Posted on 10/11/2002 7:53:12 AM PDT by Congressman Billybob
Billybob
Also, granting the injunction in the US SC would have required five Justices to vote in favor. Accepting the case for review requires only four Justices to vote in favor. Add the fact that the Supreme Court suffers less institutional embarrassment (maybe) if it decides this case after the election.
The bottom line is, as I said, that it is more likely that the Court will take the case in due course than it was for it to grant the injunction.
Congressman Billybob
Congratulations, you've just been promoted.
Congressman Billybob
P.S. And as for your comment that "anybody can file an amicus brief," please enlighten the class about the number that you have filed, and the number you have filed which have been cited with approval by a majority of the US Supreme Court.
OK, there's something I'm not quite clear on. You brought up the John Anderson case being decided after the 1980 election. But in that instance, John Anderson actually lost the election. If Forrester wins, what standing would he still have to bring suit?
Oh yes, there is:
Amendment XII-"they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate; The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted..."
In the event that the Joint Session of Congress cannot agree on the counting of the votes (for example, if multiple sets of electors are presented from the same state), Congress can follow the Electoral Vote Counting Act, or it can make new law to deal with the situation.
In either event, Congress in Joint Session with the President of the Senate in the chair is the judge of electoral votes-NOT the USSC.
If they decide that the election itself is unconstitutional, then I'd think they'd have to throw out all the results and start over. Otherwise, it could set a really nasty precedent. A candidate who loses an election could then object on the grounds of any type of technicality that the election process favored his competitor, and he - the person that the majority of the people voted against - would be ushered right in.
Except I think it could be argued that it could be appealed to SCOTUS afterwards.
If these critical rights have been assaulted before the election in question, it does not matter whether the "right" person wins the election. The harm would not have been "cured" if Anderson had been elected President in 1980. The harm is not "cured" if Forrester is elected to the Senate in 2002.
In fact, ironically, the Supreme Court has NEVER ruled that there is an independent "right" to be a candidate. Candidates' "rights" are always derivative of the long-recognized rights of citizens who are potential voters for candidates. The Court has never focused on whether the candidates in such cases might or might not win election, or after the election, whether they did or did not win.
Nor should the Court focus on such things. Freedom of religion does not depend on being a part of the largest religion. Freedom of the press does not depend on being the largest-circulation newspaper.
When you focus on harm to the citizens/voters, the Anderson case is identical to the Forrester case. In both, the harm is still there, regardless of the outcome of the election. Does that make sense?
Congressman Billybob
In many clauses, the Constitution gives the power to do a certain act only to a certain individual or group -- the President, the Senate, the Congress, the states, the state legislatures, etc. When such a specific commitment is made, not only is the Supreme Court powerless to change that, it is also obligated by its oath of office to support such commitments -- because they are part of the Constitution.
The whole doctrine of separation of powers is based on obeying these specific divisions of responsibility that were placed in the Constitution to create the "checks and balances" by which each part of government is intended to be a watchdog over the others. There have been more than a few failures in this area, especially in the last fifty years. But the general theory is still alive and well.
Congressman Billybob
The choosing of elected officials is political-and it is best left to the political branches of government.
"Respondents first contend that this is not a case 'arising under' the Constitution within the meaning of Art. III. They emphasize that Art. I, 5, assigns to each House of Congress the power to judge the elections and qualifications of its own members and to punish its members for disorderly behavior. Respondents also note that under Art. I, 3, the Senate has the 'sole power' to try all impeachments. Respondents argue that these delegations (to 'judge,' to 'punish,' and to 'try') to the Legislative Branch are explicit grants of 'judicial power' to the Congress and constitute specific exceptions to the general mandate of Art. III that the 'judicial power' shall be vested in the federal courts. Thus, respondents maintain, the 'power conferred on the courts by article III does not authorize this Court to do anything more than declare its lack of jurisdiction to proceed.'
We reject this contention. Article III, 1, provides that the 'judicial Power . . . shall be vested in one supreme Court, and in such inferior Courts as the Congress may . . . establish.' Further, 2 mandates that the 'judicial Power shall extend to all Cases . . . arising under this Constitution. . . .' It has long been held that a suit 'arises under' the Constitution if a petitioner's claim 'will be sustained if the Constitution . . . [is] given one construction and will be defeated if [it is] given another.'"
Actually, on election law the US Constitution agrees with you. It gives the power to write election laws for President, Senate and House, solely to "the legislatures of the states." It puts that power in the political realm only.
The problem in the Forrester case is that the NJ SC seized that power, which belonged only to its legislature, and rewrote the law. The question is whether the Supreme Court should affirm the political right of the legislatures to write such laws, by slapping down the NJ SC (and any other court) which interferes with that process.
If the US SC accepts the case and decides it, please read the decision with care. I think you will find it agrees with your concept -- a higher court telling a lower court that it had no right to inject judicial power into an area reserved for legislative/political action.
Congress Billybob
But, if the House had seated Powell as a Member, and then expelled him for just cause, the Court would have had nothing to say about it. The expulsion of Members is committed strictly and solely to the discretion of each House.
On its face, the Powell case looks like a big deal. In truth, it only exposes the fact that the House was afraid to conduct an expulsion hearing on Powell and tried the shortcut of refusing to seat him. The Court said "no dice" to the shortcut.
However, after the Powell decision came the instance in 1984 when the House "recounted the votes" and determined that the official Indiana report that the Republican cabdidate had won by 34 votes was wrong, that the Democrat had won by 2 votes, and seated the Democrat. On its face, that was not a "refusal to seat," that was a "ruling on the election." (Powell, of course, won every election with overwhelming numbers of votes.)
Congressman Billybob
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