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    STATE OF TEXAS, Plaintiff, v. COMMONWEALTH OF PENNSYLVANIA, STATE OF GEORGIA, STATE OF MICHIGAN, AND STATE OF WISCONSIN, Defendants

    • Date
      December 8, 2020
    • City/County
      Washington DC
    • Type of Case
      Voter: The State of Texas (“Plaintiff State”) hereby moves, pursuant to Supreme Court Rule 21, for expedited consideration of the motion for leave to file a bill of complaint, filed today, in an original action on the administration of the 2020 presidential election by defendants Commonwealth of Pennsylvania, et al. (collectively, “Defendant States”). The relevant statutory deadlines for the defendants’ action based on unconstitutional election results are imminent: (a) December 8 is the safe harbor for certifying presidential electors, 3 U.S.C. § 5; (b) the electoral college votes on December 14, 3 U.S.C. § 7; and (c) the House of Representatives counts votes on January 6, 3 U.S.C. § 15. Absent some form of relief, the defendants will appoint electors based on unconstitutional and deeply uncertain election results, and the House will count those votes on January 6, tainting the election and the future of free elections
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    Title

    STATE OF TEXAS, Plaintiff, v. COMMONWEALTH OF PENNSYLVANIA, STATE OF GEORGIA, STATE OF MICHIGAN, AND STATE OF WISCONSIN, Defendants

    Date
    December 8, 2020
    State or Country
    District of Columbia
    County/City:
    Washington DC
    The Court the Case was filed in

    Supreme Court of the United States of America

    Type of Case
    Voter: The State of Texas (“Plaintiff State”) hereby moves, pursuant to Supreme Court Rule 21, for expedited consideration of the motion for leave to file a bill of complaint, filed today, in an original action on the administration of the 2020 presidential election by defendants Commonwealth of Pennsylvania, et al. (collectively, “Defendant States”). The relevant statutory deadlines for the defendants’ action based on unconstitutional election results are imminent: (a) December 8 is the safe harbor for certifying presidential electors, 3 U.S.C. § 5; (b) the electoral college votes on December 14, 3 U.S.C. § 7; and (c) the House of Representatives counts votes on January 6, 3 U.S.C. § 15. Absent some form of relief, the defendants will appoint electors based on unconstitutional and deeply uncertain election results, and the House will count those votes on January 6, tainting the election and the future of free elections
    Case Number

    No. 22O155

    Judges

    Chief Justice John G. Roberts Jr. ...
    Clarence Thomas.
    Ruth Bader Ginsburg
    Stephen G. Breyer.
    Samuel Anthony Alito Jr.
    Sonia Sotomayor.
    Elena Kagan

    Plaintiff

    STATE OF TEXAS,

    Defendant

    COMMONWEALTH OF PENNSYLVANIA, STATE OF GEORGIA,
    STATE OF MICHIGAN, AND STATE OF WISCONSIN,

    Intervener

    Other
    Charles R. Gerow
    Counsel of Record 4725 Charles Road
    Mechanicsburg, PA 17055

    Cgerow@quantumcomms.com 717-877-8194
    Party name: Members of the Pennsylvania General Assembly
    Donald W. MacPherson
    Counsel of Record The MacPherson Group
    24654 N Lake Pleasant Pkwy
    Suite 103-551
    Peoria, AZ 85383

    mac@beatirs.com 6232092003
    Party name: Lieutenant Governor Janice McGeachin, Senator Lora Reinbold, Representative David Eastment, et al. (Elected State Officials)
    D. John Sauer
    Counsel of Record Office of the Attorney General
    Supreme Court Building, 207 West High Street
    P.O. Box 899
    Jefferson City, MO 65102

    john.sauer@ago.mo.gov 573-751-3321
    Party name: State of Missouri
    John C. Eastman
    Counsel of Record One University Drive
    Orange, CA 92866

    jeastman@chapman.edu 714-628-2587
    Party name: Donald J. Trump, President of the United States
    Richard Douglas Bernstein
    Counsel of Record 1875 K Street, N.W.
    Washington, DC 20006

    rbernsteinlaw@gmail.com 3017752064
    Party name: Carter Phillips, et al.
    John Allen Eidsmoe
    Counsel of Record One Dexter Avenue
    Montgomery, AL 36064

    eidsmoeja@juno.com 3343241812
    Party name: Constitutional Attorneys
    Brunn Wall Roysden III
    Counsel of Record Office of the Arizona Attorney General
    2005 N. Central Ave.
    Phoenix, AZ 85004

