RUSH: Here is Blaine in Toledo, Ohio. Glad you waited. Got a great point I think coming up here. How are you?
CALLER: Hi, Rush. Blessings and thanks for all you do from Toledo.
RUSH: Well, thank you, sir.
CALLER: I spent part of the morning reading partway through the Texas lawsuit, and I think it’s a masterpiece, well written, as you would expect, but I think we’re gonna know a lot more about where we stand as a country by the end of the —
RUSH: Let me ask you about this to make sure that I know what you’re talking about. Is this the lawsuit, State of Texas, they’re aiming to help Trump upend the results here. They said yesterday or today, rather, they have filed suit against the states of Georgia, Michigan, Pennsylvania, and Wisconsin, State of Texas has, at the Supreme Court, calling changes they made to election procedures amid the coronavirus pandemic unlawful. Is that the suit you’re talking about?
CALLER: That is precisely the suit, and they have an excellent case. The fact that a state is suing other states means it goes directly to the Supreme Court. They don’t have to bother with anybody else. And they also, the suit is not relying on accusing individuals of fraud or cheating. Instead, it’s based on uncontested facts, which are these elected officials, usually the governors and their secretaries of state, altered the election laws without referring to states’ legislators who have plenary power to determine how elections are run in each state.
RUSH: That’s exactly right.
CALLER: In other words, by taking these actions, they all violated the U.S. Constitution. And I don’t see how the court can turn this down, because if they turn it down — today they were asking to sue. Today was a plea for certiorari I think is the legal term, but basically they’re saying, “Supreme Court, please let us present this case.” If the Supreme Court doesn’t take the case, they will be enabling all politicians in all states throughout the United States to meddle with election laws and ruin the country. And I won’t make that point any further. We all know that.
RUSH: And so this is why you believe that we’re gonna find out very soon how serious the Supreme Court is — we know that Justice Alito is serious.
CALLER: Yes.
RUSH: He had a December 9th deadline for people to respond to him, which is tomorrow, in Pennsylvania. He did not like what he was seeing happen in Pennsylvania at all with the ballots, with the counting, and how they had mixed the ballots, they had not separated them and had them sequestered. They were all mixed together. He said, “You can’t do that. I want those separated. I want them shown which ones are which by December the 9th.”
But I gotta tell you, Blaine is exactly right here. The court does not have to take the case. They’re not obligated to hear it. But, therefore, this will demonstrate how serious the court is. One state is suing a bunch of other states over the simple fact that its state legislatures who have exclusive power to change election law in the state. It’s not the governor. It’s not the secretary of state. It’s not any other state official. It is the state legislature. And if end runs took place around them, then the court, if they take the case, it’s a slam dunk, I would think.
CALLER: I agree. I agree. I woke up this morning, and the only place I saw this was on Breitbart. And then within an hour or two it appeared on Red State, but I checked ABC, NBC. Nobody had anything about it.
RUSH: There isn’t any news anymore. This is another great definition of it. There isn’t any news. And part of the definition of there’s no news is what they don’t cover.
CALLER: Right. But reading through this case, it’s, to me, I think they have to take it or else they’re green lighting all corruption. We’re done. We’re done. If they do take it, how can they find otherwise? But this is crafted — the Texas attorney general crafted this to make it as easy as possible for the Supreme Court to grant what they’re asking because in each case they’re saying that Texas voters were being disenfranchised by corruption — you know, violations of the Constitution in these other states by officers that weren’t qualified —
RUSH: Right.
CALLER: — to do the actions that they did.
RUSH: That deserves a further explanation, and I have to take a break here because I’m out of time.
BREAK TRANSCRIPT
RUSH: You might be wondering, what does Texas care about Georgia, Michigan, Pennsylvania, Wisconsin? If those four states are allowed to violate election law and if they are able to render state legislators irrelevant in writing election law, then they are being affected in Texas by violation of law, and they don’t want that to happen. They’re trying to make sure that election law is kept sacrosanct and that the Constitution is not violated. It’s a big case.
BREAK TRANSCRIPT
RUSH: Let me try again with a little bit more time here to explain why Texas is suing four other states. And it is a big case. If the Supreme Court does not take this — well, maybe there’s something I don’t know that would give them grounds not to take it, but this is a very, very serious thing here, because you have four states that violated their own laws in the process of counting ballots and assigning ballots. They are Georgia, Michigan, Pennsylvania, and Wisconsin. And the lawsuit filed by the state of Texas says that changes that these four states made to election procedures among the coronavirus pandemic are illegal. They’re not lawful.
Now, Ken Paxton is the Republican attorney general of Texas. The lawsuit was filed directly with the Supreme Court, as is permitted for certain litigation between states. The Supreme Court currently has a 6-3 conservative majority, including three justices appointed by Trump. Now, the court doesn’t have to take the case. They don’t have to take any case.
But this is a very serious allegation, because in these states, any election, any changes to election law must come from the state legislatures. They have what’s called plenary power over election law. Individual officeholders in these states cannot arbitrarily change election law, whether there’s a pandemic or not, whether there is some kind of a natural disaster brewing out there or not, they just can’t do it.
So people have said, “Well, why does Texas care?” Well, because if these four states are allowed to get away with basically undermining the United States Constitution, then all existing election law is moot. It’s out the window. And that’s why it is thought that the court here almost has to take it. Look, they don’t have to take anything. So it’s risky to put it that way. But the ramifications of not taking the case are pretty high.
