SCOTUS: Is It Really Over?
As you will notice from their respective dockets (see “Supreme Court Info” on sidebar), the cases for Leo Donofrio and Cort Wrotnowski currently show that the Supreme Court has denied their respective stay requests, yet show nothing about denying their request for Certorari.
We are fortunate to have two respectable Internet posters: theobamafile.com (technically not a blog) believes that these cases haven’t been completely denied, while Jeff Schreiber at americasright.com believes that they’re “dead in the water”…
Update: Dr. Taitz recently posted some great commentary on the subject.
Update: CitizenWells is following the Electoral College process quite intimately, focusing especially on California.
Judicial review is allowed only after the Electoral College vote and Congressional Certification.
The Justices denied the “stay’ but have retained the “certori.” It isn’t dead. They’re waiting for the Electoral College to actually elect him. Obama is not President Elect until after the Electoral College “elects” him. Then Congress must approve the Election. Only one senator AND only one representative are needed to stop Obama’s election approval.
Mechanisms exist under the Twelfth Amendment and 3 U.S.C. 15 for any challenge to any candidate to be ventilated when electoral votes are counted, and the Twentieth Amendment provides guidance regarding how to proceed if a president elect shall have failed to qualify.
Issues regarding qualifications or lack thereof can be laid before the voting public before the election and, once the election is over, can be raised as objections as the electoral votes are counted in Congress.
Therefore, this order holds that the challenge presented by plaintiff is committed under the Constitution to the electors and the legislative branch, at least in the first instance. Judicial review, if any, should occur only after the electoral and Congressional processes have run their course.
The federal government does not take official notice of the presidential election until the current Vice President opens the ballots on January 8th; the court is simply acting on this legal fact.
As far as I know–and I very much could be wrong–the applications for stay in both the Wrotnowski and Donofrio case essentially asked the Court two questions: First, whether the Court would consider the applications for stay as a petition for writ of certiorari, and second, whether the Court would grant that petition for writ of certiorari and agree to hear the case at hand on its merits. In Bush v. Gore, for example, the same sort of process was taken, with an application for stay filed first and subsequently treated by the Court as a petition for certiorari in order for the case to be heard from there. That’s why most Election Law casebooks have two separate opinions — one for whether the stay should be considered a petition for certiorari, and another for the petition itself.
In the Wrotnowski and Donofrio cases, those applications for stay–the ones asking the Court to consider them as petitions for writ of certiorari–were denied. Therefore, as far as I know, there is no petition for writ of certiorari to live on in perpetuity in either case. Thus, the Donofrio case, in its current form, is dead in the water. As is the Wrotnowski case.
Incidentally, I previously linked over to InvestigatingObama with their take on this: Is the Judicial Review Allowed Only After the Electoral College Vote?
theobamafile goes on to say:
Only one senator AND only one representative — so start writing yours today! — Use this chart and associated info in your message.
No matter how you think all of this is going to go down, here are my thoughts on the process, going forward. Also, don’t forget that a current listing of eligibility lawsuits can be found here and I’ve aggregated a number of State-based electoral reform initiatives here.
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