Amicus Curiae Brief — Donald J. Trump for President, Inc., Petitioner v. Veronica Degraffenreid, Acting Secretary of Pennsylvania, et al.

No. 20-845

__________________________________________________________________

In the Supreme Court of the United States

__________________________________________________________________

DONALD J. TRUMP FOR PRESIDENT, INC.,

Petitioner,

v.

KATHY BOOCKVAR, SECRETARY OF THE COMMONWEALTH

OF PENNSYLVANIA, et al.,

Respondents.

__________________________________________________________________

On Petition for Writs of Certiorari to the Supreme Court of Pennsylvania

__________________________________________________________________

MOTION FOR LEAVE TO FILE BRIEF AS AMICI CURIAE

AND BRIEF FOR CONSTITUTIONAL ATTORNEYS AS AMICI CURIAE

IN SUPPORT OF PETITIONER'S PETITION FOR WRIT OF CERTIORARI

__________________________________________________________________

ROY S. MOORE

JOHN A. EIDSMOE*

*Counsel of Record

MATTHEW J. CLARK

TALMADGE BUTTS

CONSTITUTIONAL ATTORNEYS

P.O. Box 179

Montgomery, AL 36101

256-510-1828

constitutionalattorneys@gmail.com

Counsel for Amici Curiae

MOTION FOR LEAVE TO FILE BRIEF AS AMICI CURIAE

Pursuant to Supreme Court Rule 37.2(b), the constitutional attorneys

(hereinafter “Constitutional Attorneys”) listed below respectfully move for leave to

file the accompanying brief as amici curiae. Because of the emergency nature of this

action, Amici have been unable to secure the consent of the parties, but Amici have

notified the parties of our intent to file this brief and have requested consent.

Petitioner has consented, but Respondent has not yet responded.

Amici Curiae Constitutional Attorneys are Roy. S. Moore, Chief Justice of the

Alabama Supreme Court (Ret.), John A. Eidsmoe, Lt. Colonel, USAF (Ret.),

Matthew J. Clark, and Talmadge Butts. The Constitutional Attorneys have an

interest in this case because it is especially important to uphold the rule of law

when selecting the President and Vice President of the United States. “‘In the

context of a Presidential election, state-imposed restrictions implicate a uniquely

important national interest. For the President and the Vice President of the United

States are the only elected officials who represent all the voters in the Nation.’”

Bush v. Gore, 531 U.S. 98, 112 (2000) (Rehnquist, C.J., joined by Scalia and

Thomas, JJ., concurring) (quoting Anderson v. Celebrezze, 460 U.S. 780, 794-95

(1983) (footnote and alteration omitted).

This brief would be helpful to the Court for two reasons. First, because the

Constitution requires Congress to set a specific date for voting in a Presidential

election, and because Congress has set that specific date, Respondents’ attempts to

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allow mail-in voting for a long period of time prior to election day violates both

Article II, § 1, cl. 4 of the Constitution and 3 U.S.C. § 1.

Second, this brief would also be helpful because of its brevity. Amici Curiae

understand that the Court must decide this matter quickly, so we have limited our

discussion to points that would be helpful to the Court that have not already been

raised by the parties without burdening the Court with excessive details.

Pursuant to this Court’s order of April 15, 2020, Amici Curiae are hereby

filing a single paper copy of this motion on 8½ x 11 inch paper under Rule 33.2.

WHEREFORE, premises considered, Amici Curiae respectfully request leave to

file the attached brief of Amici Curiae.

Respectfully submitted December 23, 2020,

/s/ John A. Eidsmoe

JOHN A. EIDSMOE

Counsel of Record

ROY S. MOORE

MATTHEW J. CLARK

TALMADGE BUTTS

CONSTITUTIONAL ATTORNEYS

P.O. Box 179

Montgomery, AL 36101

256-510-1828

constitutionalattorneys@gmail.com

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TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................... ii

IDENTITY AND INTEREST OF AMICI CURIAE ...................................................... 1

SUMMARY OF THE ARGUMENT .............................................................................. 2

ARGUMENT ....................................................................................................................

I.

The United States Constitution and a Federal Statute Established a

Fixed Day for Presidential Elections .................................................................... 3

II.

