“Donofrio v Pennsylvania Et al” Still Pending At SCOTUS

The failed Texas theory of action was that the plenary authority of Legislatures in Defendant States had been usurped, causing violations of equal protection to Texas voters. The problem with such theory is that – by doing nothing to take back control of choosing electors – the Legislatures in the Defendant States have, using passive behavior, condoned invasions upon their exclusive power by inferior State officials. By that I mean, inferior in authority as to choosing presidential electors, as per Article II, § 1, of the Constitution, and also inferior as to federal statute 3 U.S.C. § 2.

By not taking back the presidential elector appointment power, after watching their enactments – designed specifically to protect election integrity – be discarded by Executive officials such as Raffensperger and Boockvar, those Legislatures have, by their failure to assert plenary authority after the violations, condoned such usurpation.

And unless they resume power soon, the usurpation will be forever endorsed by them. Passive approval is an exercise of plenary authority if the Legislatures themselves remain docile and allow such invasions to stand.

Plenary means plenary. The State Legislatures have plenary authority not to act. Those Legislatures are pretending they have no authority, but in pretending, they are, in fact, acting to protect their officials and the electors preferred by them.

My case, on the other hand, asserts that the Defendant States violated a Congressional election statute, 3 U.S.C. § 1, which was an exercise of plenary authority by the federal Congress as to the time when presidential electors shall be appointed. This is a power not even the State Legislatures can waive.

I didn’t want to put the caption of my case at SCOTUS into public awareness until it was docketed, because I didn’t want folks mass calling the Court, citing the caption, and clogging up the process. The Court is understaffed from Covid. But since the caption slipped out in Footnote 1 of AG Brnovich’s Amicus Motion on behalf of Arizona in the Texas case, the file is effectively unredacted. So let’s talk about it.

I was inspired by the Texas effort (filed three days after mine), because they raised awareness of 3 U.S.C. § 2, and the concept of vote debasement (both issues were invoked previously in my filing), but the Texas case most certainly had standing issues for asserting that the authority of other Legislatures was usurped.

Yes, those State Legislatures’ authority was usurped by their Executive Branch officials, but no Legislature has actually asserted their plenary authority to appoint electors. As per the Supreme Court precedent stated in McPherson v. Blacker – a State Legislature may “resume the power” to appoint electors “at any time”, as that power is “plenary”. Plenary means they alone may assert it.

Don’t be deceived, the State Legislatures can appoint electors right now, and if they do, it’s the other side who will be begging SCOTUS for help. And like Texas, they will lose. Blame the Legislatures for not appointing electors.

Those State Legislatures are avoiding their power by making believe state laws and constitutions bind them to accept a result. Only the Constitution of the United States binds them. It binds them to plenary authority which they clearly do not want to accept.

In fact, they can choose electors today. Nobody will stop them. Not even SCOTUS. They don’t need to invoke normal legislative procedures. All they need is will. The Florida Legislature asserted that will in 2000. And the GOP leadership praised them for it.

So why did the Pennsylvania Legislature leadership join the Texas suit, and why call on Congress to reject Pennsylvania electors, rather than doing it themselves?

They are obviously afraid. I get it. It’s human to be afraid. We can forgive fear. We can even forgive cowardice. But only if they admit the power they fear. Claiming that they don’t have the power is the unforgivable sin. In doing so, they are misleading others to think they are powerless. They aren’t.

If fear has taken over patriotic duty, they should admit that, resign, and find other careers. Ordinary citizens have stepped up by putting their lives in danger to swear affidavits and give live testimony concerning the disturbing behavior they witnessed during this election. If their representatives won’t stand by them, then those legislators need to go.

Why aren’t you submitting a slate of electors, Mr. Cutler? You have publicly asserted that your State officials violated your enactments. The Constitution armed you with plenary authority over presidential electors. That authority has been confirmed by SCOTUS multiple times. It’s paramount over your state constitution. Stop pretending you don’t know.


My case is completely different. 3 U.S.C. § 1 sets a single day for the election. If electors are not chosen on that day, the title of the tangential statute, 3 U.S.C. § 2, indicates that the election has failed, and it provides that the Legislature may then choose electors in any manner it likes, to be appointed on a subsequent day.

