Amicus Curiae Brief — Mike Kelly, United States Congressman, et al., Applicants v. Pennsylvania, et al.

No. 20A98

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In the Supreme Court of the United States

__________________________________________________________________

MIKE KELLY, U.S. Congressman, et al.,

Applicants,

v.

COMMONWEALTH OF PENNSYLVANIA, et al.,

Respondents.

__________________________________________________________________

To the Honorable Samuel A. Alito, Jr.,

Associate Justice of the United States Supreme Court and

Circuit Justice for the Third Circuit

__________________________________________________________________

MOTION FOR LEAVE TO FILE BRIEF AS AMICI CURIAE

AND BRIEF FOR CONSTITUTIONAL ATTORNEYS AS AMICI CURIAE

IN SUPPORT OF APPLICANTS/PETITIONERS

__________________________________________________________________

ROY S. MOORE

JOHN A. EIDSMOE

MATTHEW J. CLARK*

*Counsel of Record

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. Counsel for the Petitioners has

consented to the filing of this motion. Counsel for the Respondents has not yet

responded to our request for consent.

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

Alabama Supreme Court (Ret.), John A. Eidsmoe, Lt. Col., 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 several reasons. First, as the

Chief Justice of the Pennsylvania Supreme Court noted, “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) (citations

and quotation marks omitted). Although he did not thoroughly discuss that point,

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Amici Curiae believe he was correct because the Supremacy Clause does not allow

state judges to use a state-law time bar to overcome a constitutional command. This

brief discusses this point in detail.

Additionally, 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 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.

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 8, 2020,

/s/ Matthew J. Clark

MATTHEW J. CLARK

Counsel of Record

ROY S. MOORE

JOHN A. EIDSMOE

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 .................................................................................................................. 3

I.

The Supremacy Clause Forbids Laches from Barring the Constitutional

Claim in This Case ................................................................................................ 3

II.

The United States Constitution and a Federal Statute Established a

Fixed Day for Presidential Elections .................................................................... 5

CONCLUSION............................................................................................................... 8

i

TABLE OF AUTHORITIES

Cases

Pages

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

2020).......................................................................................................................... 7

County of Oneida, N.Y., v. Oneida Indian Nation of N.Y. State, 470

U.S. 226 (1985) ......................................................................................................... 4

Kelly v. Commonwealth, No. 68 MAP 2020 (Pa. Nov. 28, 2020) ............................... 2-3

McPherson v. Blacker, 146 U.S. 1 (1892) ...................................................................... 5

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

Nov. 25, 2020) ........................................................................................................... 7

Smiley v. Holm, 285 U.S. 355 (1932) ............................................................................ 5

Sprague v. Casey, 550 A.2d 184 (Pa. 1988) ................................................................ 3-5

Wilson v. Philadelphia Sch. Dist., 195 A. 90 (Pa. 1937)............................................... 4

Constitutions and Statutes

3 U.S.C. § 1........................................................................................................... 2-3, 6-7

U.S. Const., art. II, § 1, cl. 2 ...................................................................................... 2, 5

U.S. Const., art. II, § 1, cl. 4 .......................................................................................... 5

U.S. Const., art. VI, cl. 2 ................................................................................................ 4

Other Authorities

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

(last visited Dec. 8, 2020) ......................................................................................... 6

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) ................................................................................................. 6

ii

IDENTITY AND INTEREST OF AMICI CURIAE 1

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.

1 Applicants have consented to the filing of this brief, but Amici Curiae have not received an answer

from the Respondents as to whether they 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.

1

Amici are concerned that Pennsylvania's hastily-contrived scheme for

advance voting violates the Pennsylvania Constitution, the United States

Constitution, 3 U.S.C. § 1, and the American system of fair and orderly elections.

SUMMARY OF THE ARGUMENT

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

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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.

ARGUMENT

I.

The Supremacy Clause Forbids

Constitutional Claim in This Case

Laches

from

Barring

the

The Pennsylvania Supreme Court barred Petitioners’ claim on the basis of

laches. As an initial matter, it defies common sense and the principles of equity to

hold that laches bars a constitutional challenge to a statute that is only one year

old. But more fundamentally, as the Chief Justice of the Pennsylvania Supreme

Court noted, “‘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) (quoting Sprague v. Casey, 550 A.2d 184,

188 (Pa. 1988)). In Sprague, the Pennsylvania Supreme Court explained the basis

for that rule as follows:

“We have not been able to discover any case which holds that

laches will bar an attack upon the constitutionality of a statute as to

its future operation, especially where the legislation involves a

fundamental question going to the very roots of our representative

form of government and concerning one of its highest prerogatives. To

so hold would establish a dangerous precedent, the evil effect of which

might reach far beyond present expectations.”

