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.
Jeff opines:
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.
-Phil
23 responses to SCOTUS: Is It Really Over?
Great article, Phil. Let’s-someone find any listing to the latest and next SCOTUS list of Pending Cases on their site. Is there not such a list? I thought I saw it, a few days ago.
Arlen,
Well, naturally, there is the page located on my site (!), but of course I’m rather limited in my understanding of whether or not Leo and Cort’s cases are really dead or just “kind of” dead
-Phil
Following up Is the Judicial Review Allowed Only After the Electoral College Vote and Congressional Certification?
I think it is quite clear that the difference in jurisdiction between Wrotnowski v. Bysiewicz and Bush v. Gore is that, for Wrotnowski there are constitutional “mechanisms” in place for a “challenge” of a presidential candidate’s eligibility, while in the case of the Bush v. Gore, the question had to do with the Florida Supreme Court overruling in that state’s process for counting and certifying its vote (a constitutional issue bubble-up).
That is a distinction great enough for a judge to drive a truck through.
1. Wrotnowski: a U.S. constitutional process is already proscribed for this challenge. Jurisdiction is spelled out.
2. Bush: State Supreme Court violated their own Constitution. Jurisdiction has already been violated by a lower court (which is a classic standing for of SCOTUS case).
Keep faith. Push senators and representatives to action. Do what is necessary to inform the People.
Let’s all go to the Capitol Building on January 7 with defibrilator paddles.
SCOTUS has now prevented itself from acknowledging the question whether Obama is or is not a “natural born citizen” (as distinguished from “citizen”) three times and counting: First before the Nov 4 general election and twice before the Dec 15 vote of the College of Electors. Other cases on the same question are at, or are heading to, SCOTUS. Whether SCOTUS ultimately decides if Obama is or is not a “natural born citizen” only after the Electors vote, only after Congress acts on the Electors’ vote, prior to Obama’s inauguration, or only after Obama’s inauguration, SCOTUS will have to decide — or the people and/or the military will. The issue no longer is Obama. The issue is SCOTUS.
Whatever the nature of the cases in question, the pertinent fact is that it only takes on senator and one rep to stop the process so as to glean qualifications. The Cases should be open because it would be easier to proceed. Nevertheless other cases are in the works, including at least one that covers the natural born citizen concern.
[...] The Right Side of Life » Blog Archive » SCOTUS: Is It Really Over? 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 … [...]
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.
I think the fact that their dockets say nothing about the Supreme Court denying their request for certoriari may be related to the fact that their dockets say nothing about Donofrio and Wrotnowski requesting certiorari. Donofrio filed an application for stay pending the filing and disposition of a petition for a writ of certiorari, and that application was denied by the court last Monday, Dec. 8 . . . but it appears that Donofrio never got around to filing an application that petitioned for a writ of certiorari. If he did, it’s puzzling that the docket doesn’t mention it. Again, Wrotnowski filed an application for stay and/or injunction, asking the Supreme Court to prevent the Electoral College for voting, but that application was rejected on Monday, Dec. 15 . . . but it appears that Wrotnowski never filed an application that petitioned for certiorari. Were their petitions for writs of certiorari bundled together with their applications for injunctions, and thus rejected at the same time as their requestions for injunctions? Or did they simply fail to petition for certiorari, and thus never actually filed a proper appeal with the Supreme Court?
Trying to clear this up, at FreeRepublic.com, The Right Side of Life, America’s Right, and Investigating Obama. Should have done the homework earlier.
The Donofrio v. Wells case mentions a subsequent (but not included??) petition for a writ of certiorari.
The Wrotnowski v. Bysiewicz case does not even refer to a petition for certiorari.
Messrs. Donofrio and Wrotnowski have for now “gone dark,” but maybe they will “alert the media” as John Gielgud said to “Arthur” in the movie, tomorrow.
Maybe the major question now is, what cases for writ/injunction might the SCOTUS hear on January 9? — from whom? — how? — based upon what?
No, its not over, because there are other cases, and esp. after the 8th, there will be other constitutional grounds for filing cases.
But as for these cases, Leo has made it clear that he and Cort are not refiling…
Phil,
I’m with you, I’m not sure what the basis of Leo and Corts’ cases are. Did they ask the courts to stay the election? I firmly beleive that should be denied since the constitution granted congress the sole authority to set the election date. The election by itself would not be a violation of the constitution and therefore SCOTUS would have no authority to make a ruling.
Did they ask the courts to declare BHO. MC and #3 constitutionally unqualified to be on the ballot because they are not natural born citizens? I can see the merits of the arguments: deny now or wait until they are officially elected. Kind of like telling the Detriot Lions they are not qualified to play in the Super Bowl, stay home, or telling them to show up and we will let them know if they are qualified after the game starts.
My Senators are Bob Casey(democrat) and single bullet, Scottish Law Arlin(closet democrat). No chance with either. My congressman is a card carrying union democrat, no chance there either. My daughter and her husband are very passonate about this issue and I will be working with them on lobbying their congressman, who is a republican. We’ll see.
I posted on CW, asking if there are any eastern PA lawyers interested in exploring the possibility of representing me in a legal action. I’m making the same plea here. I will make calls today to lawyers that I know and see if there is any interest. Time is short.
My non legal point of view is;
1) Must establish standing
2) Must show how it impacts you
3) Keep the appeal very narrowed and focused.
I have some ideas on these points.
Enough rambling, I have to get online and see how my Igs did last night. My son called my at 1230 but I was asleep and didn’t answer the phone. Something good must have happened.
