Alito Gorsuch dissent Republican Party of Pennsylvania v Degraffenreid
SOS, Feb 22, 2021, Trump Writ of Certiorari denied, Amicus briefs accepted
“Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it.”
“It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.
So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.
If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.”
“The judicial power of the United States is extended to all cases arising under the constitution. Could it be the intention of those who gave this power, to say that, in using it, the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises? This is too extravagant to be maintained.”
“Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? if it is closed upon him, and cannot be inspected by him?”…Marbury V Madison
“We the people are the rightful masters of both Congress and the courts, not to overthrow the Constitution but to overthrow the men who pervert the Constitution.”…Abraham Lincoln
From the US Supreme Court in
REPUBLICAN PARTY OF PENNSYLVANIA
20–542 v.
VERONICA DEGRAFFENREID, ACTING SECRETARY
OF PENNSYLVANIA, ET AL.
Alito Gorsuch DISSENTING OPINION
“JUSTICE ALITO, with whom JUSTICE GORSUCH joins,
dissenting from the denial of certiorari.
I agree with JUSTICE THOMAS that we should grant re-
view in these cases. They present an important and recur-
ring constitutional question: whether the Elections or Elec-
tors Clauses of the United States Constitution, Art. I, §4,
cl. 1; Art. II, §1, cl. 2, are violated when a state court holds
that a state constitutional provision overrides a state stat-
ute governing the manner in which a federal election is to
be conducted. That question has divided the lower courts,*
and our review at this time would be greatly beneficial.
In the cases now before us, a statute enacted by the Penn-
sylvania Legislature unequivocally requires that mailed
ballots be received by 8 p.m. on election day. Pa. Stat. Ann.,
Tit. 25, §§3146.6(c), 3150.16(c) (Purdon 2020). Neverthe-
less, the Pennsylvania Supreme Court, citing a provision of
the State Constitution mandating that elections “be free
and equal,” Art. I, §5, altered that deadline and ordered that mailed ballots be counted if received up to three days
after the election, Pennsylvania Democratic Party v. Boock-
var, ___ Pa. ___, ___–___, 238 A. 3d 345, 362, 371–372
(2020). Both the state Republican and Democratic parties
urged us to grant review and decide this question before the
2020 election. See Application for Stay in Republican Party
of Pennsylvania v. Boockvar, No. 20A54, pp. 2–3; Demo-
cratic Party of Pennsylvania Response to Application for
Stay in No. 20A54, pp. 8–9. But the Court, by an evenly
divided vote, refused to do so. Nos. 20A53 and 20A54, ante,
p. ___ (THOMAS, ALITO, GORSUCH, and KAVANAUGH, JJ.,
noting dissents). That unfortunate decision virtually en-
sured that this important question could not be decided be-
fore the election. See No. 20–542, ante, p. ___ (statement of
ALITO, J., joined by THOMAS and GORSUCH, JJ.).
Now, the election is over, and there is no reason for refus-
ing to decide the important question that these cases pose.
“The provisions of the Federal Constitution conferring on
state legislatures, not state courts, the authority to make
rules governing federal elections would be meaningless if a
state court could override the rules adopted by the legisla-
ture simply by claiming that a state constitutional provi-
sion gave the courts the authority to make whatever rules
it thought appropriate for the conduct of a fair election.”
Ante, at 3; see also Bush v. Palm Beach County Canvassing
Bd., 531 U. S. 70, 76 (2000) (per curiam). A decision in
these cases would not have any implications regarding the
2020 election. (Because Pennsylvania election officials
were ordered to separate mailed ballots received after the
statutory deadline, see Republican Party of Pa. v. Boockvar,
No. 20A84, ante, p. ___, we know that the State Supreme
Court’s decision had no effect on the outcome of any election
for federal office in Pennsylvania.) But a decision would
provide invaluable guidance for future elections.”
“For these reasons, the cases now before us are not moot.
There is a “reasonable expectation” that the parties will
face the same question in the future, see Wisconsin Right to
Life, Inc., 551 U. S., at 463, and that the question will evade
future pre-election review, just as it did in these cases.
These cases call out for review, and I respectfully dissent
from the Court’s decision to deny certiorari.”
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