by Atty. Emmanuel S. TiponMillions of Americans – regardless of party – want to know the truth. Did Trump or Biden win? Was the Supreme Court adlibbing “You can’t handle the truth” when it denied the petition of Texas v. Pennsylvania, Georgia, Michigan and Wisconsin to determine who won the election? Was the Supreme Court saying: You already know the truth. Trump won. The election was stolen from him. But we do not want to get involved in politics.Or was the Supreme Court acting like Pilate who asked, “What is truth?” but left without waiting for the answer because he knew the answer but could not handle it?Does not the Supreme Court have a duty to decide controversies brought before it that affect the entire nation instead of seeking refuge behind the nebulous word “standing”? Supreme Court OrderHere is the full text of the Supreme Court’s 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.”
Case No. 22O155, 592 U.S. ___, Texas v Pennsylvania, December 11, 2020.
Supreme Court Cannot Decline Cases Under Original JurisdictionIn Arizona v. California, 589 U. S. ___ (2020), Justice Thomas, with whom Justice Alito joined, dissented, saying:“The Constitution establishes our original jurisdiction in mandatory terms. Article III states that, “[i]n all Cases . . . in which a State shall be [a] Party, the supreme Court shall have original Jurisdiction.” §2, cl. 2 (emphasis added). In this circumstance, “[w]e have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given.” Cohens v. Virginia, 6 Wheat. 264, 404 (1821) (Marshall, C. J., for the Court).“Our original jurisdiction in suits between two States is also “exclusive.” §1251(a). As I have previously explained, “[i]f this Court does not exercise jurisdiction over a controversy between two States, then the complaining State has no judicial forum in which to seek relief.” Nebraska v. Colorado, 577 U. S. ___, ___ (2016) (opinion dissenting from denial of motion for leave to file complaint) (slip op., at 2). Denying leave to file in a case between two or more States is thus not only textually suspect, but also inequitable.”
“But the Court [majority] has failed to provide any analysis of the Constitution’s text to justify our discretionary approach… Arizona invites us to reconsider our discretionary approach, and I would do so.”Standing Not Required By ConstitutionWhen Madame Roland, a friend of Marie Antoinette, was about to be guillotined, she asked the French revolutionaries. “Why are you doing this to me?”
They shouted: “We are doing this in the name of liberty.” Madame Roland exclaimed: “Liberty, oh liberty, how many crimes have been committed in thy name?”When the Supreme Court was asked by the State of Texas and 17 other states to determine who won the election, the Supreme Court refused, saying Texas had no “standing.” Standing, oh standing, how many injustices have been committed in thy name?There is no provision in the Constitution requiring that a state suing another state must have standing. Article III, Section 2 of the Constitution provides: “The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;–to all cases affecting ambassadors, other public ministers and consuls;–to all cases of admiralty and maritime jurisdiction;–to controversies to which the United States shall be a party;–to controversies between two or more states; . . . In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction.”So, why is the Supreme Court asking Texas to show “standing”? “Standing” is required if a person sues another person in federal court. Thus in Dred Scott v. Sandford, 60 US 393 (1857) a majority of the U.S. Supreme Court held that a “negro” whose ancestors were imported into the U.S. and sold as slaves did not have standing to sue his owner in federal court because he was not an American citizen but property.
Texas Has Standing to Sue
The majority in Texas v. Pennsylvania did not explain why Texas did not have standing. It simply said that Texas has not “demonstrated a judicially cognizable interest in the manner in which another State conducts its elections.”
Assuming, without conceding, that “standing” is a requirement for the Supreme Court to exercise its original jurisdiction in cases between the states, Texas did show “standing” and a “judicially cognizable interest”. Texas said in its Motion for Leave to File Bill of Complaint that “the 2020 election suffered from significant and unconstitutional irregularities in the Defendant States:
(1) 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.
(2) Intrastate differences in the treatment of voters, with more favorable allotted to voters – whether lawful or unlawful – in areas administered by local government under Democrat control and with populations with higher ratios of Democrat voters than other areas of Defendant States.
(3) The appearance of voting irregularities in the Defendant States that would be consistent with the unconstitutional relaxation of ballot-integrity protections in those States’ election laws.
The Motion pointed out that:
“All these flaws – even the violations of state election law – violate one or more of the federal requirements for elections (i.e., equal protection, due process, and the Electors Clause) and thus arise under federal law. See Bush v Gore, 531 U.S. 98, 113 (2000) (“significant departure from the legislative scheme for appointing Presidential electors presents a federal constitutional question”) (Rehnquist, C.J., concurring). Plaintiff State respectfully submits that the foregoing types of electoral irregularities exceed the hanging-chad saga of the 2000 election in their degree of departure from both state and federal law. Moreover, these flaws cumulatively preclude knowing who legitimately won the 2020 election and threaten to cloud all future elections.
“Taken together, these flaws affect an outcome-determinative numbers of popular votes in a group of States that cast outcome-determinative numbers of electoral votes. 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.”