    beau.roysden@azag.gov 602-542-5025
    Party name: State of Arizona and Mark Brnovich, Arizona Attorney General
    Erick G. Kaardal
    Counsel of Record Mohrman, Kaardal & Erickson P.A.
    150 South Fifth Street, Suite 3100
    Minneapolis, MN 55402

    kaardal@mklaw.com 612-465-0927
    Party name: Ron Heuer, et al.
    Benjamin Michael Flowers
    Counsel of Record Ohio Attorney General Dave Yost
    30 E. Broad St.
    Columbus, OH 43215

    benjamin.flowers@ohioattorneygeneral.gov 6144668980
    Party name: State of Ohio
    Jason Brett Torchinsky
    Counsel of Record Holtzman Vogel Josefiak Torchinsky PLLC
    15405 John Marshall Hwy
    Haymarket, VA 20169

    Jtorchinsky@hvjt.law 540 341 8808
    Party name: Certain Select Pennsylvania State Senators
    Loren L. AliKhan
    Counsel of Record D.C. Office of the Attorney General
    Office of the Solicitor General
    400 6th Street, NW, Suite 8100
    Washington, DC 20001

    loren.alikhan@dc.gov 202-727-6287
    Party name: District of Columbia on behalf of 22 States and Territories
    Dennis Grossman
    Counsel of Record 6701 Sunset Drive
    Suite 104
    Miami, FL 33143

    dagrossmanlaw@aol.com 5164666690
    Party name: Christian Family Coalition
    Douglas Alexander Stewart Chalmers Jr.
    Counsel of Record Chalmers & Adams LLC
    5805 State Bridge Road #G77
    Johns Creek, GA 30097

    dchalmers@cpblawgroup.com 770-630-5927
    Party name: Bryan Cutler Speaker of the Pennsylvania House of Representatives and Kerry Benninghoff Majority Leader of the Pennsylvania House of Representatives
    Phillip L. Jauregui Jr.
    Counsel of Record 1300 I Street, NW
    Suite 400 E
    Washington, DC 20005

    plj@judicialactiongroup.com 202-216-9309
    Party name: U.S. Representative Mike Johnson and 105 Other Members
    David H. Fink
    Counsel of Record Fink Bressack
    38500 Woodward Ave, Suite 350
    Bloomfield Hills, MI 48304

    dfink@finkbressack.com 2489712500
    Party name: City of Detroit

    Plaintiff Attorney

    Attorneys for Plaintiff
    Ken Paxton
    Counsel of Record Attorney General of Texas
    P.O. Box 12548 (MC 059)
    Austin, TX 78711-2548

    kenneth.paxton@oag.texas.gov 512-936-1414
    Party name: State of Texas

    Defendant Attorney

    Attorneys for Respondents
    John Bartley DeLone
    Counsel of Record Attorney General's Office
    Pennsylvania Office of Attorney General -Appellate Litigation Section
    15th Floor, Strawberry Square
    Harrisburg, PA 17120

    jdelone@attorneygeneral.gov 717-783-3226
    Party name: Commonwealth of Pennsylvania
    Thomas Charles Bellavia
    Counsel of Record Wisconsin Department of Justice
    17 W. Main Street
    PO Box 7857
    Madison, WI 53707-7857

    bellaviatc@doj.state.wi.us 6083337519
    Party name: State of Wisconsin
    Fadwa A. Hammoud
    Counsel of Record Michigan Department of Attorney General
    P.O. Box 30212
    Lansing, MI 48909

    HammoudF1@michigan.gov 517-335-7628
    Party name: State of Michigan
    Andrew Alan Pinson
    Counsel of Record Office of the Georgia Attorney General
    40 Capital Square SW
    Atlanta, GA 30334-1300

    apinson@law.ga.gov
    404-458-3409
    Party name: State of Georgia

    Judges Comments

    MOTION FOR EXPEDITED CONSIDERATION OF THE
    MOTION FOR LEAVE TO FILE A BILL OF COMPLAINT AND
    FOR EXPEDITION OF ANY PLENARY CONSIDERATION OF
    THE MATTER ON THE PLEADINGS IF PLAINTIFFS’
    FORTHCOMING MOTION FOR INTERIM RELIEF IS NOT
    GRANTED