The Power Delegated by the Constitution to State Legislatures to Set

the Manner of Choosing Electors May Be Neither Re-delegated nor

Usurped........................................................................................................6

III. The Law Favors Deciding Cases on Their Merits......................................9

CONCLUSION...................................................................................................11

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TABLE OF AUTHORITIES

Cases

Pages

Berean Baptist Church v. Cooper, No. 4:20-cv-81-D (E.D.N.C. May 16,

2020).......................................................................................................................... 9

J.W, Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928) ........................ 8

Kelly v. Commonwealth, No. 68 MAP 2020 (Pa. Nov. 28, 2020) .................... ....5, 6, 10

Mistretta v. United States, 48 U.S. 361 (1989)........................................7

Panama Refining Co. v. Ryan, 293 U.S. 388 (1935) ..................................................... 8

Pekarsky v. Galaxiworld.com Ltd., 249 F.3d 167, 174 (2d Cir. 2001)........................ 10

Roman Catholic Diocese of Brooklyn, N.Y. v. Cuomo, No. 20A87 (U.S.

Nov. 25, 2020) ........................................................................................................... 9

Texas, et al., v. Pennsylvania, et al., No. 22O155 (U.S. Dec. 11, 2020)................ 10, 11

United States v. Gant, 268 F. Supp. 2d 29, 32 (D.D.C. 2003) .................................... 10

Constitutions and Statutes

3 U.S.C. § 1................................................................................................................. 2, 4

U.S. Const., art. II, § 1, cl. 2 ...................................................................................... 2, 3

U.S. Const., art. II, § 1, cl. 4 ...................................................................................... 2, 3

Other Authorities

Absentee Voting, U-S-History.com, https://u-s-history.com/pages/h3313.html

(last visited Dec. 8, 2020) ..................................................................................... 4, 5

Moore, James Wm., Moore's Federal Practice § 55.02 (3rd ed. 2012)....,........ 10

Voting by Mail and Absentee Voting, MIT Election Data & Science Lab,

https://electionlab.mit.edu/research/voting-mail-and-absentee-voting (last

visited Dec. 8, 2020) ................................................................................................. 4

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IDENTITY AND INTEREST OF AMICI CURIAE1

Amici Curiae are constitutional attorneys who believe the Constitution

should be interpreted strictly as intended by its Frames. They include:



Roy S. Moore, a West Point graduate and Vietnam veteran who has served as

an Etowah County (AL) Circuit Judge, has twice been elected Chief Justice of

the Alabama Supreme Court, and is a member of the Bar of this Court;



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,

has taught constitutional law for the O.W. Coburn School of Law at Oral

Roberts University and the Thomas Goode Jones School of Law at Faulkner

University, and is a member of the Bar of this Court;



Matthew J. Clark, a graduate of Liberty University School of Law, a former

Staff Attorney for the Alabama Supreme Court, a guest teacher of

Constitutional Law at Faulkner University, and a member of the Bar of this

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, and is licensed to practice in Alabama.

Because of the emergency nature of this action, amici have been unable to secure the consent of the

parties, but amici have notified the parties of our intent to submit this brief and have requested

consent. Pursuant to Rule 37.6, no party or party’s counsel authored this brief in whole or in part, or

contributed money that was intended to fund its preparation or submission; and no person other

than the amici curiae, their members, or their counsel, contributed money that was intended to fund

the preparation or submission of this brief.

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Amici are concerned that the executive branch officials in the Respondent

state have violated the United States Constitution, 3 U.S.C. § 1, and the American

system of fair and orderly elections.

SUMMARY OF THE ARGUMENT

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 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.

Furthermore, the Constitution Article II Section 1 delegates to state

legislatures the power to set the manner of choosing electors. State legislatures

may not delegate that power to executive officials, and executive officials may not

usurp that power.

This case is of nation-wide importance, because the electors chosen by

Pennsylvania and several other contested states could decide the outcome of the

2020 election, the policies of the executive branch, and the course of the nation for

the next four years and for many years beyond that. Every state in the nation, in

fact every citizen in the nation is affected by this case. At the present time, there

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are many unanswered questions about who can do what during elections, and these

questions will continue to plague elections unless and until they are resolved by this

Court.

Finally, the law strongly favors deciding cases on their merits. Supporters of

President Trump have tried in many cases in many courts in many states to present

their evidence of error, irregularity, illegality, and fraud, and been met with

dismissals based on laches, standing, and other procedural matters.

