
The second candidate for implied constitutional authority is Article II itself. But, similarly,
Article II supports that it is the state legislatures’ exclusive constitutional prerogative to determine
the state’s appointment of Presidential electors, including post-certification of the Presidential
electors to vote for President and Vice President. Article II’s imperative sentence regarding
Presidential elections and the Twelfth Amendment do not grant Congress any “power” over the
state legislatures’ constitutional prerogatives over Presidential electors. Instead, these constitutional
texts define a very limited and specific role for the Vice President, U.S. Senate and U.S. House of
Representatives.
Congress’s enactment of 3 U.S.C. §§ 5, 6 and 15 goes far beyond the constitutionallyprescribed roles for Vice President, U.S. Senate and the U.S. House of Representatives in Article II’s
imperative sentence regarding Presidential elections and the Twelfth Amendment. So, Article II’s
imperative sentence regarding Presidential elections and the Twelfth Amendment do not provide an
implied constitutional authority for 3 U.S.C. §§ 5, 6 and 15.
Additionally, there is a textualist argument based on the negative implication. When the
Constitution provides Congressional power regarding the Presidency, it says so—twice. First, Article
II, Section 1, Clause 4 which provides that "[t]he Congress may determine the Time of chusing the
Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout
the United States.” Second, the Presidential Succession Clause of Article II provides that:
[i]n Case of the Removal of the President from Office, or of his Death, Resignation,
or Inability to discharge the Powers and Duties of the said Office, the Same shall
devolve on the Vice President, and the Congress may by Law provide for the Case of
Removal, Death, Resignation or Inability, both of the President and Vice President,
declaring what Officer shall then act as President, and such Officer shall act
accordingly, until the Disability be removed, or a President shall be elected.

25

In both of these instances, the Constitution provides Congress with express authority over a limited,
narrowly-prescribed aspect of Presidential elections. By negative implication, then, Article II’s
imperative sentence regarding Presidential elections and selection of Presidential electors every four
years does not provide implied constitutional authority for Congress to regulate the state legislatures’
post-election certifications of Presidential votes and of Presidential electors.
Finally, the constitutional text also provides an intertextual argument. When the Constitution
provides a Congressional role in election, the Constitution says so. First, Article I’s Elections Clause
provides that "[t]he Times, Places and Manner of holding Elections for Senators and
Representatives shall be prescribed in each State by the Legislature thereof; but the Congress may at
any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”
Second, The House Judging Clause provides that "[e]ach House shall be the Judge of the Elections,
Returns and Qualifications of its own Members." In both instances, the Constitution provides
Congress with express constitutional authority regarding elections involving Congress. However,
regarding Presidential electors, there is constitutional silence—no express power is granted to
Congress—because Article II empowers the state legislatures, exclusively, to govern the states’
appointments of Presidential electors.
c. Structuralist arguments also support that 3 U.S.C. §§ 5, 6 and 15 are
unconstitutional.
The interpretivist’s structuralist arguments10 also support the unconstitutionality of 3 U.S.C.
§§ 5, 6 and 15.11 One Congressional researcher has defined judicial structuralism:
Another mode of constitutional interpretation draws inferences from the design of the
Constitution: the relationships among the three branches of the federal government
(commonly called separation of powers); the relationship between the federal and state
10

See, generally, Charles L. Black, Jr., Structure And Relationship In Constitutional Law (1969); Philip
Bobbit, Constitutional Fate: Theory Of The Constitution 74-92 (1982).
11
See, generally, Vasan Kesavan, Is the Electoral Count Act Unconstitutional, 80 N.C. L. Rev. 1653, 17591793 (2002).
26

governments (known as federalism); and the relationship between the government and
the people.12
The structure of Article II is to empower the state legislatures, not Congress or the state’s
Governors, to appoint the Presidential electors. 3 U.S.C. §§ 5, 6 and 15 violate Article II’s structure
because they empower Congress and the state’s Governors in the Presidential elector process—
excluding the state legislatures from the Presidential elector certification process.
The structure of the Article II for Presidential elections is anti-Congress, anti-Governors and
pro-state legislatures. Article II’s imperative sentence regarding Presidential elections puts the state
legislatures in exclusive control of a state’s appointment of Presidential electors. The state
legislatures, who enact the state elections law applicable to federal elections, are identified to choose
the manner of appointment of the Presidential electors. Congress and the Governors are to have no
substantive role in the procedures of certifying Presidential electors to vote for President and Vice
President. The Federal Defendants are just there to count the Presidential electors’ votes of the
Presidential electors who have received state legislative post-election certification.
Article II contains an anti-Congress principle, anti-Governors principle and a pro-state
legislatures principle. These principles should be brought to bear on any interpretation of Article II
and 3 U.S.C. §§ 5, 6 and 15. If these principles are applied, 3 U.S.C. §§ 5, 6 and 15 is constitutionally
unauthorized.
1) The Anti-Congress Principle
The Constitution mistrusts Congress in Presidential elections. This is the anti-Congress
principle of Article II. Congress is to have a limited, narrowly-prescribed role in Presidential