    Comments

    Like much else in 2020, the 2020 election was compromised by the COVID-19
    pandemic. Even without Defendant States’ challenged actions here, the election
    nationwide saw a massive increase in fraud-prone voting by mail. See BUILDING
    CONFIDENCE IN U.S. ELECTIONS: REPORT OF THE COMMISSION ON FEDERAL ELECTION
    REFORM, at 46 (Sept. 2005) (absentee ballots are “the largest source of potential voter
    fraud”). Combined with that increase, the election in Defendant States was also
    compromised by numerous changes to the State legislatures’ duly enacted election
    statutes by non-legislative actors—including both “friendly” suits settled in courts
    and executive fiats via guidance to election officials—in ways that undermined state
    statutory ballot-integrity protections such as signature and witness requirements for
    casting ballots and poll-watcher requirements for counting them. State legislatures
    have plenary authority to set the method for selecting presidential electors, Bush v.
    Gore, 531 U.S. 98, 104 (2000) (“Bush II”), and “significant departure from the
    legislative scheme for appointing Presidential electors presents a federal
    constitutional question.” Id. at 113 (Rehnquist, C.J., concurring); accord Bush v. Palm
    Beach Cty. Canvassing Bd., 531 U.S. 70, 76 (2000) (“Bush I”).
    Plaintiff State has not had the benefit of formal discovery prior to submitting
    this original action. Nonetheless, Plaintiff State has uncovered substantial evidence
    discussed below that raises serious doubts as to the integrity of the election processes
    in Defendant States. Although new information continues to come to light on a daily
    basis, as documented in the accompanying Appendix (“App.”), the voting
    irregularities that resulted from Defendant States’ unconstitutional actions include
    the following:
    • Jesse Jacob, a decades-long City of Detroit employee assigned to work in the
    Elections Department for the 2020 election testified (App. 34a-36a) that she
    was “instructed not to look at any of the signatures on the absentee ballots,
    and I was instructed not to compare the signature on the absentee ballot with
    the signature on file” in direct contravention of MCL § 168.765a(6), which
    requires all signatures on ballots be verified.
    • Ethan J. Pease, a box truck delivery driver subcontracted to the U.S. Postal
    Service (“USPS”) to deliver truckloads of mail-in ballots to the sorting center
    in Madison, WI, testified that USPS employees were backdating ballots
    received after November 3, 2020. Decl. of Ethan J. Pease at ¶¶ 3-13. (App.
    149a-51a). Further, Pease testified how a senior USPA employee told him on
    November 4, 2020 that “An order came down from the Wisconsin/Illinois
    Chapter of the Postal Service that 100,000 ballots” and how the USPSA
    dispatched employees to “find[] … the ballots.” ¶¶ 8-10. One hundred
    thousand ballots “found” after election day far exceeds former Vice President
    Biden margin of 20,565 votes over President Trump.
    On August 7, 2020, the League of Women Voters of Pennsylvania and others
    filed a complaint against Secretary Boockvar and other local election officials,
    seeking “a declaratory judgment that Pennsylvania existing signature
    verification procedures for mail-in voting” were unlawful for a number of
    reasons, League of Women Voters of Pennsylvania v. Boockvar, No. 2:20-cv03850-PBT, (E.D. Pa. Aug. 7, 2020), which the Pennsylvania defendants
    quickly settled resulting in guidance (App. 109a-114a)
    1 issued on September
    11, 2020, stating in relevant part: “The Pennsylvania Election Code does not
    authorize the county board of elections to set aside returned absentee or mailin ballots based solely on signature analysis by the county board of elections.”
    App. 113a.
    • Acting under a generally worded clause that “Elections shall be free and
    equal,” PA. CONST. art. I, §5, cl. 1, a 4-3 majority of Pennsylvania’s Supreme
    Court in Pa. Democratic Party v. Boockvar, 238 A.3d 345 (Pa. 2020), extended
    the statutory deadline for mail-in ballots from Election Day to three days after
    Election Day and adopted a presumption that even non-postmarked ballots
    were presumptively timely. In addition, a great number of ballots were
    received after the statutory deadline. Because Pennsylvania misled this Court
    about segregating the late-arriving ballots and instead commingled those
    ballots, it is now impossible to verify Pennsylvania’s claim about the number
    of ballots affected.
    • Contrary to Pennsylvania election law on providing poll-watchers access to the
    opening, counting, and recording of absentee ballots, local election officials in
    Philadelphia and Allegheny Counties decided not to follow 25 PA. STAT. §
    3146.8(b). App. 127a-28a.
    • Prior to the election, Secretary Boockvar sent an email to local election officials