Donald J.

Trump for President, Inc., and their many supporters are entitled to their day in

court. Because January 20, 2021 is fast approaching, this may be the Court's last

opportunity to give them their day in court.

ARGUMENT

I.

The United States Constitution and a Federal Statute Established a

Fixed Day for Presidential Elections

The United States Constitution, Article II, Section 1 reserves to the state

legislatures the plenary power to set the manner of choosing electors for President

and Vice-President.

However, Article II, Section 1 also specifically delegates to Congress the

power to set the day of the Presidential election: “The Congress may determine the

Time of chusing the Electors, and the Day on which they shall give their Votes;

which Day shall be the same throughout the United States.” U.S. Const., art. II, § 1,

cl. 4.

Pursuant to Article II Section 1, Congress has enacted 3 U.S.C. § 1, which

requires that the “electors of President and Vice President shall be appointed, in

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each State, on the Tuesday next after the first Monday in November, in every fourth

year succeeding every election of a President and Vice President.”

From this constitutional provision, it is clear that the Constitution

contemplates a set nation-wide time for choosing Electors, that is, for voting for

President and Vice-President. From 3 U.S.C. § 1, it is clear that Congress intended

to fix a single day for this election to take place, and that this day should be uniform

throughout the United States. It was neither the intent of the Framers nor the

intent of Congress that state executive officials, acting without legislative authority,

may implement advance voting schemes that begin months in advance of the

election date established by Congress, drag out for days past the election, vary

widely from one state to another, and sometimes even vary from county to county

within a state.

This does not necessarily prohibit the use of absentee ballots when voters

have reasons for voting absentee such as travel or illness. Absentee voting began in

the 1860s when Union soldiers were given the opportunity to vote in home district

elections. At first, absentee voting was limited to those in active military service,

but in the latter half of the 1800s and early 1900s, the opportunity to vote absentee

was extended to others who had valid reasons for being away from home on election

day.2 Thus, when 3 U.S.C. § 1 was adopted in 1948, Congress clearly understood

that a few people needed to vote absentee, and there is no reason to think that by

Absentee Voting, U-S-History.com, https://u-s-history.com/pages/h3313.html (last visited Dec. 8,

2020); see also Voting by Mail and Absentee Voting, MIT Election Data & Science Lab,

https://electionlab.mit.edu/research/voting-mail-and-absentee-voting (last visited Dec. 8, 2020)

(same).

2

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setting a uniform day for national elections, Congress intended to abolish absentee

voting.

However, Congress certainly did not intend to open the floodgates to allow

anyone to vote weeks or months in advance of the federally-established election

date, whether in person or by mail or by ballot harvesting or other means which

might vary dramatically from one state to another.

The Framers of the

Constitution in 1787 and those who adopted the Twelfth and Twentieth

Amendments, as well as the Congress of 1948 that adopted 3 U.S.C. § 1, clearly

contemplated a system of uniform dates for holding the Presidential election,

assembling the Electors in their respective States to cast their votes, and opening

and counting the ballots of the Electors.

Pennsylvania’s scheme of early voting, adopted by executive fiat rather than

by an act of the Legislature or an amendment to the State Constitution, clearly

violates both the spirit and the letter of the United States Constitution and 3 U.S.C.

§ 1.

In Kelly v. Commonwealth of Pennsylvania, No. 68 MAP 2020 (Pa. Nov. 28,

2020), the trial court held that this executive usurpation of legislative power

violated both Pennsylvania law and the Pennsylvania Constitution, but the

Pennsylvania Supreme Court reversed on the basis of laches, without in any way

disputing the trial judge's legal and constitutional analysis. But as Pennsylvania

Supreme Court Chief Justice Saylor said in his dissent, "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).

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Amici

observe that it is anomalous to apply laches to a statute that is only about a year

old, and to a voting system that was later implemented by executive usurpation,

especially when the harm occurred only a few weeks ago and a pre-election

challenge to the voting scheme likely would have been dismissed for lack of

ripeness.

Similar usurpations have simultaneously occurred in other states, namely

Georgia, Michigan, Wisconsin, Arizona, and Nevada, giving rise to the inference

that a well-coordinated plan existed to usurp the powers of the legislatures of these

states and impose by executive fiat a massive system of advance voting that was at

the very least vulnerable to fraud and manipulation for the purpose of altering the

outcome of the election in these states and, as a result, for the nation.

