Case 1:17-cv-00793-CKK-CP-RDM Document 135-1 Filed 09/20/18 Page 1 of 44

Scott Stafne (Pro Hac Vice) Sara S. Hemphill STAFNE LAW ADVOCACY & CONSULTING 239 N Olympic Avenue Arlington, WA 98223 (360) 403-8700 [email protected] - and - Alexander Penley GLOBAL PENLEY LAW 4111 Crittenden Street Hyattsville, MD 20781 (917) 582-8172 [email protected]

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLULMPIA

Frederick John LaVergne, et als., Case No. 1:17-cfv-00793 CKK-CP-RDM

Plaintiffs, Three Judge Court Hon. Cornelia T.L. Pillard, C.J. Vs. (Presiding) Hon. Colleen Kollar-Kotelly, U.S.D.J. U.S. House of Representatives, a body Hon. Randolph Moss, U.S.D.J. politic created and constituted by Article I of the United States Civil Action Constitution, as amended; et als.,

Defendants,

And

Michael Pence, Vice President of the United States and President of the United States Senate, et als.,

Interested Parties.

Plaintiff’s Frederick John LaVergne, Leonard P. Marshall, and Allen J. Cannon’s Memorandum of Points and Authorities in Support of Application for Preliminary Injunctive Relief and immediately thereafter, Summary Judgment and Permanent Declaratory and Injunctive Relief

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Introduction:

On January 3, 2017 the One Hundred and Fifteenth Congress convened in

Washington D.C. and the 435 newly elected Members of the United States House of

Representatives from among the 50 States each appeared and presented their credentials, were sworn, and took their seats. That same day Representative Paul

Ryan of Wisconsin was purportedly elected as the Speaker of the United States House of Representatives in accordance with the United States Constitution’s Article I.

On March 28, 2017 the 435 Members of the United States House of

Representatives, presided over by Defendant Representative Paul Ryan of Wisconsin, voted by majority of the 435 Members to approve legislation that had previously been approved by the full Article I United States Senate, which was then identified as “S.J.

Res. 34”. On April 3, 2017 that same legislation, after presentation, was officially signed into law by President Donald J. Trump and is now identified as Public Law

No. 115-22 (04/03/2017). On April 28, 2017 the collective Plaintiffs, including

Eugene Martin LaVergne1 and Scott Neuman2 filed their initial four Count

Complaint and other required documents with the Clerk of the Court for the United

States District Court for the District of Columbia challenging the validity of Public

1 Eugene Martin LaVergne was dismissed as a plaintiff from this lawsuit (Dkt. 127) on res judicata grounds related to his standing. Eugene has filed a motion for reconsideration of this order based on this court’s lack of jurisdiction to consider his claims after its dismissal has been appealed to the U.S. Supreme Court. See Dkt. 133. 2 Scott Neuman has filed a motion to amend his complaint to allege causes of action consistent with those asserted by interveners. See Dkt. 101, 129.

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Law No. 115-22 (04/03/2017). In the initial Complaint the Plaintiffs contend that

Article the First, the first ever proposed amendment to the United States Constitution proposed by Resolution of Congress in 1789 to the then eleven State Legislatures, was in fact fully ratified and automatically consummated into positive Constitutional

Law by the Federal Constitution’s Article V’s standards at the latest on or about June

24, 1792 (if not earlier), and that this fact was lost or otherwise intentionally hidden in history.

In support of this claim Plaintiffs cite to and proffered their intention to at time of trial or other proceedings rely heavily upon the extensive research and documents that have been compiled in former Plaintiff Eugene Martin LaVergne’s commercially published book titled How “Less” is “More”: The Story of the Real First Amendment to the United States Constitution published by First Amendment Free Press, Inc.,

New York, New York (2016).

Directly, the moving Plaintiffs (Frederick John LaVergne, Leonard P. Marshall and Allen J. Cannon), contend that Article the First is binding Federal Constitutional law, that Article the First means and operates exactly as they contend in their

Complaint, and that when the automatic mandatory non-discretionary standards of

Article the First are applied to the 2010 Decennial Census of each State, that the

Article I apportionment of the United States House of Representatives is actually required to have a minimum of 6,230 Representatives apportioned among the 50

States.

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At present the United States House of Representatives at the One Hundred and Fifteenth Congress has only 435 Representatives apportioned among the now 50

States in the Union. The 435 Representatives were apportioned among the 50 States in the Union after the 2010 Census in accordance with the so called “Automatic

Apportionment Act of 1929”, as amended, using the base number of 435, the Census

Population of each State, and the math formula known as the “Method of Equal

Proportions”. See 2 U.S.C. §2. If Plaintiffs are indeed historically, factually and legally correct, then this means that there is a minimum of 3,116 Representatives that must be elected in the various States, appear at the seat of Federal Government, present credentials, be sworn, and be seated in the United States House of

Representatives before there is the required Article I, Section 5’s mandatory

“Quorum” (50% + 1 of the Membership of the Body) present to conduct any legislative business.

More specifically in this case, as noted, the collective Plaintiffs directly challenged the constitutionality of Public Law No. 115-22 (04/03/2017), signed into law by President Donald J. Trump on April 3, 2017, because - they claim - that the affirmative legislative vote in the United States House of Representatives on March

28, 2017 (when the legislation was identified as “S.J. Res. 34”) is invalid and a nullity as the constitutionally required Article I, Section 5 Quorum of at least 3,116

Representatives was not present then and there.

The Plaintiffs argument is that as that specific March 28, 2017 vote in the

House of Representatives failed to satisfy and comply with the Constitution’s Article

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I, Section 5’s mandatory “Quorum’s Clause”, that the March 28, 2017 vote by the

United States House of Representatives was invalid and a nullity and may not be counted as legal for Article I law making purposes. This is because Public Law No.

115-22 (04/03/2017) failed to satisfy the vesting and bicameralism requirements of the United States Constitution’s Article I and Article II and therefore is not valid

Federal Law. See I.N.S. v. Chada, 462 U.S. 919 (1983) and Clinton v. New York, 524

U.S. 417 (1996).

This also means that Defendant Ryan is not legally the Speaker nor legally in the line of Presidential succession. Moving Plaintiffs assert these injuries to the people are not general grievances which can be ignored by a government intended to respect the organic law of this nation.

On May 9, 2017, and in contemplation of then expected impending legislative approval in the full United States Senate, the collective Plaintiffs filed a First

Amended Complaint where they added one additional named Plaintiff and added a new Fifth Count. That FIFTH COUNT of the First Amended Complaint is hereby withdrawn because it is moot. Thereafter, Plaintiff Neuman moved to file a Second

Amended Complaint, which this court has now granted and established a briefing schedule for. Dkt 129.

The collective Plaintiff’s moved for the convening of a 3 Judge Court in accordance with the authority and procedures established in 28 U.S.C. §2284(a) and

L.Civ.R. 9.1. Plaintiffs claimed that with factual, equitable and legal claims as asserted in the original Complaint and as asserted in the First Amended Complaint,

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that they were in fact, albeit indirectly, “… challenging the constitutionality of the apportionment of congressional districts …” within the meaning of 28 U.S.C. §2284(a).

Thereafter, the Honorable Colleen Kollar-Kotelly, U.S.D.J. found such motion to have merit and referred the case to the Honorable Merrick B. Garland, Chief Judge of the

District of Columbia Court of Appeals. On May 18, 2017, Judge Garland formally appointed and convened a three judge court to hear the claims in this case, appointing the Honorable Cornelia T. L. Pillard, Circuit Judge from the District of Columbia

Court of Appeals and the Honorable Randolph D. Moss, U.S.D.J. of the District of

Columbia District Court to serve along with Judge Kollar-Kotelly. Dkt. 7. Circuit

Judge Pillard was appointed the Presiding Judge of the panel. Id.

