Barnett v. Obama: Important Discovery Is Available Now According To Judge Carter’s Order of Sept. 17, 2009.
While reading Judge Carter’s limited discovery order, the following passage caught my eye:
In this case, Defendants have alleged that the Court lacks subject matter jurisdiction for various reasons, including that the case presents a non-justiciable political question that is properly addressed by the legislative branch of government, not the judicial branch. Defendants’ Motion to Dismiss at 11.
As you know, Judge Carter agreed to stay discovery until the motion to dismiss was resolved regarding whether the district court has subject matter jurisdiction.
With Judge Carter’s reasoning guiding my analysis, I carefully examined the DOJ motion to dismiss paying special attention to the arguments made starting on page 11. When I got to page 13, I found something interesting:
Under 3 U.S.C. § 15, Congress is directed to be in session on the appropriate date to count the electoral votes for President, with the President of the Senate presiding. The statute further directs that the electoral votes be counted, and then the results be presented to the President of the Senate, who shall then “announce the state of the vote.” The statute then provides a mechanism for objections to be registered and resolved in the following language:
“[e]very objection shall be made in writing,and shall state clearly and concisely, and without argument, the ground thereof, and shall be signed by at least one Senator and one Member of the House of Representatives before the same shall be received. When all objections so made . . . shall have been received and read, the Senate shall thereupon withdraw, and such objections shall be submitted to the Senate for its decision; and the Speaker of the House of Representatives shall, in like manner, submit such objections to the House of Representatives for its decision.”
That’s an interesting quote… interesting for what the DOJ left out.
They conveniently cut the statute off when they bring it into the brief. The uncensored passage from 3 U.S.C. § 15 states:
Upon such reading of any such certificate or paper, the President of the Senate shall call for objections, if any. Every objection shall be made in writing, and shall state clearly and concisely, and without argument, the ground thereof…
The DOJ clipped the statute so as to leave out the part which places a burden on the Vice President, acting in his role as President of the Senate, to call for objections after the count of votes.
Vice President Cheney failed to call for objections as the statute requires.
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