A voting system which allows voting far in advance of the day set by

Congress necessarily restricts knowledge of the character, reputation, and

questionable acts of a candidate which are only discovered and/or revealed during

the closing days of the campaign.

In this particular election the close relationship between China, Joe Biden,

and his son Hunter was revealed by credible evidence only days before the election

date, and after hundreds of thousands of votes had been cast by mail-in ballots.

Such a relationship would be a threat to national security and of great concern to

many voters who had already voted by mail-in ballots.

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Voting before a campaign is completed is similar to a verdict given in court by

a jury before all the evidence has been presented. Further, mail-in ballots without

signature or identity verification is inherently conducive to fraud.

II.

The Power Delegated by the Constitution to State Legislatures to Set

the Manner of Choosing Electors May Be Neither Re-delegated nor

Usurped.

The common maxim, delegata potestas non potest delegari means that powers

which have been delegated to one branch of government cannot be re-delegated to

another branch. This is especially true when the United States Constitution has

specifically delegated a power to state legislatures, as in this case the plenary power

to direct the manner of choosing electors. This means the people of the United

States have determined that this power should rest with the state legislatures, and

state legislatures may not thwart that determination by re-delegating that power to

another branch of government. It also helps to establish clear lines of authority and

accountability, preventing those to whom power has been delegated from "passing

the buck" by re-delegating the power to others.

The courts have interpreted the doctrine to mean that although the

legislature may not delegate legislative authority, it may delegate "rule-making

authority," giving executive agencies the authority to adopt rules that interpret the

laws adopted by the legislature. But as the Court recognized in Mistretta v. United

States, 488 U.S. 361 (1989) and other cases, the fine line between legislative

authority and rule-making authority is sometimes difficult to draw. Generally, the

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courts will uphold a legislature's delegation as "rule-making authority" if the

legislature has given the executive agency reasonably clear guidelines or criteria by

which to make the rules, which rules are expected to be interpretations of the law

the legislature has adopted. This is the "intelligible principle" rule articulated in

J.W. Hampton, Jr., & Co. v. United States, 276 US. 394, 409 (1928); see also,

Panama Refining Co. v. Ryan, 293 U.S. 388 (1935), in which the Court struck down

regulations on petroleum shipping because the statute authorizing such regulations

did not specify circumstances or conditions that would allow regulation, criteria to

guide the President's course of regulation, or required findings enabling the

President to regulate petroleum transportation. Rather, the Court said, the statute

gave "the President an unlimited authority to determine the policy and to lay down

the prohibition, or not to lay it down, as he may see fit." Id. at 415. Since that time,

the courts have usually upheld delegations, not because they rejected the

nondelegation doctrine, but because they found that in each of these cases the

doctrine was not violated.

State courts have varied in the ways they have applied the nondelegation

doctrine. But in this case state variations do not matter, because this delegation of

power to the state legislatures came not from state constitutions but from the

United States Constitution.

The Pennsylvania Legislature had no authority to delegate to executive

officials the authority to enact the voting scheme they implemented in 2020. But in

fact the Legislature did not delegate this authority. Rather, Respondents usurped

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this authority with no semblance of authority from the U.S. Constitution, the U.S.

Congress, the Pennsylvania Constitution, or the Pennsylvania Legislature. This is

a constitutional violation of equal if not greater magnitude. Such drastic changes

should never have been made by hasty executive fiat. The changes this usurpation

has made in our electoral system are nothing short of monumental, and because

they have been made without proper safeguards, they have resulted in mass

confusion, fraud, ballots lost, fake ballots found, ballots not counted, ballots counted

multiple times, and much more, as Petitioners have clearly substantiated.

As a federal district court in North Carolina held in Berean Baptist Church

v. Cooper, “There is no pandemic exception to the Constitution of the United

States.” Berean Baptist Church v. Cooper, No. 4:20-cv-81-D, slip op. at 2 (E.D.N.C.

May 16, 2020). And as Justice Gorsuch said recently, “Even if the Constitution has

taken a holiday during this pandemic, it cannot become a sabbatical.” Roman

Catholic Diocese of Brooklyn, N.Y. v. Cuomo, No. 20A87, slip op. at 10 (U.S. Nov. 25,

2020) (Gorsuch, J., concurring). 3

III.