On October 20, 2017 former lead Plaintiff Eugene Martin LaVergne filed a motion somewhat similar to the instant motion moving for summary judgment and permanent injunctive relief. Also on October 20, 2017 the Three Judge Court held a telephonic status and case management conference. Ultimately, the Three Judge Court took no further action for the next 8 months, and as such, after refusing to even hear LaVergne' s application for Summary

Judgment and Permanent Injunctive Relief, the "denial" was appealed directly to the United

States Supreme Court on June 11, 2018. The Jurisdictional Statement before that court was filed on August 10, 2018, and the case was formally docketed by the Clerk of the United States

Supreme Court on September 6, 2018 as LaVergne v. US. House of Representatives, et al., No.

18-290 which remains pending.

Inexplicably, and apparently taking action in the absence of Article III Jurisdiction (due to the docketed Supreme Court appeal), on September 6, 2018, after 11 months of taking no action, the Three Judge Court suddenly entered a Memorandum Opinion and Order dismissing

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lead Plaintiff Eugene Martin LaVergne without explaining their authority and jurisdiction to do so in light of the pending Supreme Court Appeal. See Dkts. 124 and 125.

Plaintiff Eugene Martin LaVergne, now technically "dismissed", has moved under Rule

60 for an Order voiding the September 6, 2018 Order of the Three Judge Court or alternatively to compel the Three Judge Court to state and specifically articulate their jurisdiction to take such action. Dkt. 134. Both remain pending.

Scott Stafne who was previously admitted pro hac vice in this case, on behalf of interveners (who have been dismissed without prejudice) has now substituted in as attorney of record for remaining Plaintiffs Frederick John LaVergne, Leonard P. Marshall, Scott Neuman and

Allen J. Cannon. These Plaintiffs now move for Preliminary Injunctive Relief (required by Local

Rules to be heard in 21 days) and in a summary manner for Summary Judgment granting

Declaratory and Permanent Injunctive Relief.

Standard of Review on Applications for Preliminary and Permanent Injunctive Relief:

The standards and factors for the court to consider on applications for

Preliminary and Permanent injunctive relief are well known and are set forth in

Mazurek v. Armstrong, 520 U.S. 968, 972(1997) (per curium); F.r.Civ.P. 65 and

Local Civil Rule 65.1. As is demonstrated here, these standards have been met.

Standard of Review on Summary Judgment:

F.R.Civ.P. 56 provides in relevant part as follows:

(a) Motion for Summary Judgment or Partial Summary Judgment: A party may move for summary judgment, identifying each claim or defense - or the part of each claim or defense - on which summary judgment is sought. The court shall grant summary judgment of the movant shows that there is no genuine dispute as to any material fact and

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the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion. (b) Time to File a Motion. Unless a different time is set by local rule or the court orders otherwise, a part may file a motion for summary judgment at any time until 30 days after the close of all discovery. (Emphasis added). *** [F.R.Civ.P. 56(a) & (b)].

The Rules of the United States District Court for the District of Columbia

(Effective as of September 2015, Updated: September 2016), the applicable “… local rules …”, do not set any separate time limitation or restriction on the time frame for filing of a Motion for Summary Judgment or a Motion for Partial Summary

Judgment. As such, this motion can be brought now as a cross motion to the contemplated motions to dismiss.

L.Civ.R. 7(h) provides in relevant part:

(h) MOTIONS FOR SUMMARY JUDGMENT. (1) Each motion for summary judgment shall be accompanied by a statement of material facts as to which the moving party contends there is no genuine issue, which shall include references to the parts of the record relied on to support the statement. An opposition to such motion shall be accompanied by a separate concise statement of genuine issues setting forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated, which shall include reference to the parts of the record relied on to support the statement. Each such motion and opposition must also contain or be accompanied by a memorandum of points and authorities and proposed order as required by L.Civ.R. 7(a), (b) and (c). In determining a motion for summary judgment, the Court may assume that facts identified by the moving party in its statement of material facts are admitted, unless such a fact is

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controverted in the statement of genuine issues filed in opposition to the motion. ***

[L.Civ.R. 7(h)].

Summary judgment short circuits the fact finding function of the federal courts. It may only be …

… granted when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. In determining whether a genuine fact exists, the court must view all facts in the light most favorable to the non- moving party.

Judicial Watch, Inc. v. Consumer Financial Protection Bureau, 985 F.Supp.2d 1, 6 (D.D.C. 2013.

In this case, the objective historical facts presented and brought forward by

Plaintiffs cannot reasonably be disputed. When these facts are applied to the applicable law it is evident that Plaintiffs are entitled to Judgment in their favor as a matter of law.

Statement of Facts:

For purposes of this Memorandum of Points and Authorities Plaintiff shall rely upon the facts as enumerated in the “Statement of Uncontested Material Facts” submitted herewith, with the following facts repeated herein:

The date of the initial proposal by Congress, and the accurate historical record of the vote of assent of each State Legislatures that affirmatively voted to ratify

Article the First over time, the number of States in the Union as changed over time at the time of each ratification vote, and whether the ratification vote was reported to any organ of the Federal Government, is as follows:

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The Initial Proposal of Article the First:

Article the First was proposed to the State Legislatures of the then Eleven

States in the Union as an amendment to the United States Constitution on September

28, 1789 in accordance with the United States Constitution’s Article V. More specifically, Article the First was proposed as the first of a twelve separately enumerated and numbered and unrelated amendments. Rather than send the State

Legislatures twelve separate Resolutions, all twelve proposed amendments were presented together in the same single resolution along with following prefatory language at the front of the Resolution:

Congress of the United States:

Begun and Held at the City of New-York, on Wednesday, the fourth of March, one thousand seven hundred and eighty-nine.

The Conventions of a number of the States having at the time of their adopting the Constitution expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the government will best insure the beneficent ends of its institution -

RESOLVED by the Senate and House of Representatives of the United States of America in Congress assembled, two thirds of both Houses concurring, That the following articles be proposed to the legislatures of the several states, as amendments to the Constitution of the United States, all or any of which articles, when ratified by three fourths of the said legislatures, to be valid to all intents and purposes, as part of the said Constitution, viz.

ARTICLES in Addition to, and Amendment of, the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several states, pursuant to the fifth article of the original Constitution.

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***

The text of the above cited Resolution (“… all or any of which articles, when ratified by three fourths of the said legislatures, to be valid to all intents and purposes, as part of the said Constitution …”), is consistent with the text of Article V itself, and specifically confirms that any one proposed amendment, any combination of the proposed amendments, or all twelve of the amendments, may be approved. This specifically clarified – to those that may not have understood the Federal

Constitution’s Article V hybrid Federal Constitutional Law making process – that though there were twelve proposed amendments in the Resolution; it was not an “all or nothing” process.

On October 3, 1789, in pursuance of a separate Resolution of Congress, a copy of the Resolution of Congress proposing Article the First (along with another Eleven proposed Amendments) was then transmitted under cover letter signed by President

George Washington to the Governor of each of the Eleven States in the Union and to the Governors of North Carolina and Rhode Island. Thereafter, the Ratification action in the State Legislatures commenced and during the process the States of

North Carolina, Rhode Island, Vermont, and Kentucky joined the Union.

The United States Constitution’s Article V’s Hybrid Federal Constitutional Law Making Process:

The United States Constitution’s Article V provides:

ARTICLE V

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution, or, on application of the legislatures of two thirds of the several states, shall call a convention for

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proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress: Provided, that no amendment which may be made prior to the year one thousand eight hundred and eight, shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

The text of the United States Constitution’s Article V itself confirms that the ratification vote in a State Legislature is not part of a regular State Law making process requiring the participation or approval of any State’s Executive Branch or adherence to any other State Law making process or procedure but rather is a specific and unique grant of legal authority conferred directly by the Federal Constitution itself to the States to participate in the Federal Constitutional Law making process

(through the approval and affirmative ratification vote of the State “Legislature” or alternatively by ratification vote at State Convention) with the other States in the

Union. As the United States Supreme Court has observed, “… [t]he function of a state legislature in ratifying a proposed amendment to the Federal Constitution, like the function of Congress in proposing the amendment, is a federal function derived from the Federal Constitution …” Hawke v. Smith (No. 2), 252 U.S. 368, 376 (1921).