    urging them to provide opportunities for various persons—including political
    parties—to contact voters to “cure” defective mail-in ballots. This process
    clearly violated several provisions of the state election code. App. 122a-24a. By
    removing the ballots for examination prior to seven o’clock a.m. on election day,
    Secretary Boockvar created a system whereby local officials could review
    ballots without the proper announcements, observation, and security. This
    entire scheme, which was only followed in Democrat majority counties, was
    blatantly illegal in that it permitted the illegal removal of ballots from their
    locked containers prematurely. App. 122a-24a.
    • On December 4, 2020, fifteen members of the Pennsylvania House of
    Representatives issued a report (App. 139a-45a) to Congressman Scott Perry
    stating that “[t]he general election of 2020 in Pennsylvania was fraught with
    … documented irregularities and improprieties associated with mail-in
    balloting … [and] that the reliability of the mail-in votes in the Commonwealth
    of Pennsylvania is impossible to rely upon.” The report detailed, inter alia,
    that more than 118,426 mail-in votes either had no mail date, were returned
    before they were mailed, or returned one day after the mail date. The Report
    also stated that, based on government reported data, the number of mail-in
    ballots sent by November 2, 2020 (2.7 million) somehow ballooned by 400,000,
    to 3.1 million on November 4, 2020, without explanation.
    • On March 6, 2020, in Democratic Party of Georgia v. Raffensperger, No. 1:19-
    cv-5028-WMR (N.D. Ga.), Georgia’s Secretary of State entered a Compromise
    Settlement Agreement and Release (App. 19a-24a) with the Democratic Party
    of Georgia (the “Settlement”) to materially change the statutory requirements
    for reviewing signatures on absentee ballot envelopes to confirm the voter’s
    identity by making it far more difficult to challenge defective signatures
    beyond the express mandatory procedures set forth at GA. CODE § 21-2-
    386(a)(1)(B), which is particularly disturbing because the legislature allowed
    persons other than the voter to apply for an absentee ballot, GA. CODE § 21-2-
    381(a)(1)(C), which means that the legislature likely was relying heavily on the
    signature-verification on ballots under GA. CODE § 21-2-386.
    • Numerous poll challengers and an Election Department employee
    whistleblower have testified that the signature verification requirement was
    ignored in Wayne County in a case currently pending in the Michigan Supreme
    Court. App. 25a-51a.
    The probability of former Vice President Biden winning the popular vote in the
    four Defendant States—Georgia, Michigan, Pennsylvania, and Wisconsin—
    independently given President Trump’s early lead in those States as of 3 a.m.
    on November 4, 2020, is less than one in a quadrillion, or 1 in
    1,000,000,000,000,000. For former Vice President Biden to win these four
    States collectively, the odds of that event happening decrease to less than one
    in a quadrillion to the fourth power (i.e., 1 in 1,000,000,000,000,0004). See Decl.
    of Charles J. Cicchetti, Ph.D. (“Cicchetti Decl.”) at ¶¶ 14-21, 30-31 (App. 4a-7a,
    9a).
    • The same less than one in a quadrillion statistical improbability of Mr. Biden
    winning the popular vote in the four Defendant States—Georgia, Michigan,
    Pennsylvania, and Wisconsin—independently exists when Mr. Biden’s
    performance in each of those Defendant States is compared to former Secretary
    of State Hilary Clinton’s performance in the 2016 general election and
    President Trump’s performance in the 2016 and 2020 general elections. Again,
    the statistical improbability of Mr. Biden winning the popular vote in these
    four States collectively is 1 in 1,000,000,000,000,0005. Id. 10-13, 17-21, 30-31
    (App. 3a-7a, 9a).
    • Georgia’s unconstitutional abrogation of the express mandatory procedures for
    challenging defective signatures on ballots set forth at GA. CODE § 21-2-
    386(a)(1)(B) resulted in far more ballots with unmatching signatures being
    counted in the 2020 election than if the statute had been properly applied. The
    2016 rejection rate was more than seventeen times greater than in 2020. See
    Cicchetti Decl. at ¶ 24 (App. 7a). As a consequence, applying the rejection rate
    in 2016, which applied the mandatory procedures, to the ballots received in
    2020 would result in a net gain for President Trump of 25,587 votes. This would
    be more than needed to overcome the Biden advantage of 12,670 votes, and
    Trump would win by 12,917 votes. See App. 8a.
    • The two Republican members of the Board rescinded their votes to certify the
    vote in Wayne County, and signed affidavits alleging they were bullied and
    misled into approving election results and do not believe the votes should be
