Authored by Alexander Macris via Contemplations On The Tree Of Woe blog,
The State Supreme Court has Violated the US Constitution
If you’ve been following the mainstream media, you’ve probably read that Trump intends to file a lawsuit in Pennsylvania to “stop counting votes.” Most likely, this has been presented as an outrageous evil, unjustifiable by any standards of common decency, and grossly unconstitutional. Is that really the case? Or is it more complex than that?
There will be a lawsuit, no doubt; and it will involve a lot of votes being thrown out. The plaintiff (Trump and/or the Republicans) will win, because Pennsylvania’s highest court has almost certainly violated the Constitution of the United States. That’s why, in the weeks ahead, the Supreme Court of the United States (SCOTUS) is going to rule in favor of Trump.
Let’s wind the clock back about a week to explain how we got here.
On October 28, 2020, in Republican Party of Pennsylvania vs. Boockvar, SCOTUS declined “a motion to expedite consideration of a petition for a writ of certiorari”. Let’s explain what that is, and what’s at stake, and why Trump is going to follow up.
- A writ of certiorari orders a lower court to deliver its record in a case so that the higher court may review it. In this case, SCOTUS was being asked to issue a writ against the Supreme Court of Pennsylvania, the highest court in that state.
- A petition [for a writ of certiorari] is a request by a litigant in the lower court, to a higher court, asking the higher court to order the lower court to issue the writ. In this case, the Supreme Court of Pennsylvania had decided against the Republican Party, so the Republican Party petitioned the Supreme Court of the US.
- Petitions can take a long time to resolve. A motion [to expedite consideration of a petition] is a request, by a litigant who has filed a petition, that the higher court accelerate its process of review. In this case, the Republican Party had filed the motion to expedite.
Translated into common English: In Boockvar, the Republican Party sent a request to the US Supreme Court to review a lower court case, and then asked them to hurry up about it. The US Supreme Court declined the motion to expedite, e.g. it refused to hurry up. But – and this is very important – it did not deny the petition for the writ of certiorari.
Thus the situation as it stands is that there is still a petition before the Supreme Court to review the situation in Pennsylvania, it just refused to do so before the election.
Now that raises the question: What’s the situation in Pennsylvania? Let’s work through that.
In 2019, the PA legislature passed a law called Act 77 that permitted all voters to cast their ballots by mail but (in Justice Alito’s words) “unambiguously required that all mailed ballots be received by 8 p.m. on election day.” The exact text is 2019 Pa. Leg. Serv. Act 2019-77, which stated: “No absentee ballot under this subsection shall be counted which is received in the office of the county board of elections later than eight o’clock P.M. on the day of the primary or election.” I agree with Justice Alito: That is unambiguous.
Act 77 also provided that if this portion of the law was invalidated, that much of the rest of Act 77, including its liberalization of mail-in voting, would also be void. The exact text is: “Sections 1, 2, 3, 3.2, 4, 5, 5.1, 6, 7, 8, 9 and 12 of this act are nonseverable. If any provision of this act or its application to any person or circumstance is held invalid, the remaining provisions or applications of this act are void.”
To again put this into common English, the Pennsylvania legislature passed a law that said mail-in ballots had to arrive by 8PM on election day to be counted, and then said that if the Court over-ruled that law, the entire law that permitted mail-in ballots was invalid.
In the face of this clear text, the Pennsylvania Supreme Court, by a vote of four to three, made the following decrees, summarized here by SCOTUS:
- Mailed ballots don’t need to be received by a election day. Instead, ballots can be accepted if they are postmarked on or before election day and are received within three days thereafter. Note that this is directly contravenes the text above.
- A mailed ballot with no postmark, or an illegible postmark, must be regarded as timely if it is received by that same date.
In doing so, PAs’ high court expressly acknowledged that “the statutory provision mandating receipt by election day was unambiguous” and conceded the law was “constitutional,” but still re-wrote the law because it thought it needed to do so in the face of a “natural disaster.” It justified its right to do so under the Free and Equal Elections Cause of the PA State Constitution.
Now, if you are a conservative, you are already angry. You despise this method of jurisprudence, which elite Harvard lawyers might call “living Constitutionalism,” and you believe that judges should enforce laws as written by lawmakers. You believe this case never should have gotten to SCOTUS because what the State Supreme Court did was egregious! .
However, if you’re of a more liberal inclination, you’re probably happy with this outcome. You’re happy because it’ll help Biden win, of course; but in general, you’re likely to be fine with a high court establishing a new right if you think it protects oppressed people from majoritarian tyranny.
If you’re a committed progressive, in fact, you likely will want to dismiss the entire case as just another defeat for outdated textualism in the face of living constitutionalism. It’s easy to frame this case as one of reactionary judges clinging to the letter of the law, while progressive justices overturn the letter of the law to reflect its true spirit. This is the view that CNN and MSNBC are promoting.