(emphasis supplied).

As the ratification vote of a State Legislature is part of a constitutionally defined Federal process for making Federal Constitutional law, State lawmaking process and procedure as otherwise outlined in a State’s own Constitution or other

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rules of procedure regarding lawmaking do not govern. Rather the required actions of the State Legislature for a valid ratification are only as defined in the United States

Constitution’s Article V itself. The United States Constitution’s Article V requires only that a State Legislature meet and cast an affirmative vote of assent for the

Legislature to have taken the requisite Article V positive action and to have affirmatively “ratified” an amendment.

There is no requirement that a bicameral state legislature take action at the same session or in the same year for that matter. As the literal text of Article V states, a proposed amendment: “… shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several

States …”. More directly stated, a proposed amendment is validly ratified by a State’s

Legislature at the moment that an affirmative vote of assent of the entirety of a

“State’s Legislature” for Article V purposes is cast.

Moreover, the fact the special Federal action taken by a State’s Legislature may not be formally memorialized in a Resolution or Legislative Journal until some later date, if even ever, is also of no moment. The text of Article V does not state that an amendment is ratified by a State when their Legislature casts the affirmative vote of assent … and then does some further action. Rather, the Federal Article V action is complete upon the affirmative vote of assent.

The United States Constitution’s Article V envisions an automatic and self enacting process in that a proposed amendment is automatically consummated as positive Federal Constitutional Law when the threshold “three fourth” State

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Legislatures have affirmatively voted to adopt and ratify an amendment. No further action is constitutionally required other than the actual affirmative vote or assent of

“… the Legislatures of three fourths of the several States …”.

Whether or not an amendment, positively ratified by the Constitution’s Article

V’s standards has been “officially reported” to the other States or to any organ of the

Federal Government does not affect the legal sustaining validity of a State

Legislature’s ratification vote once cast.

Having once been ratified by a State’s Legislature in accordance with the standards of Article V, an amendment remains so ratified as of the date of the vote whether or not the ratification action is published, known, or the record of the State

Legislature’s ratification is intentionally ignored or temporarily forgotten about and lost in time.

This clear and simple interpretation of how the Constitution’s Article V works is born out by the literal text of Article V itself, and this interpretation of how Article

V works is concurred in by historical precedent and by formal legal opinions of the

Article II Executive Branch, See Memorandum Opinion for the Counsel to the

President, “Congressional Pay Amendment”, by Timothy E. Flanigan, Acting

Assistant Attorney General, Office of Legal Counsel, reported at 16 O.L.C. 85 (May

13, 1992) and “Congressional Pay Amendment”, Memorandum Opinion for the

Counsel to the President, by Timothy E. Flanigan, Acting Assistant Attorney

General, Office of Legal Counsel, reported at 16 O.L.C. 85 (May 13, 1992), and formal

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judicial opinion of the Article III United States Supreme Court. See Dillon v. Gloss,

256 U.S. 368 (1921).

Additionally, historical precedent and formal legal opinions of the Article II

Executive Branch confirm that once an affirmative vote has been cast by a State’s

Legislature, it may not be rescinded by a later sitting State Legislature. See

Memorandum Opinion for the Counsel to the President – “Power of a State

Legislature to Rescind its Ratification of a Constitutional Amendment”, by John M.

Harmm, Acting Attorney General, Office of Legal Counsel, 77-7 O.L.C. (February 15,

1977). This formal Article II legal opinion is supported by historical precedent

(Fourteenth and Fifteenth Amendments) and, most directly, by the so called “Civil

War” which commenced when the State of South Carolina sought to rescind its prior ratification of the United States Constitution to leave the Union.

These are very basic and easy to understand concepts, which the people of this nation can readily comprehend, even if judges cannot.

The Actual Ratification Votes in the State Legislatures on Article the First:

*NOTE: The process starts with Eleven States in the Union: Massachusetts, New Hampshire, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, South Carolina, and Georgia.

(1.) Connecticut State Legislature: Ratified Article the First by the United States Constitution’s Article V’s standards October 1789 (*or alternatively May 1790 if the “Upper House Council” is part of the “Legislature” for Article V purposes). (UNREPORTED)

(2.) New Jersey State Legislature: Ratified Article the First by the United States Constitution’s Article V’s standards on November 19, 1789 (*or November 20, 1789). (REPORTED)

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*NOTE: As of November 28, 1789 there were now Twelve States in the Union as North Carolina ratified the United States Constitution at statewide convention of November 28, 1789 and joined the Union of States.

(3.) Virginia State Legislature: Ratified Article the First by the United States Constitution’s Article V’s standards on December 8, 1789. (UNREPORTED)

*NOTE: After the First Decennial Census results were reported in October 1791, and in anticipation of the first Decennial Apportionment of the United States House of Representatives, the Virginia State Legislature ratified Article the First by the United States Constitution’s Article V’s standards a second time on November 3, 1789. (IMMEDIATELY AND SINGULARLY REPORTED)

*NOTE: After the Virginia State Legislature later ratified Article the Third through Article the Twelfth (some for the second time) on December 15, 1789, the November 3, 1791 singular ratification of Article the First was reported for a second time, this time in a collective instrument of ratification of all twelve proposed amendments. (SECOND NOVEMBER 3, 1791 RATIFICATION REPORTED A SECOND TIME WITH OTHER ELEVEN AMENDMENTS)

(4.) Maryland State Legislature: Ratified Article the First by the United States Constitution’s Article V’s standards on December 19, 1789. (REPORTED)

(5.) North Carolina State Legislature: Ratified Article the First by the United States Constitution’s Article V’s standards on December 22, 1789. (REPORTED)

(6.) South Carolina State Legislature: Ratified Article the First by the United States Constitution’s Article V’s standards on January 19, 1790. (REPORTED)

(7.) New Hampshire State Legislature: Ratified Article the First by the United States Constitution’s Article V’s standards on January 25, 1790. (REPORTED)

(8.) New York State Legislature: Ratified Article the First by the United States Constitution’s Article V’s standards on February 24, 1790. (REPORTED)

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*NOTE: May 29, 1790 now Thirteen States in the Union: Rhode Island ratified the United States Constitution at statewide convention of May 29, 1790 and joined the Union of States.

(9.) Rhode Island State Legislature: Ratified Article the First by the United States Constitution’s Article V’s standards on June 7, 1790. (REPORTED)

*NOTE: March 3, 1791 now Fourteen States in the Union: Vermont was admitted as the Fourteenth State in the Union by Act of Congress taking effect March 4, 1791.

(10.) Pennsylvania State Legislature: Ratified Article the First by the United States Constitution’s Article V’s standards on September 24, 1791. (REPORTED)

(11.) Vermont State Legislature: Ratified Article the First by the United States Constitution’s Article V’s standards on November 3, 1791. (REPORTED)

*NOTE: June 1, 1792 now Fifteen States in the Union: Kentucky was admitted as the Fifteenth State in the Union by Act of Congress taking effect June 1, 1792.

(12.) Kentucky State Legislature: Ratified Article the First by the United States Constitution’s Article V’s standards on June 21, 1792. (UNREPORTED)

[See Statement of Material Facts; see also How “Less” is “More”: The Story of the Real First Amendment to the United States Constitution, by Eugene Martin LaVergne, published by First Amendment Free Press, New York, New York (2016) at pages 521- 522].

What is “Three Fourths” for the Constitution’s Article V Purposes:

From the above it is clear that Article the First has been fully ratified and automatically consummated as positive Federal Constitutional Law by any possible or plausible interpretation the Article V “three fourths” standard as early as June 7,

1790 or as late as June 21, 1792.

We know that early in 1797 there were two conflicting Congressional

Committee Reports – one in the Senate and one in the House – which expressed

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opinions on which if any of the originally proposed twelve amendments had become law. The Senate Committee Report expressed a belief that Articles the Third through the Twelfth “… have became a part of the Constitution”, that Article the First had “… has not as yet become a part of the Constitution.”, and that Article the

Second “…has not become a part of the Constitution.”

