Justice Thomas 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.
Justice Thomas Dissenting Opinion
“The motions of Donald J. Trump for President, Inc. for
leave to intervene as petitioner are dismissed as moot. The
motions of Thomas J. Randolph, et al. for leave to intervene
as respondents are dismissed as moot. The motion of Hon-
est Elections Project for leave to file a brief as amicus curiae
in No. 20–542 is granted. The motion of White House
Watch Fund, et al. for leave to file a brief as amici curiae in
No. 20–574 is granted. The petitions for writs of certiorari
are denied.
JUSTICE THOMAS, dissenting from the denial of certiorari.
The Constitution gives to each state legislature authority
to determine the “Manner” of federal elections. Art. I, §4,
cl. 1; Art. II, §1, cl. 2. Yet both before and after the 2020
election, nonlegislative officials in various States took it
upon themselves to set the rules instead. As a result, we
received an unusually high number of petitions and emer-
gency applications contesting those changes. The petitions
here present a clear example. The Pennsylvania Legisla-
ture established an unambiguous deadline for receiving
mail-in ballots: 8 p.m. on election day. Dissatisfied, the
Pennsylvania Supreme Court extended that deadline by three days. The court also ordered officials to count ballots
received by the new deadline even if there was no evi-
dence—such as a postmark—that the ballots were mailed
by election day. That decision to rewrite the rules seems to
have affected too few ballots to change the outcome of any
federal election. But that may not be the case in the future.
These cases provide us with an ideal opportunity to address
just what authority nonlegislative officials have to set elec-
tion rules, and to do so well before the next election cycle.
The refusal to do so is inexplicable.”
“Because the judicial system is not well suited to address
these kinds of questions in the short time period available
immediately after an election, we ought to use available
cases outside that truncated context to address these ad-
mittedly important questions. Here, we have the oppor-tunity to do so almost two years before the next federal elec-
tion cycle. Our refusal to do so by hearing these cases is
befuddling. There is a clear split on an issue of such great
importance that both sides previously asked us to grant cer-
tiorari. And there is no dispute that the claim is sufficiently
meritorious to warrant review. By voting to grant emer-
gency relief in October, four Justices made clear that they
think petitioners are likely to prevail. Despite pressing for
review in October, respondents now ask us not to grant cer-
tiorari because they think the cases are moot. That argu-
ment fails.
The issue presented is capable of repetition, yet evades
review. This exception to mootness, which the Court rou-
tinely invokes in election cases, “applies where (1) the chal-
lenged action is in its duration too short to be fully litigated
prior to cessation or expiration, and (2) there is a reasonable
expectation that the same complaining party will be subject
to the same action again.” Davis v. Federal Election
Comm’n, 554 U. S. 724, 735 (2008) (internal quotation
marks omitted) (resolving a dispute from the 2006 election);
see also Anderson v. Celebrezze, 460 U. S. 780, 784, and
n. 3 (1983) (resolving a dispute from the 1980 election).
Here, the Pennsylvania Supreme Court issued its decision
about six weeks before the election, leaving little time for
review in this Court. And there is a reasonable expectation
that these petitioners—the State Republican Party and leg-
islators—will again confront nonlegislative officials alter-
ing election rules. In fact, various petitions claim that no
fewer than four other decisions of the Pennsylvania Su-
preme Court implicate the same issue.3 Future cases will
arise as lower state courts apply those precedents to justify
intervening in elections and changing the rules.
One wonders what this Court waits for. We failed to set-
tle this dispute before the election, and thus provide clear
rules. Now we again fail to provide clear rules for future
elections. The decision to leave election law hidden beneath
a shroud of doubt is baffling. By doing nothing, we invite
further confusion and erosion of voter confidence. Our fel-
low citizens deserve better and expect more of us. I respect-
fully dissent.”
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