3

Sprague, 550 A.2d at 188-89 (quoting Wilson v. Philadelphia Sch. Dist., 195 A. 90,

99 (Pa. 1937).

This statement from Sprague appears to be correct. Article VI, cl. 2 of the

Constitution says, “This Constitution ... shall be the Supreme Law of the Land; and

the Judges in every State shall be bound thereby, any Thing in the Constitution or

Laws of any State to the Contrary notwithstanding.” Therefore, the justices of the

Pennsylvania Supreme Court were bound to apply the Constitution itself instead of

the state law of laches when the two conflicted. Because they failed to do so, they

violated the Supremacy Clause of the Constitution.

Just as the Pennsylvania Supreme Court in Sprague could not find any

decision holding that laches can bar a constitutional claim, neither can Amici

Curiae find any decision from this Court holding that laches may bar a

constitutional claim. The Court has, however, held that the Supremacy Clause does

not allow state-law time bars like laches to bar claims that are regulated by federal

law. See County of Oneida, N.Y., v. Oneida Indian Nation of N.Y. State, 470 U.S.

226, 240 n.13 (1985) (“Under the Supremacy Clause, state-law time bars, e.g.,

adverse possession and laches, do not apply of their own force to Indian land title

claims”) (emphasis added). Although County of Oneida dealt specifically with Indian

land title claims, the underlying principle was that the application of state law

could “not be inconsistent with underlying federal policy.” Id. at 240.

In this case, as the Pennsylvania Supreme Court noted in Sprague, applying

laches would be inconsistent with the underlying federal policy because “the

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legislation involves a fundamental question going to the very roots of our

representative form of government and concerning one of its highest prerogatives.”

Sprague, 550 A.2d at 188-89. The United States Constitution itself delegates to the

legislatures of the several States the manner of choosing electors for the Electoral

College. U.S. Const., art. II, § 1, cl. 2. In exercising that power, the Pennsylvania

legislature is bound by its own constitution in how it executes that function. See

McPherson v. Blacker, 146 U.S. 1, 25 (1892) (“What is forbidden or required to be

done by a state is forbidden or required of the legislative power under the state

constitutions as they exist”); see also Smiley v. Holm, 285 U.S. 355, 369 (1932)

(citing McPherson and holding that the Constitution’s delegation of election power

to the states does not “justify disregard of established practice in the states”).

Therefore, by invoking the state law of laches to bar a claim arising under the

Constitution’s Electors Clause, the Pennsylvania Supreme Court violated the

Supremacy Clause. 2

II.

The United States Constitution and a Federal Statute Established a

Fixed Day for Presidential Elections

The United States Constitution, Article II, Section 1 provides in part that:

“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. Although Article II also provides that

This position is not inconsistent with the position taken by the State of Texas in Texas v.

Pennsylvania, No. 22O155. A central theme in that case is that officials of the executive branch in

Pennsylvania, Georgia, Wisconsin, and Michigan failed to follow legislative commands as required by

the Electors Clause. In this case, Amici Curiae simply notes, as this Court’s precedents have noted

since 1892, that even the legislatures of the several States are bound by their own constitutions.

2

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the States set the manner of choosing electors, 3 by this provision the people of the

United States have delegated the power to set the day of the election to Congress.

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 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.

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. 4 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

3 U.S. Const., art. II, § 1, cl. 2.

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).

4

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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. 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). 5

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.

5

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CONCLUSION

The Pennsylvania Supreme Court violated the Supremacy Clause when it

elevated a state-law time bar over the Constitution of the United States. It also

refused to acknowledge that the Constitution itself and a federal statute dictate the

date on which the Presidential election must occur. Consequently, in addition to the

reasons raised by the Applicants themselves, the judgment of the Pennsylvania

Supreme Court is due to be reversed.

Respectfully submitted December 8, 2020,

/s/ Matthew J. Clark

MATTHEW J. CLARK*

*Counsel of Record

ROY. S. MOORE

JOHN A. EIDSMOE

TALMADGE BUTTS

CONSTITUTIONAL ATTORNEYS

P.O. Box 179

Montgomery, Alabama 36101

256-510-1828

constitutionalattorneys@gmail.com

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.

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