Today we should hear whether SCOTUS will hear Bailey, et al v U.S., et al, dkt no.16-1464, the only action to seek: (1) independent investigation of the 2016 election and, (2) if Russia illegally affected the results, the election be declared void. Disclosure: I am counsel of record for Petitioners in Bailey.
A matter addressed in the Petition is standing, a “party’s right to make a legal claim or seek judicial enforcement of a duty or right...” (Petition at pp. 21-24; para. 62-67.) If A’s car t-bones B’s car in an intersection and B is injured, B has standing to sue A. C, who, from 200 feet away, witnessed the collision, lacks standing.
Comments of some bloggers imply only former Secretary of State Clinton or the Democratic Party has standing to sue over the election. (Of course, ANY case filed with ANY Court would be ridiculed by these entities )
Many do not want either party to speak “for” us, let alone at our exclusion. The Framers were opposed to political parties. Hamilton wrote: “Nothing could be more ill-judged than that intolerant spirit which has, at all times, characterized political parties.” (The Federalist, No. 1; Petition, pp. 17-18; para 47(g).) Madison described how history has “divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good” (The Federalist No. 10; Petition, p. 18, para 47 (h).)
Our Federal courts recognize voters’ standing to sue to protect the right to vote. Voters’ interests are “independent” of the interests of candidates, and failure of a candidate to pursue relief is not material to determining whether voters for that candidate have “standing” to contest how an election was conducted. Tarpley v. Salerno, 803 F.2d 57, 59-60 (2nd Cir. 1986). Our Petitioners have standing to challenge the lawfulness of the election. Diamond v. Charles, 476 U.S. 54, 66-67, (1986). (Petition at p. 23; para. 63-64.)
Here, the Petitioners have a right to relief even if they did not vote for the losing candidate. The right to participate in the choice of representatives includes the right to cast a ballot and to have it counted at the general election, whether for the successful candidate or not.“The Constitution of the United States protects the right of all qualified citizens to vote, in state as well as in federal elections. A consistent line of decisions by this Court in cases involving attempts to deny or restrict the right of suffrage has made this indelibly clear. It has been repeatedly recognized that all qualified voters have a constitutionally recognized protected right to vote. Reynolds v. Sims, 377 U.S.533, 554, 84 S.Ct. 1362, 1377 (1964)...” (Petition at 23; para 67.)
Petitioners include voters for Clinton from Pennsylvania, Florida, Ohio, Wisconsin and Michigan: “swing” States where a relatively few “flipped” votes shifted the Electoral College to the Loser of the popular vote. (Petition, pp. 21-22; para. 62(a)-(e).) However, where “equity demands that the court proceed in their absence” a case can proceed without necessary parties Toney v. White, 476 F.2d 203, 207 (5th Cir.), vacated in part, aff’d in part, Toney v. White, 488 F.2d 310 (5th Cir. 1973).
“Standing” to bring this Petition by Bailey and others is clear. The petitioners have a direct “stake” as voters and citizens of the United States and thus have standing to seek the relief sought. As of about ten minutes ago, the docket of 16-1464 remained unchanged. We should keep our fingers crossed and hope the case proceeds.