12

Brandon J. Murrill, “Modes of Constitutional Interpretation” at 2, Congressional Research Service
(Mar. 15, 2018).
27

elections. Congress is not to interfere with the state legislature directing the appointment of
Presidential electors. Congress is not trusted in Article II.
First, Article II’s electoral college method of selecting a President and Vice President is a
rejection of Congressional decision-making. The Constitution replaced the Articles of Confederation
which authorized Congress to elect a President of the United States in Congress assembled—
parliamentary style. Under the Articles of Confederation, John Hanson was the first President of the
United States in Congress Assembled and served from November 5, 1781 to November 4, 1782.
The Constitution replaced that parliamentary system with the Electoral College based on the antiCongress principle of Article II. Article II prohibits Congress selecting the President.
Second, Article II’s Elector Incompatibility Clause, stating that “no Senator or
Representative, or Person holding an Office or Trust of Profit under the United States, shall be
appointed as an Elector,” is a rejection of Congressional decision-making. The relevant purpose of
the Elector Incompatibility Clause is to absolutely separate the Presidential electors from Congress.
The Presidential electors are to be independent from Congress.
2) The Anti-Governors Principle
The Constitution mistrusts Governors in Presidential elections. This is the anti-Governors
principle of Article II. The Governors are to have no role in Presidential selection. The states’
Governors are not trusted in Article II. Article II’s electoral college method of selecting a President
and Vice President empowers the state legislatures, not the Governors.
First, Article II’s imperative sentence regarding Presidential elections specifies “state
legislatures”—not Governors nor “state executives’—to have the power over the appointment of
Electors:
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…

28

So, one of the purposes of Article II’s imperative sentence regarding Presidential elections was to
exclude the states’ Governors from having a role in Presidential elections.
Second, the Electors Clause specifies that the Presidential electors are to vote in their states
and the Vice President and Congress, not the State’s Governors, would open and count the
Presidential electors’ ballots for President and Vice President:
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.
And they shall make a List of all the Persons voted for, and of the Number of Votes
for each; which List they shall sign and certify, and transmit sealed to the Seat of the
Government of the United States, directed to the President of the Senate. The
President of the Senate shall, in the Presence of the Senate and House of
Representatives, open all the Certificates, and the Votes shall then be counted.
One of the purposes of the Electors Clause was also to exclude the states’ Governors from having a
role in opening and counting the Presidential electors’ ballots.
3) The Pro-State Legislatures Principle
The Constitution trusts state legislatures in Presidential elections. This is the pro-state
legislatures principle of Article II. The state legislatures, not Congress nor the states’ Governors, are
to direct the selection of Presidential electors. Article II trusts state legislatures to choose
Presidential electors—even trusting them to directly elect them as was done by some state in the
1800’s.13
First, Article II’s imperative sentence regarding Presidential elections empowers “state
legislatures”—not Congress, nor the State’s Governors—to have the power over the appointment
of Presidential electors:
He shall hold his office during the term of four years, and, together with the Vice
President, chosen for the same term, be elected, as follows: Each State shall appoint,
in such Manner as the Legislature thereof may direct, a Number of Electors, equal to
See, e.g., Georgia Constitution of 1798, Art. IV, sec. 2 (http://founding.com/founderslibrary/government-documents/american-state-and-local-government-documents/stateconstitutions/georgia-constitution-of-1798/) (last visited: Dec. 18, 2020).
13

29

the whole Number of Senators and Representatives to which the State may be entitled
in the Congress…
So, one of the purposes of Article II’s imperative sentence regarding Presidential elections was to
empower state legislatures to appoint the Presidential electors.
Second, the Electors Clause specifies that the Presidential electors are to vote in their states
and specifies the Vice President and Congress will have limited, defined roles of opening and
counting the Presidential electors’ ballots for the election of President and Vice President:
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.
And they shall make a List of all the Persons voted for, and of the Number of Votes
for each; which List they shall sign and certify, and transmit sealed to the Seat of the
Government of the United States, directed to the President of the Senate. The
President of the Senate shall, in the Presence of the Senate and House of
Representatives, open all the Certificates, and the Votes shall then be counted.
One of the purposes of the Electors Clause was to limit and define the Vice President’s and
Congress’s role in the Electoral College process to ensure that the state legislature would have the
exclusive power to appoint the Presidential electors.
4) Conclusion
Structuralist arguments based on Article II support the unconstitutionality of 3 U.S.C. §§ 5, 6
and 15. Article II contains an anti-Congress principle, an anti-Governors principle and a pro-state
legislatures principle. The structure of Article II is to empower the state legislatures, not Congress or
the Governors, to appoint the Presidential electors. 3 U.S.C. §§ 5, 6 and 15 violate Article II’s
structure because they empower Congress and the state’s Governors in the Presidential elector
certification and counting process—cancelling the state legislatures out of the Presidential
certification and subsequent counting process.