    certified until serious irregularities in Detroit votes are resolved. See Cicchetti
    Decl. at ¶ 29 (App. 8a).
    • The Wayne County Statement of Votes Report lists 174,384 absentee ballots
    out of 566,694 absentee ballots tabulated (about 30.8%) as counted without a
    registration number for precincts in the City of Detroit. See Cicchetti Decl. at
    ¶ 27 (App. 8a). The number of votes not tied to a registered voter by itself
    exceeds Vice President Biden’s margin of margin of 146,007 votes by more than
    28,377 votes. The extra ballots cast most likely resulted from the phenomenon
    of Wayne County election workers running the same ballots through a
    tabulator multiple times, with Republican poll watchers obstructed or denied
    access, and election officials ignoring poll watchers’ challenges, as documented
    by numerous declarations. App. 25a-51a.
    As a net result of these challenges, the close election result in Defendant States—on
    which the presidential election turns—is indeterminate. Put another way, Defendant
    States’ unconstitutional actions affect outcome-determinative numbers of popular
    votes, that in turn affect outcome-determinative numbers of electoral votes.
    To remedy Texas’s claims and remove the cloud over the results of the 2020
    election, expedited review and interim relief are required. December 8, 2020 is a
    statutory safe harbor for States to appoint presidential electors, and by statute the
    electoral college votes on December 14. See 3 U.S.C. §§ 7, 15. In a contemporaneous
    filing, Texas asks this Court to vacate or enjoin—either permanently, preliminarily,
    or administratively—Defendant States from certifying their electors and
    participating in the electoral college vote. As permanent relief, Texas asks this Court
    to remand the allocation of electors to the legislatures of Defendant States pursuant
    to the statutory and constitutional backstop for this scenario: “Whenever any State
    has held an election for the purpose of choosing electors, and has failed to make a
    choice on the day prescribed by law, the electors may be appointed on a subsequent
    day in such a manner as the legislature of such State may direct.” 3 U.S.C. § 2
    (emphasis added); U.S. CONST. art. II, § 1, cl. 2.
    Significantly, State legislatures retain the authority to appoint electors under
    the federal Electors Clause, even if state laws or constitutions provide otherwise.
    McPherson v. Blacker, 146 U.S. 1, 35 (1892); accord Bush I, 531 U.S. at 76-77; Bush
    II, 531 U.S at 104. For its part, Congress could move the December 14 date set for the
    electoral college’s vote, as it has done before when faced with contested elections. Ch.
    37, 19 Stat. 227 (1877). Alternatively, the electoral college could vote on December 14
    without Defendant States’ electors, with the presidential election going to the House
    of Representatives under the Twelfth Amendment if no candidate wins the required
    270-vote majority.
    What cannot happen, constitutionally, is what Defendant States appear to
    want (namely, the electoral college to proceed based on the unconstitutional election
    in Defendant States):
    When the state legislature vests the right to vote for
    President in its people, the right to vote as the legislature
    has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each
    vote and the equal dignity owed to each voter.
    Bush II, 531 U.S. at 104. Proceeding under the unconstitutional election is not an
    option.
    Pursuant to 28 U.S.C. 1251(a), Plaintiff State has filed a motion for leave to
    file a bill of complaint today. As set forth in the complaint and outlined above, all
    Defendant States ran their 2020 election process in noncompliance with the ballotintegrity requirements of their State legislature’s election statutes, generally using
    the COVID-19 pandemic as a pretext or rationale for doing so. In so doing, Defendant
    States disenfranchised not only their own voters, but also the voters of all other
    States: “the impact of the votes cast in each State is affected by the votes cast for the
    various candidates in other States.” Anderson v. Celebrezze, 460 U.S. 780, 795 (1983).

    Read More:https://www.supremecourt.gov/DocketPDF/22/22O155/163048/20201208132827887_TX-v-State-ExpedMot%202020-12-07%20FINAL.pdf

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    Document Links 1 (Scribd et. al)

    https://www.supremecourt.gov/DocketPDF/22/22O155/163048/20201208132827887_TX-v-State-ExpedMot%202020-12-07%20FINAL.pdf

    Document Link 2

    https://www.supremecourt.gov/DocketPDF/22/22O155/163234/20201209155327055_No.%2022O155%20Original%20Motion%20to%20Intervene.pdf

    Document Link 3

    https://www.supremecourt.gov/DocketPDF/22/22O155/163215/20201209144840609_2020-12-09%20-%20Texas%20v.%20Pennsylvania%20-%20Amicus%20Brief%20of%20Missouri%20et%20al.%20-%20Final%20with%20Tables.pdf

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