Former Kansas Secretary of State Kris Kobach told Breitbart News on Tuesday that some Republican-majority state legislatures may challenge votes of electors in Congress on January 6, offering his remarks in an interview on SiriusXM’s Breitbart News Daily with host Alex Marlow.
Congress is scheduled to certify the electoral college’s vote on January 6.
Kobach said, “Because the Supreme Court of the United States has not taken the big Texas case, now people are looking at January 6, when it is possible for Congress, this is when Congress accepts the votes of the electors in the electoral college. It is possible for members of Congress to raise objections, and that appears to be what some states are planning.”
“You saw some of the Republican legislatures … talking about submitting the names of a Republican set of electors, and there may very well be a big fight in Congress over whether the votes of the electors of those states where they changed the rules without legislative action should be accepted,” Kobach added. “So stay tuned.”
“This this isn’t over yet,” Kobach held. “If something does happen where we have a big dispute all of a sudden, and this this thing gains momentum in Congress, it’ll start to look like the Hayes-Tilden election of 1876, which is the last time that a disputed election went to Congress. So hold on, get some popcorn, because this the show may continue.”
Kobach said the Supreme Court abdicated its duty in rejecting a motion by Texas to file a lawsuit against Georgia, Michigan, Pennsylvania, and Wisconsin challenging the four states’ various election law changes in 2020.
Kobach remarked, “The Texas lawsuit was, on the merits, I don’t want to say it was a a slam dunk, but it was a free throw. … If the Supreme Court had gone to the issues presented, Texas almost certainly would have won.”
The facts in Texas’s proposed lawsuit were not disputed, Kobach said, noting that the Constitution requires changes to presidential election rules in states to be made by state legislatures.
“It was a clean case,” Kobach stated. “It was a legal case, simply that the four defendant states had made executive or judicial changes to the election rules going into the presidential election, and the Article Two electors clause of the Constitution prohibits that. Only the legislature can change the rules governing a presidential election, and then it was also an Equal Protection [Clause] challenge saying you can’t have county-by-county variation within those states.”
Kobach added, “The four defendant states didn’t really have much of an argument on the merits. They pretty much had to fess up that they did change the laws through executive and judicial actions, and so their only hope was to get the Supreme Court not to take the case, and that’s of course what happened.”
“Seven of the nine justices said, ‘No, we’re not going to get to the merits. We’re going to say that the state of Texas doesn’t have standing,’ and it was a huge disappointment,” Kobach explained. “Justices Thomas and Alito … dissented.”
The seven-justice majority determined that Texas lacks standing in its motion to file a lawsuit against Georgia, Michigan, Pennsylvania, and Wisconsin.
Kobach said, “There’s a crystal clear statement in Article Three of our Constitution that says the Supreme Court shall take cases when two states are a party, and the dissenting justices [Alito and Thomas] said look, we’ve got to take this case whether we want to or not.”
“Unfortunately, the Supreme Court’s seven justices, I believe, shirked their constitutional duty,” Kobach assessed. “They should have addressed it. We all know why they didn’t want to. They didn’t want to be in the middle of it. They didn’t want to issue a decision that potentially would have flipped the election to Trump, because those four states’ electors were not constitutionally selected.”
Kobach concluded, “You’ve got to stick to the words in the Constitution. The violation of the Constitution by these four states is quite clear, and the Supreme Court dodges it.”
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