[EdG Note: I am not a lawyer and don't play one on TV. I have a bit of legal experience representing myself in business disputes and I worked briefly as a paralegal. Most of my career has been in the computer industry. I'll keep the legal minutiae to a minimum and, of course, any opinions expressed are my own.]

The Lie

This is from the motion filed by Texas Attorney General Ken Paxton seeking to overturn the presidential election in 4 states (Georgia, Michigan, Pennsylvania, and Wisconsin).

As set forth in the accompanying brief and complaint, the 2020 election suffered from significant and unconstitutional irregularities in the Defendant States:

• Non-legislative actors’ purported amendments to States’ duly enacted election laws, in violation of the Electors Clause’s vesting State legislatures with plenary authority regarding the appointment of presidential electors.

This Court should grant leave to file the complaint and, ultimately, enjoin the use of unlawful election results without review and ratification by the Defendant States’ legislatures and remand to the Defendant States’ respective legislatures to appoint Presidential Electors in a manner consistent with the Electors Clause and pursuant to 3 U.S.C. § 2.

Conveniently, the 4 states named in the suit have Republican legislatures that would, presumably, award their states electors and thus the presidency to President Trump as a consolation prize for losing the election by 7 million popular votes and 74 electoral votes. All Hail Caesar!! Er, Trump!!

The Rebuttal

What is plenary power? Complete power over a particular area with no limitations.

Paxton is plainly wrong in his bulleted statement. Article II, Section 1, Clauses 2 of the US Constitution says "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors". It goes on to say "The Congress may determine the Time of chusing the Electors". Two points:

1. "Legislature thereof may direct" does give broad power. Including the power to delegate election related duties to the Executive branch
2. "Congress may determine the time of chusing". In other words, Legislatures do not in fact have complete power with no limitations

Election Truthers often forget the delegation power and falsely claim that only the state legislature can make election laws (which is true with caveats) and that governors and attorney generals can't change election rules (which is false). Obviously, state laws give specific election powers to the Executive branch. For example, the preamble of Michigan's election law (Act 116 of 1954) states:

AN ACT to reorganize, consolidate, and add to the election laws; to provide for election officials and prescribe their powers and duties; to prescribe the powers and duties of certain state departments, state agencies, and state and local officials and employees;

That clearly shows the legislature chose to give up some of its Constitutional power. Only a fool would believe state legislators personally make every rule and regulation.

Here's a short example of what Michigan's legislature delegated to the Secretary of State:

168.31 Secretary of state; duties as to elections; rules.

(1) The secretary of state shall do all of the following:
(a) Subject to subsection (2), issue instructions and promulgate rules pursuant to the administrative procedures act of 1969 ... for the conduct of elections and registrations in accordance with the laws of this state.
(b) Advise and direct local election officials as to the proper methods of conducting elections.
etc.

The same law gives the Michigan governor the power to certify the slate of electors for the Electoral College. If the legislature did decide to push through Trump electors, Governor Whitmer's refusal to certify would end that push.

But wait!! There's more!!

Skipping over the 6-day safe harbor rule, which expired yesterday and means Trump officially lost and Paxton's lawsuit is moot, there's one further item to consider. This item is unique to Michigan among the 4 states sued by Texas. The item is Michigan Proposal 3, Voting Policies in State Constitution Initiative (2018).

Texas AG Paxton claims in his motion there were affidavits from dozens of witnesses testifying under oath that there are more than 173,000 ballots in the Wayne County, MI center that cannot be tied to a registered voter.

Proposal 3 added this clause to Michigan's Constitution: The right to use secret ballots. In other words, the state Constitution requires that BALLOTS CANNOT BE TIED TO A REGISTERED VOTER. Wayne County, MI did absolutely nothing wrong.

Paxton also claims "Defendant States all materially weakened, or did away with, security measures, such as witness or signature verification procedures, required by their respective legislatures."

Yet Michigan's absentee ballot procedures consist of the following security measures:

• You must be a registered voter to receive an absent voter ballot
• Your signature on the ballot request is checked against your voter registration record before a ballot is issued
• Your ballot will not be counted unless your signature is on the return envelope and matches your signature on file

In addition, Paxton claims

Secretary Benson’s flooding of Michigan with millions of absentee ballot applications prior to the 2020 general election violated M.C.L. § 168.759(3). That statute limits the procedures for requesting an absentee ballot to three specified ways:

(3) An application for an absent voter ballot under this section may be made in any of the following ways:
(a) By a written request signed by the voter.
(b) On an absent voter ballot application form provided for that purpose by the clerk of the city or township.
(c) On a federal postcard application.

[EdG Note: This alleged transgression pertains only to the application for the absentee ballot, not the ballot itself.]

The law says "An application for an absent voter ballot under this section may be made". Not must be made. The law lists 3 ways voters may request applications. The law was written in 1954. Technology has progressed a bit since then. To wit, you can now:

• Fill out an online application at the state portal
• Download the application form from Michigan.gov/Vote
• Have the application mailed automatically by joining the permanent absent voter list

Also, the Secretary of State didn't single-handedly "flood Michigan with millions of absentee ballot applications".

• Local election clerks mailed 1.3 million to voters on the permanent absent voter list
• The clerks of some jurisdictions mailed applications to all local registered voters (bonus points if you can guess whether those jurisdictions were Republican or Democratic)
• The Michigan Department of State’s Bureau of Elections ensured all remaining registered voters received an application

Court of Appeals

Mailing of absent voter applications has been through 2 Michigan courts. The Court of Claims ruled in the Secretary of State's favor. The Court of Appeals upheld that ruling.

The Michigan Court of Appeals on Wednesday affirmed a lower court’s ruling that Secretary of State Jocelyn Benson acted lawfully when she she sent absentee voter ballot applications to all registered voters ahead of primary elections.

In a 2-1 decision, the appellate court found that state law allows Benson the authority to provide unsolicited applications to absentee ballots.

“As chief elections officer, with constitutional authority to ‘perform duties prescribed by law,’ the Secretary of State had the inherent authority to take measures to ensure that voters were able to avail themselves of the constitutional rights established by Proposal 3 regarding absentee voting,” Judge James Robert Redford and Jonathan Tukel found in the majority ruling.

Reference: Appeals court rules sending absentee ballot applications to all registered voters was legal

Other Election Fraud Lies Essays

Election Fraud Lies: The Full List of Essays