Had the Pennsylvania Supreme Court simply ruled that Act 77 was unconstitutional under PA’s Free and Equal Elections clause, this would have been a classic “textualism” vs. “living constitutionalism” case. But it’s not.
There is a strong likelihood that the State Supreme Court decision violates the Federal Constitution. Justice Alito writes: “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 legislature simply by claiming that a state constitutional provision gave the courts the authority to make whatever rules it thought appropriate for the conduct of a fair election.”
Justice Alito is referring to the following clauses of the US Constitution:
- Art. I, §4, cl. 1, which states “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”
- Art. II, §1, cl. 2, which states “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.”
Again, translating this into common English, the US Constitution grants state legislators the exclusive right to prescribe the time, place, and manner of holding elections, and to direct the appointment of the electors.
The Pennsylvania Supreme Court didn’t just say “Act 77 is unconstitutional.” It re-wrote Act 77 itself, by judicial fiat, creating new rules for time, place, and manner, of holding elections. In doing so, the State Supreme Court violated the US Federal Constitution.
And that’s the real case here. The US Supreme Court is going to rule that the State Supreme Court violated the US Constitution, the State Supreme Court’s ruling is going to be overturned, and the votes that arrived after 8 PM on election day will be discarded. On that basis, Trump will win Pennsylvania.
It is my sincere desire to provide readers of this site with the best unbiased information available, and a forum where it can be discussed openly, as our Founders intended. But it is not easy nor inexpensive to do so, especially when those who wish to prevent us from making the truth known, attack us without mercy on all fronts on a daily basis. So each time you visit the site, I would ask that you consider the value that you receive and have received from The Burning Platform and the community of which you are a vital part. I can't do it all alone, and I need your help and support to keep it alive. Please consider contributing an amount commensurate to the value that you receive from this site and community, or even by becoming a sustaining supporter through periodic contributions. [Burning Platform LLC - PO Box 1520 Kulpsville, PA 19443] or Paypal
-----------------------------------------------------
To donate via Stripe, click here.
-----------------------------------------------------
Use promo code ILMF2, and save up to 66% on all MyPillow purchases. (The Burning Platform benefits when you use this promo code.)
This is a great article on the fraud:
https://www.zerohedge.com/political/correia-fkery-afoot
Good article. But I hope the people committing voter fraud are arrested.
Arrested by whom? The country is overtaken. Courts are compromised. Everything is compromised. There is no rule of law anymore no matter how packed the courts.
Badda Bing!
I hope they are executed by citizen vigilantes. The phony cops and Sheriff in Philly refused to enforce a judge’s order, so citizens need to take matters into their own hands and come packing heat.
Unfortunately the vote counters have long ago mixed the later votes with the timely votes. making them indiscernible from each other, even after they were told to segregate them by order of the SCOTUS. It is a federal offense not to follow that order but they will ignore it because they have learned that you aren’t going to be prosecuted by the DOJ no matter what you do.
“To again put this into common English, the Pennsylvania legislature passed a law that said mail-in ballots had to arrive by 8PM on election day to be counted, and then said that if the Court over-ruled that law, the entire law that permitted mail-in ballots was invalid.”
This actually means that ALL mail-in ballots will be made invalid, not just the late-arriving ones.
I believe the Supreme shitheads of PA have fucked themselves but good. The legislature cannot let this abuse stand or their authority to be ignored and abused by the Judiciary. The SCOTUS might order all the Philly votes shit canned. Regardless the legislature should send the Trump electors while raising a big bird finger to the Dem machine.
Why is Trump fighting this alone? Where is the Republican Senate and House, Republican state houses and Republican Governors? Why are we setting on our hands hoping that “SOMEONE” will do something? Because that is exactly what we always do and have always done. Our Republican politicians do nothing because we make them do nothing. The left will burn their own damned cities down to send a message to their politicians that they expect action and therefore they get action. We wont even march in the street or stand on a corner. I was proud when all the grass roots rallies, parades and events started happening from our side, but now that we really need them where have the gone? God we are pathetic on the right.
standing..
R-D is over.
The call from Mark Levin for the state legislatures to appoint the electors they choose is the fastest surest answer to the fraud. Everyone tries to say these would be “faithless” electors, but if the Legislature of the state holds the authority to do this, (which since this is still a Representative Republic they do) then doing so is their duty. If they have a good faith belief there was fraud then this is how they remedy it. It isn’t a faithless elector if the legislature picks them in the belief that they are in fact following the will of the people. Following the vote tally you believe to be fraudulent would be the actual act of faithlessness.
Its a good fall back almost every battleground state has a Republican congress, but I dont think it will cone to it.
This author will get banned by Twitter for writing factual legal info.
Problem is that we are pretty sure the votes received after election day under the new PA Supreme Court rules have already been counted and were not segregated as Alito ruled.