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By closing the courthouse door on these petitioners, the Court today denies them any ability to have their claims fully considered by the judiciary.[1] That is because petitioners, rightly thinking that time is short, have filed this case as an original action in this Court. As a result, they have received no decision below and now will go without any answer. I believe it is incumbent upon the Court, in these circumstances, to provide
- ↑ Justice Clement declares it “irresponsible” for us even to consider the issues presented by this case. Ante at 1, 9. I would beg to differ. Considering jurisprudentially significant constitutional claims is our core responsibility. The fact that the claims arise in a high-profile case or one that may have national implications is no reason for us to shy away from our duty to decide them. As I have discussed at some length here (and in Costantino), our election contest laws are underdeveloped and unclear. That murkiness may explain why the petitioners here (and parties in related cases like Costantino) have had such difficulty navigating them. Justice Clement appears to agree that the law is unsettled: her concurrence repeatedly hedges on every significant question in the case, and she ultimately concludes that she has “no absolutely definitive answers for” them. Ante at 8. So we have real work to do in this case to clarify the law in this area—work that only this Court can do.
In addition, despite claiming she has not reached any “definitive answers,” Justice Clement’s reasons for voting to deny are premised on certain conclusions regarding the nature of the right to an audit and other issues in the case. For example, she says “there is no apparent purpose to which the audit sought by the petitioners can be put in light of the above-mentioned jurisdictional limits on the judiciary’s ability to revisit the outcome of this election.” Ante at 6. This suggests that the audit right has no role to play in election contests because such contests cannot come before the courts. And because she believes the matter is for the Legislature, she sees no need to resolve the “tension” she perceives in the text of Article 2, § 4. Ante at 7. Of course, this conclusion overlooks the possibility that the results of an audit could be used by petitioners to convince the Legislature to take up the matter and to prevail in that venue. Baked into the concurrence’s rationales, then, are determinations about the scope and nature of the audit right, this Court’s jurisdiction, and the respective roles of the courts and Legislature—all of which are questions at the heart of the case and any of which is significant enough, in my opinion, to merit a full opinion from this Court. Thus, in professing not to answer any question in this case, Justice Clement assumes the answer to a number of them. I would instead take direct aim at resolving these issues, but only after hearing the case.