This Senate Committee Report was adopted (with an accompanying Resolution regarding inquiry as to the status of the ratification of the “Suability of the States

Amendment”) by the full Senate and sent to the House for concurrence. There was a conflicting House Committee Report which actually gave the formal opinion that none of the twelve proposed amendments had become part of the Constitution as yet! This

House Report was rejected (as was an alternatively suggested Resolution), and the

Senate Report and Resolution was ultimately adopted by the House.

The Senate Report, as printed in the Journal of the Senate, read as follows:

TUESDAY, January 31st, 1797

* * *

Mr. Tazewell reported from the committee on the subject of amendments to the Constitution of the U.S. which was read as follows:

That of the twelve amendments proposed by Congress at their session, begun and held in New-York on the 4th of March 1789, the following states ratified the 3d, 4th, 5th, 6th, 7th, 8th, 9th, 10th, 11th,and 12th, prior to the first day of March 1791, viz. New-Jersey, Maryland, North- Carolina, South-Carolina, New-Hampshire, Delaware, New-York, Pennsylvania, and Rhode Island; which states making three-fourths of the then thirteen United States,

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the said amendments have became a part of the Constitution.3

3 The Congress of 1797 interpreted the Constitution’s Article V’s three fourths threshold for automatic consummation of law for Article the Third through Article the Twelfth as 9 of 13 (whereas a pure numerical ¾ would be 9.75). After March 1, 1791 Vermont was admitted to the Union, so now there were 14 States. As Congress was only aware of 7 State Legislatures having ratified Article the First prior to March 1, 1791, the amendment was viewed as having been “… not as yet …” fully ratified. However, today we now know that the Virginia State Legislature (fall 1789) and the Connecticut State Legislature (Fall 1789 or Spring 1790) both ratified Article the First prior to March 1, 1791 but did not report that action to the Federal Government. This means that under Congress’s 1797 official and contemporaneous interpretation of the “three fourths” standard in the Constitution’s Article V that Article the First too was ratified prior to 1791, specifically on June 7, 1790 when Rhode Island became the 9th State Legislature (of the original 13 States) to ratify. In this regard, it is noted that “[e]arly congressional practice … provides ‘contemporaneous and weighty evidence of the Constitution’s meaning.’” Alden v. Maine, 527 U.S. 706, 743-744 (1999) (citing in part Printz v. United States, 521 U.S. 898, 905 (1997)). After March 1791 when there were 14 States in the Union (with a pure numerical ¾ being 10.5), and where there is irrefutable evidence that then Secretary of State Thomas Jefferson stated that 10 (not 11) of 14 States were required for full ratification and consummation as law, the Pennsylvania State Legislature became the 10th to ratify Article the First. The recent historically unsupportable notion that the first 10 amendments became law and were fully ratified on December 15, 1791 is revisionist history that well started less than 100 years ago. The issue was first suggested by the State Department’s publication of the Ratification of the Twenty-First Amendment to the Constitution of the United States, Published by the Department of State, WASHINGTON: Government Printing Office (1934) asserting that Article the First and Article the Second had not become law because:

“In each case ratifications by the legislatures of at least eleven States were necessary to comply with the Constitutionals provision “of three fourths of the several states”, as the total number of States in the Union had become thirteen prior to the ratification of any of the proposed amendments by more than eight States, and had

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That the first amendment was ratified prior to the first day of March 1791, by the following states, viz. New- Jersey, Maryland, North-Carolina, South-Carolina, New- Hampshire, New-York, and Rhode Island, and subsequent to that period, by Pennsylvania, Virginia and Vermont; which number not making three fourths of the states at the period of ratification, the said amendment has not as yet become a part of the Constitution.

That the second amendment was ratified prior to the 1st day of March 1791, by the following states: - Maryland, North Carolina, South Carolina, Delaware, and subsequent to that period, by Virginia and Vermont; which

become fourteen prior to the ratification of any of the proposed amendments by more than nine States.” [Id. at 21]. This interpretation of the Constitution’s Article V’s three fourths standard is clearly at odds with the Congressional contemporaneous interpretation of the “three fourths” standard in Article V in 1797 and at odds with the interpretation in the Statutes at Large in 1845 – which are legally presumptively correct! Point in fact; it was during the Sesquicentennial Celebration of the Constitution that the celebrations were expanded to include the so called “Bill of Rights”. In 1939, in preparation for the celebrations, it was discovered that there was no evidence that the Legislatures of Massachusetts, Connecticut and Georgia ever ratified the so called Bill of Rights. As such, in March and April of 1939, those three State’s Legislatures ceremoniously “post ratified” Article the Third through Article the Tenth. On November 27, 1941, with the nation in crisis with Japan and Europe, at the request of Congress (who was acting at the request of the Sesquicentennial Commission) President Roosevelt issued a Proclamation that in part, declared that “… the first ten amendments, the great American charter of personal liberty and human dignity, became a part of the Constitution of the United States on the fifteenth day of December, 1791.” Within a week – and before the actual December 15 date, on December 8, 1941 the Japanese bombed Pearl Harbor, and with in hours the nation was at war. This proclamation was more a function of rallying national unity than a legitimate Promulgation of literally correct history or law overriding the 1797 Congress or the 1845 Statutes at Large. Amazingly, today, without support in fact or law, this date is nevertheless the commonly (mis)understood date of ratification of the “First Ten Amendments” by those unaware of the actual historical facts and events, who give such date without any supporting legal cite.

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number not making three fourths of the states, the said amendment has not become a part of the Constitution.

That the amendment respecting the suability of states, which has been proposed by Congress since March 1791, has been ratified by the following states: - New-York, Massachusetts, Vermont, New-Hampshire, Georgia, Delaware, Rhode-Island and North Carolina; as appears by authentic documents returned to Congress. The committee have strong reasons to believe that other states have ratified this latter amendment, and that the evidences of the fact have not been as yet returned to the proper departments of the government; wherefore, as the number returned do not amount to three fourths of the states, the said amendment cannot under present circumstances, be reported as forming a part of the Constitution.

Whereupon,

Resolved, by the Senate and House of Representatives, of the United States, That the President be requested to adopt some speedy and effectual means of obtaining information from the states of Connecticut, New Jersey, Pennsylvania, Maryland, Virginia, Kentucky, Tennessee and South Carolina, whether they have ratified the amendment proposed by Congress to the Constitution concerning the suability of states, if they have, to obtain the proper evidences thereof.

Ordered, that the Secretary desire the concurrence of the House of Representatives in this Resolution.

[See Journal of the Senate of the United States of America, Being the Second Session of the Fourth Congress, Begun and Held at the City of Philadelphia, December 5, 1796, and in the Twenty-First Year of the Sovereignty of the United, States, PHILADELPHIA: Printed by John Fenno, Printer to the Senate of the United States, M,DCC,XCVI, at pages 61 through 63].

Consistent with the official and formal view expressed by Congress in 1797, 50 years later, the United States Statutes at Large, stated again the standard of 9 of 13 before 1791 was required, when it is definitively stated with regard to Article the

Third through Article the Twelfth that:

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… The first ten of these amendments were proposed by Congress (with others which were not ratified by three fourths of the legislatures of the several states,) by resolution of 1789, post, pp. 97, 97, and were ratified before 1791. (Emphasis added).

[See The Public Statutes at Large of the United States, Edited by Richard Peters, Esq., BOSTON: Charles C. Little and James Brown (1845), Volume I, page 21, footnote (a).].

Today the law is also clear in that:

… The United States Statutes at Large shall be legal evidence of … proposed or ratified amendments to the Constitution of the United States therein contained, in all the courts of the United States …

[1 U.S.C. §112].

