Judge Roy Moore, the retired Chief Justice of the the Alabama Supreme Court, has filed an amicus brief with the Supreme Court supporting the emergency petition filed by Pennsylvania Republicans Mike Kelly and Sean Parnell. In it, he and his attorneys detail what they believe to be reason for the Supreme Court to move forward with the petition and hear the case.
Joining Moore as “Constitutional Attorneys” are John Eidsmoe, a retired Air Force Judge Advocate who serves as Professor of Constitutional Law for the Oak Brook College of Law and Government Policy, Matthew J. Clark, a former Staff Attorney for the Alabama Supreme Court, and Talmadge Butts, a recent graduate of the Thomas Goode Jones School of Law at Faulkner University where he was Articles Editor for the Faulkner Law Review.
Their argument is a fresh angle from a known argument that the state broke its own constitution by allowing legislation rather than constitutional amendment to change voting rules. Through Act 77, Pennsylvania prompted residents to vote well ahead of time through absentee ballots without the necessity of reason. This defies the explicit stance of the state’s constitution.
Moore and his colleagues approached this point from a slightly different angle, stating circumvention of their own constitution was in defiance of the U.S. Constitution. This is an important distinction because deciding whether or not to take the case does not necessarily hinge on its merits, which are substantial, but on whether this falls under the purview of the Supreme Court. By making it an issue at odds with the U.S. Constitution, the hope is to compel Justice Samuel Alito to accept the case.
Their brief summary states:
In the dissenting part of his statement, Pennsylvania Supreme Court Chief Justice Saylor noted that “laches and prejudice can never be permitted to amend the Constitution.” Kelly v. Commonwealth, No. 68 MAP 2020 (Pa. Nov. 28, 2020) (Saylor, C.J., concurring and dissenting). Justice Saylor’s position is supported by nearly a century of precedent and ultimately by the United States Constitution itself. Under the Supremacy Clause of the United States Constitution, Presidential elections are governed by the Electors Clause. That provision delegates the power of choosing electors to the legislatures of the several states, but under Supreme Court precedent, those legislatures are constrained by their own constitutions.
Thus, the Constitution required the Pennsylvania Supreme Court to adjudicate the case before it under the Electors Clause and Pennsylvania law inasmuch as it was consistent with the Pennsylvania Constitution. By disregarding those authorities and deciding the case on the basis of laches, the Pennsylvania Supreme Court elevated a state-law time bar above the Constitution itself. This violated the Supremacy Clause, which holds that the Constitution preempts the law of the states when the two conflict.
Additionally, the Constitution gives Congress the power to set a date for Presidential elections. Congress passed 3 U.S.C. § 1 pursuant to that power and
3 chose a specific date for election day. Historically, there is no reason to believe that Congress intended to preempt a state’s prerogative to allow absentee voting under the traditional rules that existed at the time, such as being unable to vote in person because of military service. However, allowing citizens to vote almost two months in advance of Election Day, for any reason or for no reason, is another matter altogether. Such a scheme is preempted by 3 U.S.C. § 1 and is unconstitutional under Article II, § 1, Clause 4 of the United States Constitution.
As Judge Roy Moore contends, this is not just an issue to be handled by the state. There are constitutional issues at play, which is why Justice Samuel Alito must accept the case and have it heard by the Supreme Court.
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