If the Supreme Court accepted the case of Bush v Gore, 531 U.S. 98, 113 (2000), where the only issue was the “hanging chad” involving a few hundred votes, there is no reason why it would not accept Trump v. Pennsylvania involving more serious issues than hanging chads and several million votes.
Texas stated that the state and its voters “are entitled to a presidential election in which the votes from each of the states are counted only if the ballots are cast and counted in a manner that complies with the pre-existing laws of each state. See Anderson v. Celebrezze, 460 U.S. 780, 795 (1983) (“for the President and the Vice President of the United States are the only elected officials who represent all the voters in the Nation.”). Voters who cast lawful ballots cannot have their votes diminished by states that administered their 2020 presidential elections in a manner where it is impossible to distinguish a lawful ballot from an unlawful ballot.
“The number of absentee and mail-in ballots that have been handled unconstitutionally in Defendant States greatly exceeds the difference between the vote totals of the two candidates for President of the United States in each Defendant State. “In a presidential election, “the impact of the votes cast in each State is affected by the votes cast for the various candidates in other States.” Anderson, 460 U.S. at 795. The constitutional failures of Defendant States injure Plaintiff States because “‘the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as
effectively as by wholly prohibiting the free exercise of the franchise.’” Bush v. Gore, 531 U.S. 98, 105 (2000) (quoting Reynolds v. Sims, 377 U. S. 533, 555 (1964)) (Bush II). In other words, Plaintiff State is acting to protect the interests of its respective citizens in the fair and constitutional conduct of elections used to appoint presidential electors.
Supreme Court Became Politicized When It Refused to Accept Texas V. Pennsylvania
One of the reasons that I was reluctant to go back to the Philippines after my contract to write law books had ended was that the Philippine Supreme Court had become politicized. It was no longer a joy to practice law there, even though I was a friend of President Ferdinand Marcos (whose Chrysler automobile Roque Ablan Jr. and I had used to learn how to drive) and he would have been on our side in a politicized judicial system.
The politicization of the Philippine Supreme Court has been described in a book “The Political Supreme Court” written by my fraternity brother and former University of the Philippines College of Law Dean Pacifico Agabin.
The high-water mark of politicization happened when President Marcos had the 1973 Constitution ratified by a show of hands of the people in barrio fiestas (aka “constituent assemblies) instead of through a plebiscite as provided by law. A majority of the Supreme Court held that the 1973 Constitution was not properly ratified, but since the existing Constitution required a two-thirds vote of the Court to declare a law unconstitutional, and since this requirement was not met, the Supreme Court determined that the 1973 Constitution was now in effect. See Javellana v. Executive Secretary, G.R. No. L-36142, 151-A Phil. Rep. 35 (S.C., Mar. 31, 1973).
Politicization of the Supreme Court could only happen in a third world country. But many believe that the U.S. Supreme Court became politicized when it got involved in the dispute between Bush v. Gore. The Supreme Court’s refusal to hear and determine Texas v. Pennsylvania is believed by a number of people to constitute also politicization because by not conducting an evidentiary hearing into allegations that the 2020 election was tainted with irregularities in certain battleground states it thereby allowed the election of Joe Biden.
The American people are crying for the truth. For “you shall know the truth and the truth shall set you free”. John 8:32. With the monumental mistake by the U.S. Supreme Court in denying the petition of Texas v. Pennsylvania on the questionable ground that it lacked “standing,” the American people will never know the truth – and will never be free. That decision – unless reconsidered by the Supreme Court or corrected in the still pending election cases – could usher in a regime that might lead to the decline and fall of America. At the very least, the American people might one day wake up to find that they are living in a different country because it has been remade by the socialists and revisionists.
A Supreme Court decision is only as good as its acceptance by the people. When about 75 million Americans who voted for President Trump do not believe that the election was conducted honestly and that the Supreme Court should have accepted Texas v. Pennsylvania to determine the truth that is a high degree of non-acceptance of the Supreme Court decision.
The Supreme Court has sometimes been referred to as a “bulwark” of democracy. A synonym for “bulwark” is “barrier”.
ATTY. EMMANUEL S. TIPON was a Fulbright and Smith-Mundt scholar to Yale Law School where he obtained a Master of Laws degree specializing in Constitutional Law. He has a Bachelor of Laws degree from the University of the Philippines. He is admitted to practice before the U.S. Supreme Court, New York, and the Philippines. He practices federal law, with emphasis on immigration law and appellate federal criminal defense. He was the Dean and a Professor of Law of the College of Law, Northwestern University, Philippines. He writes law books and legal articles for Thomson-Reuters and writes columns for newspapers. He wrote the best-seller “Winning by Knowing Your Election Laws.” Listen to The Tipon Report which he co-hosts with his son Noel, the senior partner of the Bilecki & Tipon Law Firm. It is considered the most witty, interesting, and useful radio show in Hawaii. KNDI 1270 AM band every Thursday at 8:00 a.m. Atty. Tipon was born in Laoag City, Philippines. Tel. (808) 800-7856. Cell Phone (808) 225-2645. E-Mail: firstname.lastname@example.org. Websites: https://www.tiponlaw.com , https://www.hawaiianimmigrationattorney.com
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