Forrester Case Still Live in the Supreme Court

I have just checked to find out what documents were filed in the US Supreme Court by Doug Forrester. The lamestream media has blown it, big time. So has the Court's Press Office. Forrester has NOT filed anything new in the Supreme Court this week. On the other hand, the case is still live.

Last week, Forrester filed TWO documents with the US SC. One was the Request for Emergency Relief (which was denied not by Justice Souter alone, but by the whole Court). The other, however, was a Petition for Writ of Certiorari, which is the standard request for the Court to take a case in due course.

Somewhere between Justice Souter's office and the Clerk's Office they LOST TRACK of the Petition for Cert. The Press Office released the FALSE information that only the Request for Emergency Relief had been filed. A lawyer for the National Republican Senatorial Court had to trot over to the Court and point out that there were TWO documents filed, not just one.

Late yesterday, the Court "FOUND" the Petition for Cert, which has NOT been acted upon. The Clerk docketed that paper. The press noticed the docketing, and assumed that Forrester had filed a new case. This was a false conclusion, based on the Court's Press Office getting things wrong at the beginning.

Bottom line: the status of this case in the Supreme Court is exactly what I surmised. The case is dead for emergency relief, but it is very much alive for decision in due course (meaning about eight months from now).

The US SC does not have a set deadline to decide whether to take any case. They certainly will not decide whether to take this one until they see the election results in New Jersey. If Forrester wins, I think it highly likely that four Justices will vote to take the case (that's all it takes), and that will be done. The case will be briefed, argued, and decided.

If Lautenberg wins, the Court will have painted itself into a corner. If they rule for Forrester, what is the remedy? Does the US SC dare issue an Order throwing out a Member of the Senate? To avoid embarrassing themselves, the Court would be unlikely to take the case in that situation.

What I have just said here is the plain unvarnished truth. Anything you read to the contrary in the lamestream media is hogwash. Trust me, I know these things.

When you win a Supreme Court case on election law, I'll listen to your contrary advice. Til then, you'd be well advised to listen to somoeone who has been there, done that, bought the T-shirt -- repeatedly, including in Bush-Gore, Round I. (My brief for the American Civil Rights Union is posted on the US SC website. It was the only one to urge the Court to strike (or vacate) the Fla. SC decision. That's what the Court did, unanimously. Try matching that event.)

Billybob

You've asked the key question. Will SCOTUS grant cert. They don't have to hear this case.

If they won't hear it timely as an emergency request then why would they wait until after the election?

If Forrester wins the issue is somewhat moot though capable of repetition. If Lautenberg wins then SCOTUS gets involved in a somewhat political decision which SCOTUS does not like to do.

SCOTUS punted this case because it doesn't need the controversy so close on the heels of Bush v. Gore. I don't like it either but it is the reality. Forrester must win at voting booth.

You have missed a main point of this thread. There is a HIGHER standard of proof in the US Supreme Court (and in all other courts for that matter) to grant an injunction than to rule on any case in an ordinary time frame.
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

Most people, including me, are ignorant on most arcane subjects, but they can learn. But some people are not only ignorant, they are agressively proud of their ignorance. Such people are a waste of time to try to communicate with.
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.

No, my friends, NO. A Forrester victory does NOT make the case moot.

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?

>>There's no similar clause for the appointment (currently through popular election) of the Electoral College<<

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.

...they could refuse to honor a Lautenberg election on the basis that the election was un-Constitutional.

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.

A key Supreme Court case in this situation is Lubin v. Pannish, 1974 (?). It said "the rights of the candidates and of the voters are inextricably intertwined." These are our First Amendment rights to political expression and action. As the Court said in Sweezy v. New Hampshire, 1957, the right to vote is the most "basic right," because "all other rights depend on it."
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

No, the decision of Congress on how to count the Electoral College votes in a disputed Presidential election can NOT be appealed to the Supreme Court. Witness the Hayes-Tilden election, decided by a single vote in the College, after a special Commission in Congress awarded ALL of the disputed College votes to Hayes.
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

I was basing my statement on the ruling in Powell vs. McCormack, from 1969, when a Congressmen brought suit in federal court after he was denied a seat by Congress. Justice Warren (take his opinion for what it's worth) wrote:

"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.'"

You write, "The choosing of elected officials is political-and it is best left to the political branches of government."
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

The interesting thing about the Powell case is that the House chose the wrong course of action in dealing with the criminal and reverend from Harlem who kept getting elected, even though he spent most of his time in Bimini to keep away from the long arm of tha law. The House decided not to seat Powell, and the Court held that was wrong.
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

But how does the inaction by the dem controlled NJ legislature effect this case?... Haven't the democrats already corroded the separation of powers sufficiently to insure future chicanery by them when an election at any degree is not going their way? Does the nation actually give a damn? I mean, the despotic democrats operate on the assumption that dividing the people with mayhem and chaos aforethought empoers them! By the SCOTUS allowing this unconstitutional action colluded by the NJ legislature, haven't the despotic democrats already accomplished their objective? [What shocks and saddens me most is the way the SCOTUS appears to have been intimidated by the democrat threatened demaoguery.]

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