Earlier, I highlighted the erroneous assertion in some legal briefs that a state legislature has “endorsed” some rival slate of presidential electors. A new lawsuit from Arizona filed in Texas does the same, and more.

Here are some allegations from the complaint:

The Arizona Electors have cast Arizona’s electoral votes for President Donald J. Trump on December 14, 2020, at the Arizona State Capitol with the permission and endorsement of the Arizona Legislature, i.e., at the time, place, and manner required under Arizona state law and the Electoral Count Act.

As I explained earlier, “‘Permission’ to appear in the state capitol is no more an endorsement than allowing any group of tourists to step foot in the capitol and engage in some kind of activity.” It also is not clear that the legislature, as a legislature, endorsed such an activity.

The more deceptive claim is here:

On December 14, 2020, members of the Arizona Legislature passed a Joint Resolution in which they: (1) found that the 2020 General Election “was marred by irregularities so significant as to render it highly doubtful whether the certified result accurately represents the will of the voters;” (2) invoked the Arizona Legislature’s authority under the Electors Clause and 5 U.S.C. § 2 to declare the 2020 General Election a failed election and to directly appoint Arizona’s electors; (3) resolved that the Plaintiff Arizona Electors’ “11 electoral votes be accepted for … Donald J. Trump or to have all electoral votes nullified completely until a full forensic audit can be conducted;” and (4) further resolved “that the United States Congress is not to consider a slate of electors from the State of Arizona until the Legislature deems the election to be final and all irregularities resolved.[n. 11]

n.11: See Ex. A, “A Joint Resolution of the 54th Legislature, State of Arizona, To The 116th Congress, Office of the President of the Senate Presiding,” December 14, 2020 (“December 14, 2020 Joint Resolution”).

(Note that Exhibit A includes only 4 pages, not 5, which is the total number of original signatories. You can see that Twitter thread here. It appears the plaintiffs may have accidentally included only the 4 images in the first Twitter post without scrolling down to the second post.)

“Members” of the legislature are distinct from the legislature. They cannot “pass” a “Joint Resolution” under state law unless they go through the lawmaking process. It is not a “Joint Resolution” under any recognized authority of the state legislature, except that these lawmakers want it to be so.

A review of the signatories shows 17 members of the 60-member house, and 5 members of the 30-member senate, which means that it fails majority requirements in both chambers (of course, the presence of a quorum may mean fewer than all members present).

It’s also signed by 8 members-elect, who, of course, are not a part of the legislature right now and cannot engage in the lawmaking function.

And the “joint resolution” has no bill number and is not enrolled in any journal. No roll call was taken. No legislative session was established by any entity.

These members of the legislature are so strongly advancing the independent state legislature doctrine while simultaneously undermining legislative claims by asserting legislative power in contexts where the legislature is not acting.

UPDATE January 1, 2021: A similar falsehood was included regarding Michigan’s electors in a motion to intervene in Gohmert v. Pence. Here are the allegations:

Intervenors include portions of the slate of Republican Presidential Electors for the State of Michigan. Intervenors have cast their Presidential electoral votes for the State of Michigan for President Donald J. Trump on December 14, 2020, at the Michigan State Capitol with the permission and endorsement of the Michigan Legislature, i.e., at the time, place, and manner required under Michigan state law and the Electoral Count Act.
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On December 14, 2020, pursuant to the requirements of applicable state laws and the Electoral Count Act, Intervenors, with the knowledge and permission of the Republican-majority Michigan Legislature, convened at the Michigan State Capitol, and cast Michigan’s electoral votes for President Donald J. Trump and Vice President Michael R. Pence.