Otherwise stated (and the modern commonly accepted “11 of 14” standard and

December 15, 1791 date notwithstanding), Article the First automatically became a part of the United States Constitution on June 7, 1790 when the Rhode Island

Legislature became the 9th of 13 State Legislatures to ratify, thereby satisfying the contemporary understanding of the Constitution’s Article V’s “three fourths” standard that 9 of 13 were required. Nevertheless, any possible interpretation of the “three fourths” standard is met, as on September 24, 1791 (with the Pennsylvania State

Legislature’s ratification) there were 10 of 14, on November 3, 1791 (with the

Vermont State Legislature’s ratification) there were 11 of 14, and on June 21, 1792

(with the Kentucky State Legislature’s ratification) there were 12 of 15.

Lastly, it is noted that even if one were to apply the “11 of 14” standard, then

Article the First was actually the first ever fully ratified amendment and was actually

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a permanent part of the Federal Constitution on November 3, 1791, a full 1 ½ months before Articles the Third through the Twelfth were ratified on December 15, 1791!

Under any interpretation of the facts in consort with the law, it is submitted by Plaintiffs that it is clear beyond any reasonable question that Article the First has been fully ratified and is a permanent part of the Federal Constitution.

Correcting History to Give the People The Government That They Were Promised and to Which They are Constitutionally Entitled:

In our Federal Constitutional form of Government, the Constitution’s Article I

& II make clear that in the regular Federal Statutory Law making process it is the role of the People, speaking through their duly elected Representatives in the

Congress, with participation of the Article II President, to say in the first instance what the Federal Statutory Law shall be. It is equally clear that in the collateral

Article V Federal Constitutional Law making Process at issue in this case4, that it is the role of the People, speaking first through a two thirds vote in both the United

4 The Constitution’s Article V also has an alternate procedure where amendments and alterations may be initially proposed by a meeting of State Delegates from all of the States meeting at a Convention of States. There is also an alternate procedure where proposed amendments may subsequently be ratified and automatically consummated as positive Federal Constitutional Law by the affirmative vote of three fourths of the States meeting at State Convention in their respective States. A Convention of States for purposes of proposing amendments and alterations to the Constitution has never been convened. The alternate approval process – of three fourths of the States approving a proposed amendment at separate State Conventions in each State – has only been used once, that being to approve the Twenty First Amendment (which effectively repealed and superseded the Nineteenth Amendment).

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States Senate and the United States House, and thereafter through the affirmative vote of assent of three fourths of the State Legislatures, to say in the first instance what Federal Constitutional Law shall be.

It should be noted that the Article II President plays no substantive role in the

Article V Federal Constitutional Law making Process. This is clear from the text of the Constitution’s Article V itself and also by age old precedent. See Hollingsworth v.

Virginia, 3 U.S. (3 Dallas) 378 (1798).

That being said, the odd fact of history is that during the Article V Federal

Constitutional Law making process used by Congress in the Summer and Fall of 1789 that there never was, at any time, one actual single final, or one “enrolled”, hand written or printed version of the twelve proposed amendments prior to the vote in each House. Otherwise stated, there never was any one contemporaneously agreed upon single and correct textual archetype. Rather, because of time constraints due to adjournment looming, there was only one Conference Committee Report written out in longhand by Senator Oliver Ellsworth of Connecticut which contained the

Committee’s agreed upon and recommended changes to the text of the Preamble,

Article the Third, Article the Eighth and Article the First.

To understand the actual text that was being approved required reference by the Members of the House and Senate to three documents: The Senate Printing of the House’s initially proposed 18 amendments and alterations, the House Printing of the Senate’s alternately proposed 12 amendments and alterations, and the one single hand written Conference Committee Report.

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Only after the approval votes were taken in the House on Friday September

24, 1789 and in the Senate on Saturday September 25, 1789 was an archetype of sorts

(the 14 hand engrossed “copies”) prepared. The word “less” appeared at four places in the text of Article the First, so making the “less” to “more” change in the correct place of the archetype and any copies was important.

Again, as noted, to understand where all changes in the preamble, Article the First, Article the Third and Article the Eighth were to be made after the final vote in the House and Senate required reference to three related documents: (1) The

Senate Printing of the House’s initially proposed 18 amendments and alterations, (2) the House Printing of the Senate’s alternately proposed 12 amendments and alterations, and (3) the one single hand written Conference Committee Report.

However, rather than give the engrossing clerks the three documents just noted, some clerk prepared a separate 2 page document, handwritten out in longhand with iron gall ink on paper, which included the changes to the preamble and Article the Third and Article the Eighth verbatim and that clerk’s interpretation as to where to make the “less” to “more” change in the text of Article the First.

Rather than directing the engrossing clerks to make the change to the correct and designated text of Article the First in the second “line” of the three “lines” (the

“…last line but one …”, or otherwise described as the penultimate, or “second to last”, line) as actually and specifically directed and intended by the Conference Committee

Report which Congress had expressly approved and adopted, the clerk instead looked at the text of Article the First as contained in the Senate Printing of the House’s 18

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proposed amendments, and misconstruing or not understanding that the phrase

“…last line but one …” was referring to the second line in the three line progression, instead looked at the printed text from top to bottom in a linear way as lines printed from top to bottom, and went up one line from the bottom (his misinterpretation of

“… last line but one …”), and wrote out the now inaccurately changed text of Article the First in full in long hand.

Ellsworth’s Committee Report was never given to the engrossing clerks and instead was filed away with Senate Records for the next 200+ years. And instead, the engrossing clerks were given the following three documents: (1) The Senate

Printing of the House’s initially proposed 18 amendments and alterations, (2) the

House Printing of the Senate’s alternately proposed 12 amendments and alterations, and (3) the 2 page hand written document with the clerk’s directions as to where to make verbatim changes, which was wrong as where to make the “less” to “more” change in Article the First.

Thereafter, the engrossing clerks prepared 14 substantially identical “copies” hand engrossed with quill pens (literally feathers) and iron gall ink (a liquid rust of sorts) on parchment (animal skin), and the one “copy” retained by the Federal

Government, today on perpetual public display in the National Archives (the other

13 were sent to the States and to North Carolina and Rhode Island) thereafter essentially became the de facto archetype.

These “after the fact 14 copies” were reviewed with other statutes which had actually been voted on by followed the full process of “inrollement” (to ensure textual

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accuracy) which had been literally abandoned in the case of the adoption of the twelve proposed amendments, so the mistake in Article the First was not caught.

To make matters worse, later that week when reviewing and revising and correcting the official “rough” (handwritten) Senate Journal and House Journal, and when the stenographic notes from the “unofficial” Congressional Register were being reviewed and revised and corrected and compared, all three inaccurately reported the directions of the Ellsworth Committee Report, rather than simply re-printing verbatim what was said, with each instead paraphrasing and saying the change was to be made “… in the last place of the said article …”.5

So the mistake had been made, and if the incorrect Senate Journal and incorrect House Journal and the incorrect Congressional Register were consulted in the future to try to make sense of the last minute change in Line 3 of Article the First the mistake could not be discovered. Reference to the actual Ellsworth Conference

Committee Report was required.

5 It is known that Thomas Lloyd and his staff of shorthand takers, when compiling the unofficial Congressional Register, always compared and harmonized the contents of the Congressional Register set for printing with the “rough Journal” (handwritten contemporaneously taken first draft) kept by House Clerk Jonathan Beckley and his staff. The respective staffs worked together to ensure everything read the same. Moreover, Beckley burned the “rough Journal” once printed so that the later approved printed version would be controlling. The Senate during this time met in closed session, but Senate Secretary Otis and his clerical staff also compared their versions. The Senate Rough Journal, today at the Library of Congress, contains the misstatement as paraphrased.

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Thereafter, an unascertainable small number of 2 sided single page printings

(less than 100) were prepared by New York Printer Thomas Greenleaf with 1 copy for each Member of Congress, a 2 page copy was attached to the back of each of the 700 copies of the official Legislative Journal of the Senate at pages 263 and 264 (also printed by New York Printer Thomas Greenleaf), and also at pages 92 and 93 in the

600 copies of the Laws and Acts of Congress printed by New York City Printers

Francis Childs and John Swaine. See Plaintiff’s First Amendment Complaint at

“Exhibit J”.