30

5.

The Defendant States violate Article II by their respective constitution and
their respective state laws—Ariz. Rev. Stat. § 16-212 (B), Ga. Code Ann. § 21-2499 (B), Mich. Comp. Laws. § 168.46, Wis. Stat. § 7.70 (5) (b) and 25 Pa. Cons.
Stat. § 3166—by cancelling state legislatures out of post-election certifications
of Presidential votes and of Presidential electors.

Under Article II’s imperative sentence regarding Presidential elections, the Defendant States
lack congressional authority to enact state laws which cancel their respective state legislatures out of
post-election certifications of Presidential votes and of Presidential electors—as they have done.
Arizona in Ariz. Rev. Stat. § 16-212 (B) has delegated post-election certifications to the Arizona
Secretary of State. Georgia in Ga. Code Ann.§ 21-2-499 (B) has delegated post-election certifications
to the Georgia Secretary of State and Governor. Michigan in Mich. Comp. Laws § 168.46 has
delegated post-election certifications to the Michigan State Board of Canvassers and the Governor.
Wisconsin in Wis. Stat. § 7.70 (5) (b) has delegated post-election certifications to the Wisconsin
Elections Commission. Pennsylvania in 25 Pa. Cons. Stat. § 3166 has delegated post-election
certifications to the Secretary of Commonwealth and the Governor.
But, Article II’s imperative sentence regarding Presidential elections, and its non-delegation
doctrine, empowers the state legislatures, every four years, to “direct” post-election certification of
Presidential electors, not to delegate post-election certification, perpetually and in a wholesale
fashion, to state executive branch officials as a ministerial duty. As detailed above, there are textual
and structural arguments for these state statutes being unconstitutional. Therefore, the Court should
hold Ariz. Rev. Stat. § 16-212 (B), Ga. Code Ann.§ 21-2-499 (B), Mich. Comp. Laws § 168.46, Wis.
Stat. § 7.70 (5) (b), 25 Pa. Cons. Stat. § 3166 as an unconstitutional delegation of the state legislative
prerogative of post-election certification of Presidential voters.
Notably, even the current state constitutions of the Defendant States fail to require the state
legislature to meet for post-election certification of the Presidential electors in violation of state
legislative constitutional duties under Article II’s imperative sentence regarding Presidential

31

elections. Arizona’s, Georgia’s and Pennsylvania’s Constitutions have the state legislature adjourned
until January 2021. Arizona Const.; Georgia Const.; Pennsylvania Const. Michigan’s and
Wisconsin’s Constitutions permit the state legislature to be in session, but do not require a joint
session of the state legislature to affirmatively vote for post-election certification of Presidential
electors. Michigan Const.; Wisconsin Const.
a. The Arizona Constitution and laws do not require state legislative post-election
certification of Presidential electors so their votes can be constitutionally counted
by the federal Defendants—violating voters’ rights.
The Arizona Constitution and laws do not require state legislative post-election certification
of Presidential electors so their votes can be constitutionally counted by the federal Defendants—
violating voters’ rights. Under Article II’s imperative sentence regarding Presidential elections,
Arizona lacks legal authority to enact laws which are a perpetual and wholesale delegation of postelection certification to state executive branch officials—as it has done. Arizona in Ariz. Rev. Stat. §
16-212 (B) has delegated certification of Presidential electors to the Arizona Secretary of State—and
has deferred to the Arizona Governor’s certification of Presidential electors under 3 U.S.C. § 6.
But, Article II’s imperative sentence regarding Presidential elections, and its non-delegation
doctrine, empowers the Arizona state legislature to “direct” post-election certification of Presidential
electors, not to delegate post-election certification, perpetually and in a wholesale fashion, to state
executive branch officials as a ministerial duty. As detailed above, there are textual and structural
arguments for these state statutes being unconstitutional. Therefore, the Court should find that the
Arizona Constitution and Arizona laws, including Ariz. Rev. Stat. § 16-212 (B), are an
unconstitutional delegation of the Article II state legislative prerogatives of post-election
certification of Presidential votes and post-election certification of Presidential electors.