Were electors chosen on Nov. 3rd in the Defendant States? No. Study Foster v. Love. The unanimous SCOTUS decision from 1997 determined that “the election” must be consummated on “the day”. Foster v. Love held that an election is the “combined actions of voters and officials” used to determine a winner on Election Day. The Court was adamant that the election must be consummated on federal Election Day.

My filing asks the United States Supreme Court to acknowledge that a federal law – designed to prevent, not just fraud, but the potential for fraud – was usurped, when several States, that failed to discern a winner before Nov. 3rd ended, illegally extended federal Election Day indefinitely thereafter.

I have standing, because the Defendant States, by extending federal Election Day, debased my vote, in that those States, by their officials, illegally assumed an extended power to determine who would be the next Executive Branch occupant, because they gave themselves more time to award electors than Congress gave them under 3 U.S.C. § 1. That’s a violation of equal protection.

My case does not seek to assert the authority of the Legislatures. My case only seeks a Declaratory Judgment that the Defendant States violated federal statute 3 U.S.C. § 1, a law enacted specifically to stop fraud, and the appearance of fraud, and in doing so the Defendant States usurped the plenary authority of Congress to determine the exact time electors are appointed. The usurpation violated my right to vote as guaranteed by the equal protection clause of the Fourteenth Amendment.

Those elections are void. And by declaring them void, SCOTUS can return this election back to control of the Constitution of the United States. If they do, then 3 U.S.C. § 2 kicks everything back to the Legislatures. The Legislatures will still have plenary authority to keep the previous electors, or choose new ones, but the previous election results will have been declared void for violating federal law. Then the State Legislatures will be forced to openly choose electors as per the design of the Framers.

While I have provided strong argument that the Eleventh Amendment does not prohibit original jurisdiction for this case at SCOTUS, such jurisdiction is not exclusive, and therefore the Court may decline, even though no other Court has the actual power to restore the dignity and equality of my vote.

My pleading involves a pure issue of law, not fact. And the Court has already unanimously decided – in Foster v. Love – that Congress intended a uniform election day for all federal offices. Will the Court now overrule that case and decide that the Presidential Election can be consummated on a later day? I doubt it.

I filed the case properly under Supreme Court Rule 17, on December 4, 2020. As per Rule 17.4, the case “will be docketed”, since I complied therewith. Although as of today, Sunday Dec. 13, 2020, the case has not been docketed yet. Please don’t call the Court. The official website states that an order list will drop tomorrow at 9:30 A.M. Maybe we will know more then.

Regardless, it’s very important that the issue is before the Court for posterity. If I didn’t believe that, I never would have filed the case. And filing it was not a joy. I’d much rather be playing online poker, or watching sappy Hallmark Christmas flicks. I’ve been down this road before. It’s a blind alley.

The hard deadline for the electors meeting is not Monday Dec. 14th. It’s January 4, 2021. If electors do meet and vote on Monday, and thereafter, 3 U.S.C. § 2 is invoked, by some State Legislature members, or by a court, the formula emanating from 3 U.S.C. § 7 gives until January 4th for the electors to meet again.


11 Responses to ““Donofrio v Pennsylvania Et al” Still Pending At SCOTUS”

  1. sunsetatdawn Says:

    Thanks for doing this Esquire Donofrio

  2. nevillenewman Says:

    I have seen some write that Smiley v Holm requires that if a state provides for a veto of legislative action, then the state’s legislature is subject to that veto even in matters of federal election law.

    But given that the question in Smiley was specifically about [re]destricting, and that Hughes wrote only that the states are not *precluded* from providing that redistricting actions be subject to a Governor’s veto, not that they *must* do so, and that MacPherson pointedly states that the state legislatures’ authority to assign electors is plenary, then I still don’t see how Smiley can control here.

    Can you comment?

    • naturalborncitizen Says:

      Smiley has no authority here. Presidential Elector appointment is plenary as to Legislatures. Mcpherson is the precedent, not Smiley. Plenary means plenary. Mcpherson went out of it’s way to separate the State constitution and other branches of State government from the Legislature with regard to choosing electors. It went even further, the unanimous opinion also said it would take an Amendment to the US Constitution to limit the Legislature in any way.

