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Wednesday, December 03, 2008

Electoral College?

News From the Supreme Court on the Obama lawsuit by Donofrio (Berg's lawsuit is NOT in front of SCOTUS on Dec. 5):

"Today I spoke with Patricia McCabe Estrada, Deputy Director of Public Information at the United States Supreme Court. She informed me that Mr. Donofrio’s application was first referred to the full Court by Justice Clarence Thomas on November 19, 2008. After that referral took place the full Court, and not Justice Thomas alone, distributed the application for an emergency stay for Conference of December 5, 2008.

Let me reiterate the main point: DONOFRIO V. WELLS was distributed for conference of December 5, 2008 by the full Court after a prior referral of the application by Justice Thomas."


Apparently, the nine justices of the Supreme Court are taking this very seriously. And, as Patrick points out in the comments on the previous Obama post, the clerks are taking it seriously too. It is indeed the case that Donofrio's supporting documentation was sent to an anthrax facility for a nine-day quarantine, possibly making the material unavailable for SCOTUS review. When this was discovered, copies of the original documents were hand-delivered to SCOTUS the next day by the aggrieved parties in order to circumvent a new anthrax charge.

People are playing every trick in the book to stop a "frivolous" lawsuit?

BTW, if Donofrio's lawsuit goes forward successfully, it's quite possible both Obama and McCain will be ruled ineligible, which would make Speaker Pelosi our next POTUS, at least until new elections could be held.

UPDATE:
Here is an excellent post discussing the difference between "citizen", "naturalized citizen" and "natural born citizen." Several of the comments are worthy of perusal as well.

10 comments:

Patrick said...

From a FindLaw article, replace death with ineligibility:

Pre-Inaugural Death: A Problem in Need of A Solution

Suppose a President-elect were to die between Election Day and Inauguration Day. Shouldn't the Vice President-elect automatically become President on Inauguration Day?

If the death occurs after Congress has counted the Electoral College votes, this is precisely what would happen under the Twentieth Amendment. But suppose the death occurs - whether naturally or because of terrorism - hours before the meeting of the electoral college?

Too unlikely ever to actually happen? Not at all. Consider that in 1872, presidential candidate Horace Greeley died after the election but before the electoral college met. Some electors nevertheless voted for Greeley, and Congress refused to count these electoral votes. Nothing much turned on that decision - Greeley had lost to Ulysses Grant, anyway.

But now suppose the candidate who won the November election died right before the electoral college met, and that some of the electoral college nevertheless voted for him - perhaps because college members had pledged to do so, or because state law purported to bind them, or because they had little time to process the tragedy and consider their other options. If Congress applied the Greeley precedent, then all these electoral votes would be tossed aside, and the candidate who lost the election might well become the President.

Jordanes said...

The Supreme Court isn't treating Donofrio's frivolous lawsuit any more seriously than they treat any other renewed petition for a writ of certoriari. They're just doing what they almost always do when a rejected petition has been refiled with another Justice: rather than have the second Justice rejected the petition and then the petitioner refile with a third Justice, and so on until the petitioner runs out of Justices he can petition, Justice Thomas simply bumped Donofrio's case to the full court, where there must at least 4 Justices must approve Donofrio's petition in order for the case to be able to proceed. Most likely Thomas did the usual referral to the full court so the case can be dismissed quickly and not dragged out with repeated renewed applications for writ of certoriari.

This is supported by the Reporter's Guide to Applications Pending Before the Supreme Court of the United States to which you linked. The Guide says:

"There are several possible scenarios for the disposition of an application:

* A Justice may simply deny without comment or explanation.
* If a Justice acts alone to deny an application, a petitioner may reapply to any other Justice of his or her choice, and theoretically can continue until a majority of the Court has denied the application. In practice, applications usually are referred to the full Court by the second Justice to avoid such a prolonged procedure."


Anyone who thinks Donofrio's case stands a snowball's chance in hell should recall that judges can't just issue rulings willynilly. Their judgments have to follow established procedure and be pertinent to the case at hand. Donofrio doesn't contest Obama's birth in Hawaii, but alleges that the Constitution doesn't allow people with dual citizenship to be president. Even if that's true (dubious at best), Obama hasn't had dual citizenship since he was 21 -- at I understand it, Donofrio isn't allegeding that Obama still has dual citizenship. Since no one with dual citizenship is about to be elected president, where's the case? Sure, the theoretical question is interesting, to constitutional lawyers and scholars at least, but in practical and legal terms there isn't any reason for the Supreme Court to revive Donofrio's case.

That's why we can be confident that the full court will decline Donofrio's renewed application on Friday.

It is indeed the case that Donofrio's supporting documentation was sent to an anthrax facility for a nine-day quarantine, possibly making the material unavailable for SCOTUS review.

I followed that link, Steve. That site's only reference to anthrax was, just as I said before, in the discussion of the Wrotkowski case, not the Donofrio case. It was Wrotkowski's brief that reportedly was sent for anthrax testing, not Donofrio's. Wrotkowski's case is similar to Donofrio's, though, and makes similar arguments.

Jordanes said...

It should also be pointed out that this is wrong:

"After that referral took place the full Court, and not Justice Thomas alone, distributed the application for an emergency stay for Conference of December 5, 2008. Let me reiterate the main point: DONOFRIO V. WELLS was distributed for conference of December 5, 2008 by the full Court after a prior referral of the application by Justice Thomas."

That's not how the Supreme Court does things. When a Justice refers a petition for writ of certoriari for conference, that Justice directs the Clerk to place the case on the distribution list to the full court. The Clerk then distributes copies of the case to the full court, that is, to each of the Justices. It wasn't the full court that distributed the case to itself, it was the Clerk who obeyed Justice Thomas' instruction to distribute the case to the full court.

In other words, nothing special happened with Donofrio's case. The only thing that happened was what usually happens when an application for petition of writ for certoriari is renewed after having been declined by the first Justice.

Jordanes said...

Whoops. It's Wrotnowski, not Wrotkowski.

c matt said...

As much as I'd like to see Obama disqualified, it doesn't seem like there will be much chance of this getting any traction.

Michael said...

As much as I'd like to see Obama disqualified, it doesn't seem like there will be much chance of this getting any traction.

Good, because it's a lie perpetuated by the emotionally and mentally disturbed.

Jordanes said...

And it's also an error perpetuated by people who aren't emotionally and mentally disturbed, but are just wrong.

Jordanes said...

Not surprisingly, the news today is reporting that the Supreme Court has declined Donofrio's renewed petition for writ of certoriari. In light of the incontrovertible evidence that Obama was born in Honolulu, there will be the same result for each of the dozen or so lawsuits challenging his eligibility that might end up at the Supreme Court. It's time to leave this sideshow and return our attention to working to blunt the force of the evil things Obama is about to do.

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Jordanes said...

Today Cort Wrotnowski's case was referred to the full court by Justice Scalia -- it's set for conference this Friday, Dec. 12.

But don't expect this to have any different outcome than Donofrio's appeal had.