32

b. The Georgia Constitution and laws do not require state legislative post-election
certification of Presidential electors so their votes can be constitutionally counted
by the federal Defendants—violating voters’ rights.
The Georgia Constitution and laws do not require state legislative post-election certification
of Presidential electors so their votes can be constitutionally counted by the federal Defendants—
violating voters’ rights. Under Article II’s imperative sentence regarding Presidential elections,
Georgia lacks legal authority to enact state laws which are a perpetual and wholesale delegation of
post-election certification to state executive branch officials—as it has done. Georgia in Ga. Code
Ann.§ 21-2-499 (B), has delegated certification of Presidential electors to the Georgia Secretary of
State and the Georgia Governor—consistent with the Georgia Governor’s certification of
Presidential electors under 3 U.S.C. § 6.
But, Article II’s imperative sentence regarding Presidential elections, and its non-delegation
doctrine, empowers the Georgia state legislature to “direct” post-election certification of Presidential
electors, not to delegate post-election certification, perpetually and in a wholesale fashion, to state
executive branch officials as a ministerial duty. As detailed above, there are textual and structural
arguments for these state statutes being unconstitutional. Therefore, the Court should find that the
Georgia Constitution and Georgia laws, including Ga. Code Ann.§ 21-2-499 (B), are an
unconstitutional delegation of the Article II state legislative prerogatives of post-election
certification of Presidential votes and post-election certification of Presidential electors.
c. The Michigan Constitution and laws do not require state legislative post-election
certification of Presidential electors so their votes can be constitutionally counted
by the federal Defendants—violating voters’ rights.
The Michigan Constitution and laws do not require state legislative post-election certification
of Presidential electors so their votes can be constitutionally counted by the federal Defendants—
violating voters’ rights. Under Article II’s imperative sentence regarding Presidential elections,
Michigan lacks legal authority to enact state laws which are a perpetual and wholesale delegation of
33

post-election certification to state executive branch officials—as it has done. Michigan in Mich.
Comp. Laws § 168.46 has delegated certification of Presidential electors to Michigan State Board of
Canvassers and Michigan Governor—consistent with the Michigan Governor’s certification of
Presidential electors under 3 U.S.C. § 6.
But, Article II’s imperative sentence regarding Presidential elections, and its non-delegation
doctrine, empowers the Michigan state legislature to “direct” post-election certification of
Presidential electors, not to delegate post-election certification, perpetually and in a wholesale
fashion, to state executive branch officials as a ministerial duty. As detailed above, there are textual
and structural arguments for these state statutes being unconstitutional. Therefore, the Court should
find that the Michigan Constitution and Michigan laws, including Mich. Comp. Laws § 168.46, are
an unconstitutional delegation of the Article II state legislative prerogatives of post-election
certification of Presidential votes and post-election certification of Presidential electors.
d. The Pennsylvania Constitution and laws do not require state legislative postelection certification of Presidential electors so their votes can be constitutionally
counted by the federal Defendants—violating voters’ rights.
The Pennsylvania Constitution and laws do not require state legislative post-election
certification of Presidential electors so their votes can be constitutionally counted by the federal
Defendants—violating voters’ rights. Under Article II’s imperative sentence regarding Presidential
elections, Pennsylvania lacks legal authority to enact state laws which are a perpetual and wholesale
delegation of post-election certification to state executive branch officials—as it has done.
Pennsylvania in 25 Pa. Cons. Stat. § 3166 has delegated certification of Presidential electors to the
Secretary of Commonwealth and the Pennsylvania Governor—consistent with the Pennsylvania
Governor’s certification of Presidential electors under 3 U.S.C. § 6.
But, Article II’s imperative sentence regarding Presidential elections, and its non-delegation
doctrine, empowers the Pennsylvania state legislature to “direct” post-election certification of

34

Presidential electors, not to delegate post-election certification, perpetually and in a wholesale
fashion, to state executive branch officials as a ministerial duty. As detailed above, there are textual
and structural arguments for these state statutes being unconstitutional. Therefore, the Court should
find that the Pennsylvania Constitution and Pennsylvania laws, including 25 Pa. Cons. Stat. § 3166,
are an unconstitutional delegation of the Article II state legislative prerogatives of post-election
certification of Presidential votes and post-election certification of Presidential electors.
e. The Wisconsin Constitution and laws do not require state legislative post-election
certification of Presidential electors so their votes can be constitutionally counted
by the federal Defendants—violating voters’ rights.
The Wisconsin Constitution and laws do not require state legislative post-election
certification of Presidential electors so their votes can be constitutionally counted by the federal
Defendants—violating voters’ rights. Under Article II’s imperative sentence regarding Presidential
elections, Wisconsin lacks legal authority to enact state laws which are a perpetual and wholesale
delegation of post-election certification to state executive branch officials—as it has done.
Wisconsin in Wis. Stat. § 7.70 (5) (b) has delegated certification of Presidential electors to the
Wisconsin Elections Commission—and has deferred to the Arizona Governor’s certification of
Presidential electors under 3 U.S.C. § 6.
But, Article II’s imperative sentence regarding Presidential elections, and its non-delegation
doctrine, empowers the Wisconsin state legislature to “direct” post-election certification of
Presidential electors, not to delegate post-election certification, perpetually and in a wholesale
fashion, to state executive branch officials as a ministerial duty. As detailed above, there are textual
and structural arguments for these state statutes being unconstitutional. Therefore, the Court should
find that the Wisconsin Constitution and Wisconsin laws, including Wis. Stat. § 7.70 (5) (b), are an
unconstitutional delegation of the Article II state legislative prerogatives of post-election
certification of Presidential votes and post-election certification of Presidential electors.