Due to events just described each of the 14 hand engrossed copies contained a literal “Scrivener’s error” in the most pure sense of the term (what was written down by a clerk not what was legislatively approved), and all approximately 1,400 official printed copies therefore had perpetuated a “Scrivener’s / Printing error” in the text of

Article the First. Due to mistakes in the Senate Journal, House Journal and

Congressional Register the scrivener’s error would remain hidden. Worse, the mistake was perpetuated again years later in the Gales & Seaton official re-printings of the Journal of the Senate (1820) and the Journal of the House (1824) and commercially published Annals of Congress (1834) (The Annals of Congress was, for the First Congress, First Session, literally simply a verbatim re-printing of Thomas

Lloyd’s Congressional Register).

Moreover, even with the mistake, most people read Article the First as guaranteeing perpetual growth with 50,000 being a maximum number of persons a

Representative could represent as intended anyway. It is from these incorrect copies

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that newspapers made additional copies for distribution. It was specifically from the printed version on pages 92 and 93 in the 600 copies of the Laws and Acts of Congress from which various State Legislatures made additional copies, perpetuating another easier to recognize printing error in Article the Tenth in all such later State

Legislature authorized re-prints. (See “Exhibit J” to Plaintiffs First Amended

Complaint). (For a more detailed explanation, see How “Less” is “More” …,

Chapters 8 & 9 at pages 129-220).

Because of what has just been described, in 1791 when the Congress officially authorized “corrected” copies of the Laws and Act of Congress … were printed and issued by printers Childs & Swaine and also by printer Andrew Brown (each now correcting the text of Article the Tenth to read “punishments” rather than

“imprisonments”) the text of Article the First remained unchanged and was not corrected.

For the same reasons the “less” to “more” mistake in the text of Article the First was not recognized and corrected in the subsequent officially authorized compilation edition of the Laws and Acts of Congress edited by Zephania Swift and printed by

Richard Folwell starting in 1796, continuing with various printers thereafter until

1814. See The Laws of the United States of America (In Three Volumes), Published by Authority, PHILADELPHIA: Printed by Richard Folwell, No. 33 Mulberry-Street

(1796) (First Four Congresses in Three Volumes, continued on thereafter) at Volume

III, pages 454 and 455 and Volume IV (the Constitution and Amendments are printed

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after the Laws and Acts at the back of Volume IV before the Table of Contents. The

Amendments are at pages 23-26).

Point in fact, while both the Senate and House were aware that the five State

Legislature’s of Massachusetts, Connecticut, Georgia, Kentucky and Tennessee had not reported anything regarding Article the First, and that while expressing an opinion that “… the said amendment has not as yet become a part of the

Constitution…”, nevertheless a conscious decision was made not to ask those five un- reporting states about any unreported ratifications of Article the First, or whether they now wanted to ratify Article the First. (For a more detailed explanation, see

How “Less” is “More” …, Chapter 12 at pages 465-520).

Thereafter, article the First was simply pretty much lost in history for the next

50 or so years. Indeed, by 1815 the former Article the Third was now routinely referred to as the “First Amendment” or the “First Article”. The “less” to “more” mistake in the text of the real actual Article the First was not recognized during the process of compiling the later second officially authorized compilation Edition of the

Laws and Acts of Congress Edited by James B. Colvin and printed by Bioren, Duane and Weightman because no where in the 5 volume work is there any reference to

Article the First and Article the Second at all! See Laws of the United States of

America from the 4th of March, 1789, to the 4th of March, 1815 (In Five Volumes),

Published by John Bioren and W. John Duane of Philadelphia and R.C. Weightman,

Washington City (1815).

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This is particularly strange as another amendment proposed to the

Constitution dealing with Titles of Nobility was actually listed in this 5 Volume

Edition as fully ratified as part of the Constitution and incorrectly listed as

“ARTICLE 13”. See Id. at Volume I, page 44.

The only official Federal Government publication that in any way referenced the existence of Article the First during this period was in the “SUPPLEMENT” section of the Journal, Acts and Proceedings of the Convention Assembled at

Philadelphia, Monday, May 14, and Dissolved Monday, September 17, 1787, Which

Formed the Constitution of the United States, Published under the direction of the

President of the United States, comfortably to a Resolution of Congress of March 27,

1818, BOSTON: Printed and Published by Thomas B. Wait (1819). The twelve proposed amendments were listed on pages 477 through 469, and the “less” to “more” mistake in the third line of Article the First remained unrecognized and uncorrected.

This publication inexplicably failed to list the September 1791 ratification of Article the First by the Pennsylvania State Legislature, which was then all but lost in history itself for the next 175 years.

In 1844 a contract for the third compilation printing of the Laws and Acts of

Congress was awarded by Congress to Printers Little, Brown & Company of Boston who hired Richard Peters, Esq. (former Reporter of Decisions for the United States

Supreme Court) to edit the volumes to thereafter be known as the United States

Statutes at Large. Little Brown retained the government printing contract for the

United States Statutes at Large until 1874 at which time the United States

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Government Printing Office took over and started to print the laws “in house”, so to speak. The United States Statutes at Large continue today and are compiled, edited and published by the Archivist of the United States under the authority of 1 U.S.C.

§112. In this regard, 1 U.S.C. §112, first enacted in 1947 and amended several times since then, today in its present form provides in relevant part as follows:

… The United States Statutes at Large shall be legal evidence of … proposed or ratified amendments to the Constitution of the United States therein contained, in all the courts of the United States …

[1 U.S.C. §112].

The cited statute does not by its terms limit citation to and reliance on the text of the United States Statutes at Large as “… legal evidence of proposed or ratified amendments to the Constitution of the United States therein contained, in all the courts of the United States …” to any particular time frame. Otherwise stated, the text of Article the First in the United States Statutes at Large creates a presumption of correctness (albeit a rebuttable presumption of correctness) to the text and information printed and contained therein as pertains to Article the First. Therefore, the text of Article the First as contained in Volume I of The Statutes at Large is

“presumptively” the correct text.

The text of Article the First is found on page 97 where the September 25, 1789

Resolution of Congress proposing the twelve amendments are re-printed in full. The text on page 97 of Volume I of the Statutes at Large reads as follows:

Art. I. After the first enumeration required by the first article of the Constitution, there shall be one

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Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons. (emphasis added).

[Statutes at Large, Volume I, page 97].

However, the “Third Line” (or “Level”) in the progression of the text of Article the First contains a mistake in that the actual text should not read “more” but rather should read “less”, and should correctly read as follows: “…that there shall not be less than two hundred Representatives, nor LESS than one Representative for every fifty thousand persons.”

Fixing the “Scrivener’s Error”:

A. There was a “Scrivener’s Error” Made in Article the First:

Curiously, to date there is scant scholarship on Article the First. One of the few books that mentions Article the First is Akhil Reed Amar’s The Bill of Rights. See

The Bill of Rights, by Akhil Reed Amar, published by Yale University Press, New

Haven, and London (1997). Amar specifically gives the following caveat to the reader regarding his sources at the end of his book: “For debates in the First Congress I generally cite the handy Schwartz collection, which faithfully reprints materials from the harder-to-find and harder-to-use Annals of Congress.” Id. at page 304 (“*”

Footnote). With that caveat, Amar also notes the following observations at the beginning of the book regarding Line 3 of Article the First:

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First, the amendment’s intricate mathematical formula made little sense. If the population rose from eight to nine million in a decade, the requirement that there be at least two hundred representatives would be inconsistent with the requirement that there be not more than one representative for every fifty thousand people. In effect, the amendment required the population to jump from eight to at least ten million in a single decade. The mathematical oddness of the text is confirmed by the lean legislative history that does exist. When initially passed by the House of Representatives, the amendment was worded identically to its final version with one exception: its last clause provided for “not … less than one Representative for every fifty thousand persons. So worded the proposal was sent to the Senate, along with all the other amendment proposed by the House. When the Senate adopted a Bill of Rights whose wording and substance diverged from the House version, the two chambers convened a joint committee to harmonize the proposed bill. At this conference, the word more was inexplicably substituted for less, and the conference paste job was hurriedly adopted by both houses under the shadow of imminent adjournment, apparently without deep deliberation about the substitution’s (poor) fit with the rest of the clause. Thus, it is possible that the technical glitches in the First Amendment’s formula became evident only during the later process of ratifying Congress’s proposed amendments. * * * …Why then did the joint House-Senate committee insert a maximum? The lack of extant records of the committee’s deliberations requires us to speculate …[.]