The Law Favors Deciding Cases on Their Merits.

Although procedure is important, it is not an end in itself. The purpose of

procedural due process is to protect substantive due process.

The purpose of

procedural rules is to ensure a just result, a result in accord with the law and the

facts. For this reason, the law favors deciding cases on their merits.

Amici Curiae do not necessarily believe that the Constitution can take a holiday during a

pandemic, but as the language of his statement indicates, Justice Gorsuch may not believe so either.

Amici simply observe that the COVID-19 pandemic does not justify an unconstitutional statute,

especially since it was passed in 2019 before the pandemic hit the United States.

3

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Moore's Federal Practice § 55.02 states, "...there is a strong desire to decide

cases on the merits rather than on procedural violations. For this reason, most

courts traditionally disfavor the entry of a default judgment. This is a reflection of

the oft-stated preference for resolving disputes on the merits." 4

As the Second Circuit stated in Pecarsky v. Galaxiworld.com Ltd., 249 F.3d

167, 174 (2d Cir. 2001), "...default judgments are disfavored. A clear preference

exists for cases to be adjudicated on the merits." Likewise, the District Court for

the District of Columbia stated, "Because courts strongly favor resolution of

disputes on their merits, ...default judgments are not favored by modern courts."

United States v. Gant, 268 F.Supp. 2d 29, 32 (D.D.C. 2003).

As of this writing, supporters of President Trump have filed in excess of fifty

lawsuits in various courts seeking to present the evidence of fraud and error and

asking the courts to examine the law and the evidence and issue judgment on the

merits. In all but a very few of these cases, their cases were denied or dismissed for

a variety of procedural reasons. A notable exception was in Kelly v. Commonwealth

of Pennsylvania, No. 20A98 (U.S. Dec. 3, 2020), in which the trial court examined

the law and the evidence and held that this executive usurpation of legislative

power violated both Pennsylvania law and the Pennsylvania Constitution.

However, the Pennsylvania Supreme Court reversed on the basis of laches, without

in any way disputing the trial judge's legal and constitutional analysis.

4

10 James Wm. Moore et al., Moore's Federal Practice § 55.02 (3rd ed. 2012).

10

In October 2020, this Court by a 4-4 vote rejected a Republican request for a

stay on a Pennsylvania Supreme Court decision that would allow ballots to be

counted up to three days after Election Day, relying in part on a subsequentlybroken promise by Pennsylvania election officials that they would count advance

ballots separately from those cast at the polls on election day. Then, on December

11, 2020, in Texas, et al. v. Pennsylvania, et. al., this Court with two dissenting

votes declined to hear an original-jurisdiction lawsuit brought by the State of Texas

challenging the election procedures of Pennsylvania, Wisconsin, Michigan, and

Georgia, because Texas allegedly failed to show it was affected by election

procedures in those states.

And now, as the clock is ticking toward January 6 and January 20, the

Donald J. Trump for President Campaign has brought this petition to this Court.

Throughout all of these lawsuits, the basic plea has been the same: Please examine

the evidence and the statutes and render a just decision on the merits.

Because of the urgency of the hour and the vital issues at stake, and because

of the procedural history of all of these cases, Amici urge this Court to resolve any

procedural issues in the light most favorable to Petitioner, to grant this Petition for

Certiorari, and to promptly decide this case on its merits.

CONCLUSION

The Constitution itself and a federal statute dictate the date on which the

Presidential election must occur, and the Constitution also delegates to the state

legislatures, not executive officials, the power to determine the manner in which

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these elections will take place. Consequently, the People who voted legally have

been deprived of their chance to select the President and Vice President of the

United States.

One way to disenfranchise a person is to deny him/her the right to vote. But

another way, equally serious and even more sinister, is to cancel out that person's

vote by an illegal vote. And that is exactly what has happened here.

This Court is the only court that can remedy that injustice, and it should do

so by granting this Petition for Writ of Certiorari and ruling in favor of Petitioners.

Respectfully submitted December 23, 2020,

/s/ John A. Eidsmoe

JOHN A. EIDSMOE*

*Counsel of Record

ROY. S. MOORE

MATTHEW J. CLARK

TALMADGE BUTTS

CONSTITUTIONAL ATTORNEYS

P.O. Box 179

Montgomery, Alabama 36101

256-510-1828

constitutionalattorneys@gmail.com

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