35

6.

The Presidential post-election court proceedings—like Bush v. Gore, the
Texas original action and the thirty post-election lawsuits in Defendant
States—are in constitutional error and unnecessarily politicize the federal and
state courts.

The Presidential post-election court proceedings—like Bush v. Gore, the Texas original action
and the thirty post-election lawsuits in Defendant States—are in constitutional error and
unnecessarily politicize the federal and state courts. Under Article II, all of those cases should be
dismissed for lack of jurisdiction—and the plaintiffs should be instructed to file their election
contests with their respective state legislatures. The Defendant States have election contest or
recount laws, which apply to Presidential elections, but preclude state legislative certifications: Ariz.
Rev. Stat. § 16-672; Ga. Code Ann.§ 21-2-521; Mich. Comp. Laws § 168.862; Wis. Stat. § 9.01; and
25 Pa. Cons. Stat. § 3351. Interestingly, the Pennsylvania laws have a state legislative post-election
certification process for its Governor and Lieutenant Governor elections—but not for President
and Vice President. 25 Pa. Cons. Stat. § 3312, et seq. The Defendant States’ laws precluding state
legislative post-election certification in Presidential election contests and recounts violates Article II.
III.

The Plaintiffs have standing as voters because the Defendants are violating their
voting rights to state legislative post-election certifications of their votes and of
Presidential electors and to only the votes of Presidential electors so certified being
counted toward the election of President and Vice President.
As voters, the Plaintiffs have legal standing to bring these constitutional claims to ensure that

Presidential elections are constitutionally conducted by Defendants. Article III of the Constitution
limits the jurisdiction of federal courts to “Cases” and “Controversies.” U.S. Const., Art. III, § 2.
The doctrine of standing gives meaning to these constitutional limits by “identify[ing] those disputes
which are appropriately resolved through the judicial process.”5 Lujan v. Defenders of Wildlife, 504 U.S.
555, 560 (1992). “The law of Article III standing, which is built on separation-of-powers principles,
serves to prevent the judicial process from being used to usurp the powers of the political
branches.” Clapper v. Amnesty Int'l USA, 568 U.S. 398, 408 (2013). To establish Article III standing, a

36

plaintiff must show (1) an “injury in fact,” (2) a sufficient “causal connection between the injury and
the conduct complained of,” and (3) a “likel[ihood]” that the injury “will be redressed by a favorable
decision.” Lujan, supra, at 560–561 (internal quotation marks omitted). Pre-enforcement
constitutional challenges must meet the same standing requirements. See Susan B. Anthony List v.
Driehaus, 573 U.S. 149, 157–58 (2014).
The U.S. Court of Appeals for the Fourth Circuit recognized standing in Baten v. McMaster,
967 F.3d 345, 352–53 (4th Cir. 2020) for Plaintiffs alleging their votes for Democratic presidential
candidates were, in effect, discarded under South Carolina's winner-take-all process. Id, citing Gill v.
Whitford, ––– U.S. ––––, 138 S. Ct. 1916, 1920–21 (2018) (citing Baker v. Carr, 369 U.S. 186, 206
(1962)) (contrasting the individual harm felt by a voter who casts his ballot in a gerrymandered
district with the “generalized grievance” of one who disapproves of gerrymandering in his state but
does not live in a gerrymandered district). The Fourth Circuit held this type of disenfranchisement
“is the type of concrete, particularized injury that Article III contemplates.” Id. at 353.
Similarly, the Plaintiffs claim they have been disenfranchised. The Plaintiffs claim that
Article II of the U.S. Constitution provides a voter a constitutional right to the voter’s Presidential
vote being certified as part of the state legislature’s post-election certification of Presidential electors.
Absence such certification, the Presidential electors’ votes from that state cannot be counted by the
federal Defendants toward the election of President and Vice President. Because the Plaintiffs’ votes
are not counted as part of the constitutionally-required state legislative post-election certification of
Presidential electors, the Plaintiffs are disenfranchised.
The Defendants’ disenfranchisement of the Plaintiffs’ voting rights is that the Plaintiffs’
votes are never properly certified by the state legislature, which based on that certification, certifies
the Presidential electors whose votes are counted by the federal Defendants to elect the President
and Vice President. The Defendants’ disenfranchisement of the Plaintiffs’ voting rights is caused by