[Id. at 15 – 16].

Pretty much the only other publication found (before former Plaintiff Eugene

Martin LaVergne’s 2016 book How “Less” is “More” …) is a short monograph digitally published by Jeff Quidam of the organization www.thirty-thousand.org . See The

Minimum and Maximum Size of the U.S. House of Representatives per the

Constitution and Pursuant to all the Versions of the Proposed “Article the First”, by

Jeff Quidam, digital monograph (June 24, 2007), available at www.thirty-

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thousand.org . In his digital monograph, Quidam observes the following regarding

Article the First:

*** For all practical purposes, it is a complete non sequitur to the lengthy debates and legislative actions which were its provenance. *** Instead, it clearly betrays the objective of these predecessor amendments: to ensure that the number of Representatives increase proportionately with the total population and, furthermore, that there be relative equality among congressional districts across the states.

b) The Illogical Discontinuity

A stunning illogical discontinuity occurs in the transition from Tier 2 to Tier 3. As illustrated by the chart on page 18, the maximum size at the end of Tier 2 is 266 Representatives (when the total population is 8,000,000). However, with the addition of a single person (a total of 8,000,001), Tier 3 is triggered and the allowable ceiling is decreased by 40% to 160. Even if a subsequent legal repair (e.g., via Supreme Court ruling) were to cause the conflicting minimum of 200 to prevail, that would still force an indefensible 25% decrease in the number of Representatives allowed.

c) The Mathematical Defect:

Specifying a minimum number of Representatives that exceeded the corresponding maximum clearly would have defied any sense of reason had it been detected at the time. This defect would have only occurred when the total population was between eight and ten million people.

[Id. at pages 50 – 51].

This last minute Conference Committee recommended change is fairly described by (and as understood by) Amar as mathematically impossible to satisfy and simply “inexplicable”. The change is also fairly described by (and as understood by) Quidam as “… a complete non sequitur to the lengthy debates and legislative actions which were its provenance …” and a change which “… clearly betrays the

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objective of these predecessor amendments …”. See Id. and Ibid. However, Amar and Quidam were both relying upon false and inaccurate information and flawed historical sources.

When one is presented with less than all of the actual accurate information, or when presented with or relying upon literally factually inaccurate information, it is difficult to explain an otherwise easily explainable series of events. Some pieces of the puzzle are missing, so the whole picture cannot be seen. In this regard, for his source information for his monograph Quidam cites and relies heavily upon both

Amar’s Bill of Rights and, unlike Amar, also independently to the Annals of Congress published by Gales & Seaton in 1834. However, as noted earlier, the Annals of

Congress for the First Congress, First Session, were a verbatim re-print of the

Thomas Lloyd’s Congressional Register, which, like the official Journal of the Senate and Journal of the House (and the later official 1820 Senate Journal & 1824 House

Journal Gales & Seaton re-prints) and the 2 Volume Schwartz Edition all inaccurately paraphrased Ellsworth’s hand written Conference Committee Report saying the “less” to “more” change was to be made “… in the last place of the said article …”. This of course is NOT where the change was directed to have been made by Ellsworth’s Conference Committee Report.

Point in fact, Ellsworth’s one hand written Conference Committee Report directed the change to Article the First to be made in the second “line” of the three

“lines” (the “…last line but one …”, or otherwise described as the penultimate, or

“second to last”, line). This is what the Conference Committee Report recommended,

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and this is what both the Senate and House agreed to and expressly approved and adopted.

It was simply written down wrong later after the votes were taken in a

Scrivener’s Error that was converted to a printing error that was then thereafter virtually unrecognizable because of a related substantive inaccurate “paraphrasing” error in the Senate and House Journals and the Congressional Register (1789) and

Annals of Congress (1834). Tragically, the answer is really that simple. The proper and approved text of the Third – or Last - Line of Article the First properly reads as follows:

* * * after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred representatives, nor less one representative for every fifty thousand persons. (Emphasis added).

Indeed, after former Plaintiff Eugene Martin LaVergne “discovered” the unreported ratifications of Article the First by the Connecticut State Legislature

(1789 or 1790) and the Kentucky State Legislature (1792) and “discovered” the unreported earlier 1789 ratification of Article the First by the Virginia State

Legislature and “discovered” the one single hand written Ellsworth Conference

Committee Report today in the National Archives (which document sat essentially untouched and unread in Senate Records for over 200 years). When all the information is put together, it is obvious a mistake was made. Not a failure of expression, not poor legislative draftsmanship. Rather, a literal mistake made first by a clerk and then again by the engrossing clerks – not scholars but simply men with good handwriting – when they wrote down the wrong thing in the wrong place!

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Now with the research found and made available by former Plaintiff Eugene

Martin LaVergne all put in one place together for consideration, of those few persons in the nation actually paying attention to such obscure constitutional questions as to the proper wording of the text of Article the First, to quote an article from Sean Trende in the University of Virginia’s Sabato’s Crystal Ball written after LaVergne disseminated the information, now …”most agree that there’s a scrivener’s error in the final line…” and also that Article the First “… should technically be part of the

Constitution: It was ratified by the requisite number of states in June 1792 …”. See

“It’s Time to Increase the Size of the House”, by Sean Trende, Senior Columnist,

Sabato’s Crystal Ball, published by University of Virginia Center for Politics,

Richmond, Virginia (March 6, 2014).

B. Application of the “Scrivener’s Error” Doctrine to Correct the Text of Article the First:

It is universally accepted that Article III Courts may, when confronted with adequate proof, correct legislative drafting mistakes, i.e. so-called “Scrivener’s

Error’s”, but that they may do so only when the mistake is “absolutely clear”. The doctrine is universally accepted, even by the most conservative self described and so called “strict constructionalists” and “textualists” like recently deceased United

States Supreme Court Associate Justice Antonin Scalia. See A Matter of

Interpretation – Federal Courts and the Law, an essay by Antonin Scalia, Edited by

Amy Gutman, published by Princeton University Press, Princeton, New Jersey (1997) at pages 20 – 23.

A scrivener is (or better, was) a transcriber of documents. In the literal sense, then, a “scrivener’s error” is a mistake

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of transcription, which is to say a mismatch between original (e.g. spoken word, manuscript) and copy. Today, of course, Congress does not use actual scriveners. Indeed, the phrase “scrivener’s error” came into popular usage only once reliance upon scriveners was uncommon. The phrase is thus a term of art, referring to a particular sort of legislative mistake.

[See “The Scrivener’s Error”, by Ryan D. Doerfler, 110 Nw.L.Rev. 811 (2016) at page

816].

While universally accepted, some Judges and commentators believe the modern doctrine should properly be treated as a branch of the so called “Absurdity

Doctrine” because Congress no longer actually uses Engrossing Clerks or Scrivener’s to write down legislation in long hand where literal “errors in transcription” may occur and, once discovered, may need to be judicially corrected as a remedy. Today there are many prophylactic measures in place during the Congressional legislative drafting process that should indeed prevent traditional and simple handwriting mistakes or “typos” from making it into the text transcription. Otherwise stated, today simple “typos” are seldom made.6 So instead, today modern “Scrivener’s Error

6 Despite protective measures in the legislative process being added over the years the fact remains that other later recognized mistakes were still made in the text of Amendments during the Article V Constitutional amending process. In the official first printings of Article the Tenth (today called the “Eighth Amendment”) the word “imprisonments” was mistakenly printed in place of “punishments”. When the mistake was recognized it was simply corrected. More recently, the 17th amendment contains a Scrivener’s Error, or typo, in that the last word of the first paragraph reads “legislatures” (plural), when in fact the word should be “legislature” (singular). The 25th Amendment also contains a Scrivener’s Error, or typo, in that word “department” (singular) is written, which should properly read “departments” (plural). The Scrivener’s Error, or typo, in the 17th and 25th Amendments remain uncorrected in the official text to this day.

