A galactic clusterfark of an election crisis may yet be in America's future courtesy of SCOTUS, one far more divisive and explosive than the 2000 election. As we posted on last week, the Donofrio v. Wells case went to a conference of the full nine justices on Friday, December 5th to determine whether or not a request for an emergency stay of the national elections would be granted. The Court denied that request on Monday, December 8th and we thought that was the end of it. WRONG. Today, Justice Scalia referred to conference the case of
WROTNOWSKI v. BYSIEWICZ. The case will be reviewed in conference this Friday, December 12th. The Electoral College meets Monday, December 15th for the electors to cast their vote and officially make Obama the President Elect. This brief was also prepared by Leo Donofrio and per his blog, Natural Born Citizen, is believed to be procedurally cleaner than his brief rejected on Monday. Both ask for emergency stays of the national election.
If you're not the suspicious type, then there's nothing to see here. As one of Donofrio's commenter's pointed out;
"It’s well known Supreme Court procedure that when a previously-denied application is resubmitted to another Justice — as this one was — that Justice refers the application to the whole court. That’s because almost every single resubmitted application is brought by a crackpot, and is without merit.
So rather than allow the applicant to keep re-submitting to every single Justice until at least six justices have separately denied it, the second Justice refers it to the entire Court, which usually spends about one second “considering” it, and then denies it as a whole, thus putting the application out of its misery once and for all."
On the other hand, if the timing of this referral by Scalia strikes you as odd and suspicious, then you might conclude that this special order crisis appears to be actively and aggressively pushed forward by conservative Justices Thomas and Scalia. That is the other conclusion to be drawn from the proceedings and orders history of the two cases.
| No. 08A469 |
|
| Title: | | Cort Wrotnowski, Applicant | | v. | | Susan Bysiewicz, Connecticut Secretary of State |
|
| Docketed: |
|
| Lower Ct: | Supreme Court of Connecticut |
| ~~~Date~~~ | ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~ |
| Nov 25 2008 | Application (08A469) for stay and/or injunction, submitted to Justice Ginsburg. |
| Nov 26 2008 | Application (08A469) denied by Justice Ginsburg. |
| Nov 29 2008 | Application (08A469) refiled and submitted to Justice Scalia. |
| Dec 8 2008 | DISTRIBUTED for Conference of December 12, 2008. |
| Dec 8 2008 | Application (08A469) referred to the Court by Justice Scalia. |
| Dec 9 2008 | Supplemental brief of applicant Cort Wrotnowski filed. (Distributed) |
and the earlier Donofrio case:
| No. 08A407 |
|
| Title: | | Leo C. Donofrio, Applicant | | v. | | Nina Mitchell Wells, New Jersey Secretary of State |
|
| Docketed: |
|
| Lower Ct: | Supreme Court of New Jersey |
| Case Nos.: | (AM-0153-08T2 at the New Jersey Appellate Division without a docket number) |
| ~~~Date~~~ | ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~ |
| Nov 3 2008 | Application (08A407) for stay pending the filing and disposition of a petition for a writ of certiorari, submitted to Justice Souter. |
| Nov 6 2008 | Application (08A407) denied by Justice Souter. |
| Nov 14 2008 | Application (08A407) refiled and submitted to Justice Thomas. |
| Nov 19 2008 | DISTRIBUTED for Conference of December 5, 2008. |
| Nov 19 2008 | Application (08A407) referred to the Court by Justice Thomas. |
| Nov 26 2008 | Supplemental brief of applicant Leo C. Donofrio filed. (Distributed) |
| Dec 1 2008 | Letter from applicant dated November 22, 2008, received. |
| Dec 8 2008 | Application (08A407) denied by the Court. |
The fundamental legal argument in both cases is the same, to wit: Obama is not eligible to stand for the Presidency because his dual citizenship status at birth renders him not a "natural born citizen' per Article 2, Section 1 of the Constitution.
The difference between the two briefs is simply that the second had more preparation time and is considered procedurally cleaner and better argued by its author.
Timing wise, Scalia sends this to the full court for review on the Friday before the Electoral College is due to meet. Only four Justices are required to grant a hearing and there are four conservative votes on the court in Alito, Stevens, Thomas and Scalia. It is entirely possible that Friday afternoon, the Supreme Court could issue an emergency stay of the Electoral College pending oral arguments on this case. Donofrio will accompany Cort Wrotnowski to Washington D.C. tomorrow where both will be available for comment at 11:00 AM on the steps of the Supreme Court.
We may not have missed the political apocalypse after all.