37

3 U.S.C. §§ 5, 6, 15, and the Defendants’ state constitutions and state laws including Ariz. Rev. Stat.
§ 16-212 (B), Ga. Code Ann.§ 21-2-499 (B), Mich. Comp. Laws § 168.46, Wis. Stat. § 7.70 (5) (b) and
25 Pa. Cons. Stat. § 3166.
When Defendants violate the Constitution as it relates to Presidential elections in the
Defendant States, all voters in Presidential elections suffer an injury-in-fact caused by the
Defendants. Voters in a Presidential election, in this instance, have an injury-in-fact different than
the public because they voted and they thus had an interest that the election in which they voted is
constitutionally-conducted. The same is true of future elections. Finally, the Court can redress the
Plaintiffs’ injuries by issuing a declaratory judgment and accompanying injunction to enjoin the
Defendants’ unconstitutional conduct.
Furthermore, as voters, each Plaintiff has a fundamental right to vote.14 Thus, each Plaintiff
has a recognized protectable interest in voting. As the U.S. Supreme Court has long recognized, a
person's right to vote is “individual and personal in nature.”15 Thus, “voters who allege facts
showing disadvantage to themselves as individuals have standing to sue” to remedy that
disadvantage.16 “Safeguarding the integrity of the electoral process is a fundamental task of the
Constitution, and [the courts] must be keenly sensitive to signs that its validity may be impaired.”17
“Confidence in the integrity of our electoral processes is essential to the functioning of our
participatory democracy.”18
By federal and state election laws, the federal and state governments have agreed to protect
the fundamental right to vote by maintaining the integrity of an election contest as fair, honest, and

14

Reynolds v. Sims, 377 U.S. 533, 554–55, 562 (1964).
Id. 377 U.S. at 561.
16
Gill v. Whitford, 138 S. Ct. 1916, 1929 (2018).
17
Johnson v. FCC, 829 F.2d 157, 163 (D.C. Cir. 1987).
18
Purcell v. Gonzalez, 549 U.S. 1, 4 (2006).
15

38

unbiased to maintain the structure of the democratic process.19 The voters, in turn, agree to accept
the government’s announcement of the winner of an election contest, including Presidential
elections, to maintain the integrity of the democratic system of the United States. “‘No right is more
precious in a free country than that of having a voice in the election of those who make the laws
under which, as good citizens, we must live.’20 But the right to vote is the right to participate in an
electoral process that is necessarily structured to maintain the integrity of the democratic system.”21
This constitutional arrangement constitutes a “social contract” between the voter and the
government as an agreement among the people of a state about the rules that will define their
government.22 Social contract theory provided the background against which the Constitution was
adopted. “Because of this social contract theory, the Framers and the public at the time of the
revolution and framing conceived governments as resulting from an agreement among people to
provide a means for enforcing existing rights.”23 “The aim of a social contract theory is to show that
members of some society have reason to endorse and comply with the fundamental social rules,
laws, institutions, and principles of that society. Put simply, it is concerned with public justification,
i.e., ‘of determining whether or not a given regime is legitimate and therefore worthy of loyalty.’”24
State legislative post-election certifications of Presidential votes and of Presidential electors
is part of the social contract to protect the right to vote. Hence, the right to vote is intertwined with

19

Timmons v. Twin Cities Area New Party, 520 U.S. 351, 364 (1997) (“States certainly have an interest in
protecting the integrity, fairness, and efficiency of their ballots and election processes as means for
electing public officials.”). See also, e.g. Plts Amended Compl. ¶¶37–45.
20
Burdick v. Takushi, 504 U.S. 428, 441 (1992) quoting Wesberry v. Sanders, 376 U.S. 1, 17 (1964).
21
Id. (citations omitted). See also, e.g. Plts Amended Compl. ¶¶46–49.
22
Dumonde v. U.S., 87 Fed. Cl. 651, 653 (Fed. Cl. 2009) (“Historically, the Constitution has been
interpreted as a social contract between the Government and people of the United States,” citing
Marbury v. Madison, 1 Cranch 137, 5 U.S. 137, 176 (1803). See e.g. Plts Amended Compl. ¶50.
23
Greg Serienko, Social Contract Neutrality and the Religion Clauses of the Federal Constitution, 57 Ohio St.
L. J. 1263, 1269.
24
Contemporary Approaches to the Social Contract, https://plto.stanford.edu/entries/contractarianismcontemporary/ (last visited Dec. 8, 2020).
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the integrity of an election process. The loss of the integrity of the election process renders the right
to vote meaningless.25 Here, the Defendant States’ election irregularities and improprieties, including
no state legislative post-election certification of Presidential votes and of Presidential electors, so
exceed the razor-thin margins in the Defendant States to cast doubt on the razor-thin margins of
victory and, thus, threaten the social contract itself.
The Article II social contract with the voters is, in part, the assurance of their state
legislatures voting, based on voters’ Presidential votes in that state, for post-election certification of
Presidential electors. Arising from the social contract is the integrity of the election process to
protect the voter’s right to vote.
In the Defendant States enacting constitutions and state laws cancelling state legislatures out
of post-election certifications of Presidential votes and of Presidential electors, the Defendant states
have breached the social contract of Article II.
This social contract, protecting the individual right to vote, is what is personally at risk for
the Plaintiffs in the outcome of this controversy. 26 As much as the government has a compelling
interest in fair and honest elections with accompanying laws and regulations to ensure that objective
to preserve the democratic system of government, so too the voter has an interest against state and
local election officials violating the election laws in favor of a pre-determined result. Under the social
contract, state legislative post-election certification of the Presidential vote is the voters’ remedy
against state and local election officials’ shenanigans. The Defendant States have unconstitutionally
deprived their voters of that remedy in their respective state legislatures.