    • naturalborncitizen Says:

      More on Smiley v. Holm:

      1. My case is based on 3 U.S.C. § 1 in that the deadline is missed, which kicks in 3 U.S.C § 2, and that statute clearly delineates between “the State”, which appoints, and “the Legislature” which determines how electors are appointed. So you have not just the Constitution making a clear distinction, but the Congress as well.

      2. In Smiley, the Court held that, as to providing for time, place and manner of Congressional seat elections, such function of the Legislature was in its law making capacity. But the Smiley Court recognized that the Legislature also acted in other capacities depending on the language of the federal Constitution in granting a Legislature various authorities, hence the following, categorized not as a law making capacity, but as an “Electoral” capacity:

      “The question here is not with respect to the `body’ as thus described but as to the function to be performed. The use in the Federal Constitution of the same term in different relations does not always imply the performance of the same function. The legislature may act as an electoral body, as in the choice of United States Senators under Article I, section 3, prior to the adoption of the Seventeenth Amendment.”

      The Legislature has plenary authority over the manner of choosing electors, and no Election is required. Therefore, in determining how to appoint electors, the Legislature has, and can at anytime choose electors without regard to a general election, which was the unanimous holding in McPherson. That plenary authority was confirmed in both Bush v Gore & Chiafolo v Washington, with the only limitations cited as to POTUS qualifications and equal protection, meaning that if a general election is used, all voters are protected as to the 14th Amendment.

      The Smiley Court inferred that – as to the requirement of an election in the federal Constitution – such elections require laws and penalties for violators, and therefore the Legislature acts in its law making capacity whenever it provides for such required elections. But elections are not required for choosing presidential Electors. When the Legislature chooses a general election, McPherson stated that the Legislature may “resume the power” at anytime. The general function of the Legislature, as to choosing electors, is not in a law making capacity, because there is no similar requirement in the federal Constitution for an election of POTUS electors. The Legislature may choose them on their own, and McPherson stated that this power cannot be taken from them nor could the Legislature abdicate such power. The Court went further, stating that it would take a Constitutional Amendment to change this.

      Also consider that in Smiley, the Court’s analysis hinged on the fact that Congress could “by law” regulate times, places, and manner of Congressional elections, should they so choose. The Court placed great emphasis on “by law”. Those words in the federal Constitution implied that whenever the State exercised their function to regulate Congressional elections, these words “by law” in the power of Congress to change such State regulations, meant that the Framers granted the States a law making function thereto.

      But Congress cannot regulate how a Legislature chooses electors. The Constitution does not allow Congress any authority other than as to the “time” when electors shall be appointed. And 3 U.S.C. § 1 regulates the time, as does 3 U.S.C § 2 if a State fails to appoint electors on Election Day. And 3 U.S.C. § 7 provides the formula for when the chosen electors shall meet and vote. This year, the hard deadline under that formula is Jan. 4. So regardless of what happens today, if a State Legislature chooses different electors between now and Dec 30, the electors can meet again. Since multiple State controversies exist, each State should wait until all controversies are settled. Otherwise, their electors will have to meet again, or such States who do not comply later could possibly have their electors revoked by Congress.

      Smiley v Holm is not the controlling precedent as to Presidential Electors. The unanimous Court in Washington v Chiafolo, decided by SCOTUS this year in an 8-0 decision does not even mention the Smiley case. Instead, the Court relied exclusively on McPherson v Blacker.

  3. Allen Donow Says:

    Totally agree. Constitution plainly expresses the election day rule. I add my thanks for your perseverance to see truth prevail.

  4. Why does Trump Campaign Senior Advisor Stephen Miller stick to January 20th [excerpt and video from https://theconservativetreehouse.com/2020/12/14/republican-legislatures-choose-alternate-electors-in-nv-wi-ga-pa-to-preserve-election-challenge-options/#more-206050%5D??

    The only date outlined in the constitution is January 20th. As Miller outlines: “We have more than enough time to right the wrong of this fraudulent election result.”

  5. Unfortunately the media never properly comment on court decisions. The left simplifies by claiming that the rejection of the Texas case means there was no election fraud. Completely false.

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