Eric
Regardless, of the Sup. Ct. cases, and assuming that they are waiting so as to not appear to take the election from the People as they did in 2000, it is time for the next step which is to contact our 2 Senators and 1 Representative who will convene Jan 6 to certify the vote and to inform them that they will lose their jobs if they fail to Object.
All Americans deserve their “Public Servants” to comply with the requirements of the Constitution or there is no law at all.
The question is in front of them. By his own admission he was a dual citizen at birth and there must be a clear finding by the Sup. Ct. to the issue so that all Americans may be certain that the person in the White House has the legal authority to act on their behalf.
Arlen,
If I were to go with any theory, I’d definitely go with yours, as the justification behind it sounds very reasonable.
It is _very_ important for folks to realize that what Leo and Cort were asking for was a stay of the Electoral College vote. In order for SCOTUS to have granted this, there would had to have been some overarching influence on the Electoral College, per se, that kept it from exercising its constitutional duty. In this case, there was and is no such thing.
The issue is eligibility, and we still have a few other “checks” in the system that — failing a good statesman/woman stepping up to the plate and yelling, “back the truck up for a second!” — it is conceivable the Judiciary would then step in (if someone requests it, being the key) and make a determination.
Keep up your excellent work,
-Phil
Jordanes,
Per Bush v. Gore, both Leo and Cort asked the Court to treat their applications for emergency stays as if they were writs of certiorari.
The question then becomes thus: since the full Court has denied their emergency stay requests, does that also mean that the cases, per se, are “dead in the water,” to use Jeff Schreiber’s phrase?
I would postulate that even if they are dead, it is very conceivable that, after all Legislative procedures have exhausted themselves (perhaps to include inauguration), a smart citizen could “re”-petition SCOTUS; at that point, depending on what the petition was, SCOTUS might be in a better position to consider it, since the Legislative side had fully run its course.
Remember, this is my opinion; I’m neither an attorney, nor do I play one on the Internet!
Thanks for the comment,
-Phil
Patriot,
Fundamentally, lawsuits still exist, absolutely. It just so happened that, at this time, Leo and Cort seemed to have the best cases covering “natural born citizen” at SCOTUS.
Of course, this is not to say that other cases couldn’t produce something (Phil Berg has already intimated that he has another case under seal that’s making its way through the system).
So, yes — overall, it’s not over for the entire question; but it may be over for Leo/Cort, unless and until they decide to further pursue things after the Legislative route has been exhausted.
-Phil
If “Obama” makes it all the way, and becomes an usurper, the military will have to arrest him. I would think it would be their duty. Part of protecting, and defending the constitution. By virtue of the fact that his father was a British citizen, and thanks to Leo Donofrio, any layman can clearly see that “Obama” is not and can never be a NATURAL BORN CITIZEN. Clearly a usurper, not qualified to hold office. Anyone can understand this phrase; NO PERSON EXCEPT A NATURAL BORN CITIZEN. How can “Obama” get around this issue?
Phil,
Do you know anything about the “Berg under seal case”, and a bigger question is why would it be under seal?
Also noted in the Washington state case that the SS disqualified the Socials Party Candidate. By doing so, SS admits that it does has the authority to review and act on a presidental candidates constitutional qualifications up to and including removing someone from the ballot. Interesting.
Eric
And, so, what else is new? A little mention at Drudge today:
[3 Senators that were constitutionally disqualified due to age WERE admitted to the Senate]
Bob Strauss,
I think a good number of us who have relatives in the Military, need to get them to write the chain of command to bring the NBC clause to light, and to tell them the Republic demands they arrest all who violate this aspect of the Constitution on Jan 8th, and if need been take over DC and clean house. There are times when the only way to preserve order, is to resort to the Military…
Now that the deed is actually done, why couldn’t there be a class action suit raised against the Electoral College for certifying an ineligible person to take office? Obviously, there is evidence in the admittance by that person himself of the dual citizenship at time of birth and the EC had been notified of this in so many communications beforehand. So, either they did or they didn’t violate the law. Why should people who objected openly in time be expected to obey this man illegitimately placed in that office? I believe the approach taken thus far has been too lenient, making suggestions and suppositions rather than seeming to threaten with the law if such irresponsible actions are put into motion.
Kris,
A couple of things.
First, there is much work going on behind the scenes both directed at the Electors as well as electoral reform.
Secondly, it may pay to be patient to wait until after Congress counts and subsequently certifies the Electoral College votes. Once this happens, then, in theory, the Legislative branch will have had its say, and legal challenges might not be so easily dismissed.
Thanks for the comment,
-Phil
Yes, that’s where the information/confusion comes from — Donofrio (NJ) and Wrotnowski (CT) asked the court to grant cert enveloped in their petitions for stays. I think that in the NJ case, Leo maintained his stay upon the November 4 vote and (at least effectively) asked that it be considered an injunction upon the overall election process, by the SCOTUS. In Wrotnowsky, they asked for an injunction against the Electoral College.
And if Donofrio made such a petition with the NJ case, that would give interested Justices reason to allow the case to remain pending (don’t play lawyer on TV proviso, AW).
And THAT I think… is just about the best hint of realistic/optimisitc reality here.
Phil, where is it to be found, or will it be found whether the Wrotnowski petition is also “pending?” My bet is that it will not be so listed, but that the Donofrio petition will be, for the above reason.
But, I’m not betting, unless Mr. Donofrio wants to email me and I’ll bet with him.
Pardon, that last post of mine contradicted itself. I may have time to dig into Donofrio’s sites to see if I can scan the petititons. I recall that the NJ case asked for cert after injunction and would highly doubt that Donofrio would do no less with the CT case. So, if the NJ case is still listed as “pending,” so should the CT case. I am still not willing to say these cases are quite dead, that being the “case.”