25

“Legitimacy is the crucial currency of government in our democratic age. Only elections that are
transparent and fair will be regarded as legitimate…But elections without integrity cannot provide
the winners with legitimacy, the losers with security and the public with confidence in their leaders
and institutions.”https://www.kofiannanfoundation.org/supporting-democracy-and-elections-withintegrity/uganda-victory-without-legitimacy-is-no-victory-at-all/ (Last visited Dec. 8, 2020).
26
Gill, 138 S.Ct. at 1923.
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Furthermore, the voter has a compelling interest in the maintenance of a democratic system
of government under the Ninth Amendment through the election process, beyond controversies
regarding governmental attempts to interfere with the right to vote. Here, the voter did not enter
into a social contract with the Governors and the state and local election officials to give them
discretion for state election irregularities and improprieties—and to cancel post-election
certifications by the state legislatures—regardless of how benign the public officials might be.
Instead, the voters’ social contract is with the state legislatures—which must under Article II
conduct post-election certification of all Presidential votes and of the Presidential electors. The
Article II requirement of the state legislature casting post-election certification votes is the voters’
constitutional “insurance policy” against the risk of Governors and state and local election officials
engaging in election irregularities and improprieties in favor of a pre-determined outcome.
The voters have been willing to accept federal and state laws and regulations imposed upon a
Presidential election process to serve the government’s compelling interest in the integrity of that
process. So, while it is fair for the government to create public governmental regulatory schemes to
promote the compelling interests to protect the right to vote, and therefore, to protect a voter’s right
of associational choices under the First Amendment,27 those rights are infringed when the
Defendant States cancel the state legislatures out of post-election certifications of Presidential votes
and of the Presidential electors.28
For Presidential elections, the Defendant States under Article II have no legal authority to
cancel state legislatures out of post-election certifications of Presidential votes and of Presidential
electors. Yet, they did. That is the harm for the voters. Article II’s imperative sentence regarding
Presidential elections that gives voters the right to have their respective state legislatures engage in

27
28

Anderson v. Celebrezze, 460 U.S. 780, 788–89 (1983).
Id.
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post-election certifications of Presidential votes and of Presidential electors—not Governors nor
state or local election officials.
This lawsuit is not about voter fraud. The harm from the federal law—3 U.S.C. §§ 5, 6, 15—
and the state laws—including Ariz. Rev. Stat. § 16-212 (B), Ga. Code Ann.§ 21-2-499 (B), Mich.
Comp. Laws § 168.46, Wis. Stat. § 7.70 (5) (b) and 25 Pa. Cons. Stat. § 3166—is the loss of a voter
remedy of state legislative post-election certifications required as a core governmental function under
Article II.
In turn, the Federal Defendants’ acceptance of the Presidential electors’ votes without state
legislative post-election certification of Presidential electors breaches the social contract between the
voter and the government—causing more injury to the voter.
Finally, these injuries to the voters are redressable by the Court. For example, the Court
could grant the requested preliminary injunction requiring that the federal Defendants on January 6,
2021, only count the votes of Presidential electors if they have received state legislative post-election
certification. Otherwise, the votes don’t count toward the election of President and Vice President.
IV.

The Plaintiffs are likely to suffer irreparable harm in the absence of preliminary relief.
“Plaintiffs here must at least ‘demonstrate that irreparable injury is likely in the absence of an

injunction.’” Guttenberg v. Emery, 26 F.Supp.3d 88, 101 (D.D.C. 2014)(quoting Winter v. NRDC, Inc.,
555 U.S. 7, 22 (2008)). “Under Winter, even a ‘strong likelihood of prevailing on the merits’ cannot
make up for a deficient showing of irreparable injury.” Id. (quoting Winter, 555 U.S. at 21–22).
“Regardless of how the other three factors are analyzed, it is required that the movant demonstrate
an irreparable injury.” Mdewakanton Sioux Indians of Minn. v. Zinke, 255 F.Supp.3d 48, 51, n.3 (D.D.C.
2017).
The Plaintiffs’ irreparable injury here is the disenfranchisement of Plaintiffs’ vote when the
Presidential electors’ votes are counted without constitutionally-required state legislative post-