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Doctrine” typically deals with and is applied in circumstances where there is ambiguity or contrary meaning in a text as actually passed by Congress because of what it is claimed that Congress meant to say, what Congress should have said, or what Congress was trying to say, to carry out their policy aims (as opposed to what

Congress actually LITERALLY DID say in the text).

Here in this case we are going back in history over 200 years and dealing with a traditional and literal “Scrivener’s Error” in that Congress spoke correctly but that the later hand written documents (made hastily and made using bird feathers and liquid rust on animal skin) did not accurately recite the correct text as actually and literally approved by Congress. And because of the negative language using the words “less” and “more”, the incorrect exchange of words was difficult to see at first glance. With the later mistakes made in the Senate and House Journals and the

Congressional Register and Annals of Congress, the incorrect exchange of words became all but impossible to recognize.

In the cases of Pritchett v. Office Depot, Inc., 420 F.3d 1090 (10th Cir. 2005) and

Amalgamated Transit Union Local 1309 v. Laidlaw Transit Services, Inc., 435 F.3d

1140 (9th Cir. 2006) the Courts addressed text in a statute where Congress used the negative language and the word “less” when it was claimed that Congress actually meant to use the literal exact opposite word “more”. The 10th Circuit concluded that the statute contained a “typographical error,” and the word “less” should be read as

“more”, thereby avoiding “… a result demonstrably at odds with the intentions of its drafters.” Pritchett v. Office Depot, Inc., supra, 420 F.3d at 1093, n.2. The later 9th

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Circuit decision, construing the same statute, agreed with the 10th Circuit, and saying:

… there is no apparent logical reason for the choice of the word “less” in the statute, use of the word “less” is, in fact, illogical and contrary to the stated purpose of the provision, and the statute should therefore be read to require … not more than 7 days after the district court’s order. (emphasis added).

[Amalgamated Transit Union Local 1309, supra. at 435 F.3d 1146].

Here, it is submitted by Plaintiffs that it is clear beyond any reasonable question that the “less” to “more” “Scrivener’s Error” in the text of Line 3 of Article the First was, in historical context – to quote Ahkil Reed Amar – “inexplicable”, but only so because it was a literal mistake. This Article III Court has the power and authority to correct this mistake and should do so as requested herein.

Compelling the Virginia, Connecticut, and Kentucky State Legislatures to “officially report” the Unreported Ratification Action on Article the First or Alternatively Judicial Notice of the Unreported Ratification Action:

Having now established beyond reasonable dispute that Article the First has been fully ratified and is part of the Federal Constitution based upon history and law, and having now established that Article the First contains a Scrivener’s Error or mistake in Line 3 which this Article III Court must correct, there remains promulgation and declaration and implementation of Article the First.

There are technically “unreported” ratifications of Article the First by the

Virginia State Legislature (December 8, 1789), the Connecticut State Legislature

(Fall 1789 or May 1790) and the Kentucky State Legislature (June 21, 1792). This

Court has jurisdiction and authority to grant declaratory and injunctive relief against

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the Virginia State Official Defendants, the Connecticut State Official Defendants, and the Kentucky State Official Defendants to compel each State’s Legislature to provide “official notice” to the Defendant Archivist of the United States of their respective State Legislature’s unreported ratification action on Article the First pursuant to 28 U.S.C. §1367 and by the Code of Virginia §8.01 – 184, Connecticut

General Statute 59-29 and Kentucky Revised Statutes 418.045, 418.050 and 418.055.

The moving plaintiffs ask that this Article III Court grant such a remedy, or alternatively asks that this Article III Court take judicial notice of the unreported ratifications as per the United States Supreme Court’s Decision in Dillon v. Gloss,

256 U.S. 368 (1921) and evidence now before it, and by Court Order provide the

“official notice” to the Archivist as required by 1 U.S.C. §106(b).

Compelling Archivist’s Promulgation of Article the First Under 1 U.S.C. §106(b):

The Archivist now will be provided with “official notice” within the meaning of

1 U.S.C. §106(b). The text of 1 U.S.C. §106(b) is mandatory and non-discretionary, and as such the Court should enter an Order directing the Defendant Archivist to immediately and affirmatively comply with §106(b) and declare and publish and promulgate Article the First in accordance with law with the Scrivener’s Error corrected in the text at Line 3 to now properly read “less”. See 5 U.S.C. §702, 28

U.S.C. §2201(a), 28 U.S.C. §2201(a), 28 U.S.C. §2202, and 28 U.S.C. §13617; see also

7 The factors to be considered and the evaluation process for an Article III Court to use when determining whether to issue a mandamus pursuant to 28 U.S.C. §1361 are outlined by the United States Supreme Court in Cheney v. United States District Court, 542 U.S. 367 (2004). For a writ of mandamus to issue, the moving party must show (1) that there is no other adequate means to obtain - 42 - Case 1:17-cv-00793-CKK-CP-RDM Document 135-1 Filed 09/20/18 Page 43 of 44

F.R.Civ.P. 57, F.R.Civ.P. 65 and L.Cv.R. 65.1; see additionally Chamber of Commerce of the United States v. Reich, 74 F.3d 1322 (3d Cir. 1996) (Plaintiffs have a non- statutory right to bring this action to challenge the lawfulness of what is Article II

Executive Branch Action and to seek to enjoin its wrongful implementation and / or failure to implement by Federal Officials.).

Declaration that Public Law No. 115-22 (04/03/2017) is Unconstitutional And Enjoining Application of Such Law and Order; Compelling Corrected Action under the Automatic Apportionment Act of 1929 and Special Elections, and Declaring Defendant Ryan is not Speaker:

With Article the First declared as law by the Archivist, it is clear that the 2010

Decennial Apportionment of the House of Representatives as conducted by the

Defendant Secretary of Commerce in accordance with the “Automatic Apportionment

Act of 1929”, as amended, 2 U.S.C. §2, is unconstitutional as violating the mandatory

Article the First Constitutional standard “…that there shall not be less than two hundred Representatives, nor less than one Representative for every fifty thousand persons.” It is therefore equally clear that third vote in the House of

Representatives on March 28, 2017 approving what was then known as S.J. Res. 34

(know known as Public Law No. 115-22 (04/03/2017)) was invalid, ultra vires, and done in violation of the Constitution’s Article I’s “Quorums Clause”, rendering Public

Law No. 115-22 (04/03/2017) unconstitutional.

the relief desired, (2) that the right to the issuance of the writ is “clear and undisputable”, and (3) the Court must find that the issuance of the writ is appropriate under the circumstances. Id. at 380-381.

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The Defendant Secretary of Commerce, President and House Clerk must conduct a new apportionment under 2 U.S.C. §2 and the other State Defendants must immediately implement same with Special Elections. In the interim, the Court must also Declare that Defendant Ryan is not the legal Article I Speaker of the House and is not in the lawful line of Presidential succession. However, that being said, moving

Plaintiffs hereby seek injunctive relief (first Preliminary, then Permanent) in the form requested in the Notice of Motion submitted herewith.

Conclusion:

For the foregoing reasons and authorities cited in support thereof, it is requested that Plaintiff’s Motions for Preliminary Injunction, Summary Judgment, and Permanent Injunction should be granted.

RESPECTFULLY SUBMITTED this 20th day of September 2018.

By:X s/Scott E. Stafne x Scott E. Stafne, WSBA# 6964 Sarah S. Hemphill STAFNE LAW Advocacy & Consulting 239 N Olympic Avenue Arlington, WA 98223

Alexander Penley, Esq. GLOBAL PENLEY LAW 4111 Crittenden Street Hyattsville, MD 20781

Attorneys for Plaintiffs

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