BREAK TRANSCRIPT
RUSH: Now, here’s more on the Texas case. This is a piece by Kris Kobach: “Texas Case Challenges Election Directly at Supreme Court – The State of Texas filed a lawsuit that is far more important than all of the others surrounding the presidential election of November 3rd.
“Texas brought a suit against four states that did something they cannot do: they violated the U.S. Constitution in their conduct of the presidential election. And this violation occurred regardless of the amount of election fraud that may have resulted. The four defendant states are Georgia, Michigan, Pennsylvania, and Wisconsin. Texas filed the suit directly in the Supreme Court. Article III of the Constitution lists a small number of categories of cases in which the Supreme Court has ‘original jurisdiction.'”
Meaning they can hear the case the first time it’s presented. Supreme Court’s an appellate court. And you gotta go through a bunch of different appeals stages to even get there. But this case can be heard the first time at the Supreme Court.
Now, “One of those categories concerns ‘Controversies between two or more states.'” Well, that’s what this is. “Texas’s suit is exactly that. The Supreme Court has opined in the past that it may decline to accept such cases, at its discretion. But it is incumbent upon the high court to take this case, especially when it presents a such a cut-and-dried question of constitutional law, and when it could indirectly decide who is sworn in as President on January 20, 2021.
“The Texas suit is clear, and it presents a compelling case. The four offending states each violated the U.S. Constitution in two ways. First, they violated the Electors Clause of Article II of the Constitution when executive or judicial officials in the states changed the rules of the election without going through the state legislatures. The Electors Clause requires that each State ‘shall appoint’ its presidential electors ‘in such Manner as the Legislature thereof may direct.'”
BREAK TRANSCRIPT
RUSH: Here is the second constitutional violation that these four states engaged in who Texas is suing. “The second constitutional violation occurred when individual counties in each of the four states changed the way that they would receive, evaluate, or treat the ballots. Twenty years ago, in the landmark case of Bush v. Gore, the Supreme Court held that it violated the Equal Protection Clause of the Fourteenth Amendment when one Florida county treated ballots one way, and another Florida county treated ballots a different way. Voters had the constitutional right to have their ballots treated equally from county to county.”
Now, in these four states there is no question that the ballots were treated differently. That’s part and parcel of what happened here. Some of them were in suitcases. Some of them were under tables. Some of them were dragged out when Republican observers were sent out of the room. Some of them were allowed. Some of them weren’t.
Let me go through that again. I want to make sure you understand what happened. The administrator of the City of Milwaukee elections commission ignored the requirements of Wisconsin law and told election workers to go ahead and write in the addresses of witnesses on the envelopes containing mail-in ballots. But other ballots without witness addresses were deemed invalid throughout the state. They threw them out. But not in Milwaukee. The head of the Milwaukee elections commission told observers, go ahead and write in an address on these ballots. Unequal treatment of ballots. Violation of the equal-protection clause.
Now, “Importantly, the Texas lawsuit presents a pure question of law. It is not dependent upon disputed facts. Although these unconstitutional changes to the election rules could have facilitated voter fraud, the State of Texas doesn’t need to prove a single case of fraud to win. It is enough that the four states violated the Constitution.” And that is what this suit attempts to illustrate. They don’t have to prove a single case of fraud. All they have to do is show these four states violated the Constitution, and that’s easy because they’ve already done it.
So “The lawsuit asks the Supreme Court to remand the appointment of electors in the four states back to the state legislatures.” They’re the ones who have the power to name them anyway. “As the Supreme Court said in 1892 in the case of McPherson v. Blacker, ‘Whatever provisions may be made by statute, or by the state constitution, to choose electors by the people, there is no doubt of the right of the legislature to resume the power at any time.'”
Now, “If Texas prevails, the four state legislatures could follow any number of courses in appointing their presidential electors. They could assess the election results and try to exclude those ballots that were counted in violation of state law in order to determine a winner, or they could divide their Electoral College votes between the two candidates, or they could follow a different path. But they have to follow the Constitution in whatever they do.” They have not followed the Constitution to date. This is what Texas is asserting. And they don’t want federal election law rendered moot and pointless and gutless or without any merit because of these four states.
Now, “In the rest of country, the states followed the constitutional rules in appointing presidential electors.” Just these four states where, magically, Plugs Biden ends up getting enough votes in swing-state cities to put him over the top, despite the fact that he attracted fewer votes here and there, among minorities and various other groups. These four states, “the offending states cannot be allowed to violate those same rules.” You can’t have 46 states following the law and four states flouting it. You just can’t. And that’s why it’s thought the Supreme Court is going to take the case. “It’s not just a matter of constitutional law. It’s a matter of basic fairness.”
DERSHOWITZ: The Constitution permits a state to sue another state in the Supreme Court as of court of original jurisdiction, that means it’s like a trial court. It rarely happens and it almost never succeeds, but it’s a very creative approach. It’s a stretch and it’s never been tried before. It probably will be taken seriously by the Supreme Court. Will it result in an undoing of the election? Almost certainly not. Will the Supreme Court take the case? Who knows, they’ve never had a case like this presented before. A-plus for creativity, but whether or not it will work in the end is very doubtful.
RUSH: Oh, that’s quite interesting. Professor Dersh says the Constitution permits a state to sue another state at the Supreme Court as a court of original jurisdiction, meaning it doesn’t have to be an appeals case. That means it’s like a trial court at the Supreme Court. It rarely happens. It almost never succeeds, says Professor Dersh. But he hands ’em credit; very creative approach. And he doubts it’ll overturn or undo the election, and he doubts they’ll even take the case. But I wanted to get all points of view to you out there.
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