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election certifications of the Plaintiffs’ votes and of the Presidential electors. The federal and state
constitutions and laws are a violation of Article II’s imperative sentence regarding Presidential
elections. Further, without state legislative post-election certification, Plaintiffs will never have their
votes counted in the state legislature.
Further, the Plaintiffs will never have the same opportunity to challenge in their state
legislatures the election officials’ irregularities and illegalities associated with the November 3, 2020
election. Allegedly, the election officials’ irregularities and illegalities exceed the razor-thin margins in
the Defendant States. Absent the injunction, the Plaintiffs will never have their proverbial “day” in
the state legislature to challenge the Presidential election results.
In turn, the Plaintiffs will be subjected to an unlawfully-elected President because none of
the Presidential electors received a state legislative post-election certification—as Article II requires.
In the absence of the preliminary injunction, the Plaintiffs and the nation will be subjected to
a post-inaugural ouster of the sitting President and Vice President under D.C. Code § 16-3501, et
seq. That proceeding and subsequent ouster will cause irreparable injury to the Plaintiffs—and the
nation.
V.

The balance of equities and the public interest tips in the Plaintiffs’ favor.
The final two factors that the Court must consider are the balance of equities and the

public's interest in the issuance of an injunction. See Arkansas Dairy Co-op Ass'n, Inc. v. U.S. Dep't of
Agric., 573 F.3d 815, 821 (D.C. Cir. 2009). When “balanc[ing] the competing claims of injury,” the
Court must “consider the effect on each party of the granting or withholding of the requested
relief.” Winter, 555 U.S. at 24, 129 S.Ct. 365 (citations omitted). Additionally, “courts of equity
should [have] particular regard for the public consequences in employing the extraordinary remedy
of injunction.” Id. (internal quotation marks and citations omitted).

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The Plaintiffs file this preliminary injunction motion to avoid a constitutional crisis that
would be involved in a post-inaugural ouster of the United States President and Vice President. D.C.
Code § 16-3501, et seq., authorizes this Court, in proper cases, instituted by proper officers or
persons, to post-election ouster of national officers of the United States including the President and
Vice President of the United States. Newman v. U.S. of America ex rel Frizzell, 238 U.S. 537 (U.S.
1915).
Instead, to avoid that post-inaugural constitutional crisis, the Plaintiffs as voters file this
preliminary injunction motion against federal officials in the District of Columbia and Governors
and state legislative leaders in Arizona, Georgia, Michigan, Pennsylvania and Wisconsin requiring a
constitutionally-compliant process for state-by-state post-election certification of Presidential
electors and counting of their votes for the November 3, 2020 Presidential election and future
elections.
The balancing of equities favors the Plaintiffs. Granting a preliminary injunction in this
proceeding is better for everyone than a post-inaugural ouster. If the preliminary injunction is
denied, the Plaintiffs lose something real and concrete: their voting rights are disenfranchised by an
unconstitutional post-election certification process. The Plaintiffs also lose their post-election
opportunity in their respective state legislatures to seek election integrity and protect their vote. On
the other hand, the Defendants lose nothing by doing what the law requires: following Article II’s
imperative sentence regarding Presidential elections and obtaining state legislative post-election
certifications prior to counting the Presidential electors’ votes for President and Vice President on
January 6, 2021.
The public interest favors granting the preliminary injunction too. The constitutional crisis
of post-inaugural ouster should be avoided. The United States, the federal government and the
states, should operate in every subject area in a constitutional way. State legislative post-election

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certifications of Presidential votes and Presidential electors is constitutionally-required. So, the
federal government and the states are legally obligated to honor that constitutional authority.
State legislative post-election certification of Presidential electors is an important way to
develop public acceptance of close Presidential election results. State legislative post-election
certification would help build public confidence in the states’ voting systems too. Every four years,
the state legislatures would be authorized to examine Presidential voters and voters’ complaints as
part of their post-election certifications—and would make electoral reforms accordingly.
Consequently, the state legislatures’ direct involvement in election integrity would build public
confidence in the voting system reducing the amount of Presidential election litigation which now
seems to be occurring in a cycle of every four years. It is far better to have the state legislatures hear
election disputes state-by-state, as intended in Article II, then the United States Supreme Court hear
all the states’ election disputes as proposed in the Texas original action against Pennsylvania,
Michigan, Wisconsin and Georgia—which was supported by Missouri and sixteen other states and
U.S. Representative Mike Johnson and 105 other Congressional members.
CONCLUSION
The Court should issue the preliminary injunction prior to January 6, 2021, when federal
Defendants meet to count the Presidential electors to elect a President and Vice President, because
the Plaintiffs have met the factors required.
Dated: December 22, 2020

/s/Erick G. Kaardal
Erick G. Kaardal (WI0031)
Special Counsel for Amistad Project of
Thomas More Society
Mohrman, Kaardal & Erickson, P.A.
150 South Fifth Street, Suite 3100
Minneapolis, Minnesota 55402
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Attorneys for Plaintiffs
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