The Supreme Court issued a decision Monday on whether to take up dozens of cases presented as petitions, and a majority of the justices rejected all legal challenges related to the 2020 election.
Included among those rejections were two cases from Pennsylvania regarding late rule changes imposed by courts that contradicted state law passed by the legislature, specifically the three-day extension of the deadline to receive absentee and mail-in ballots, the Associated Press reported.
That rejection prompted a written dissent by Justice Clarence Thomas, joined in part by Justices Samuel Alito and Neil Gorsuch, that chastised the court for dodging the issue and leaving a fundamental question unclear regarding who has the final say in setting the rules of elections in a state — the state legislature, as is laid out in the U.S. Constitution, or the courts and other state officials.
A problem that will repeat itself?
National Review noted that the election challenges were likely rejected because the cases are viewed as moot since the elections have been certified.
Justice Thomas saw things differently, however, and excoriated the court for not seizing the opportunity to settle a legitimate dispute that will become an issue again in future elections.
Thomas took particular exception to the fact that the court had ducked this important issue multiple times, both before and after the election, setting up an unacceptable Catch-22 in that, prior to the election it was argued that the case wasn’t ripe and nobody had been harmed, while arguing after the fact that, with the election complete, it was now a moot point that couldn’t be altered.
In his dissent, Thomas noted that the Constitution makes clear that state legislatures are to be the sole authority on determining how elections are conducted. He pointed out how that authority had been usurped by the Pennsylvania Supreme Court by extending the mail-in ballot receipt deadline three days past the Election Day deadline set in statute by lawmakers.
“That decision to rewrite the rules seems to have affected too few ballots to change the outcome of any federal election. But that may not be the case in the future,” Thomas wrote. “These cases provide us with an ideal opportunity to address just what authority nonlegislative officials have to set election rules, and to do so well before the next election cycle. The refusal to do so is inexplicable.”
Court shirks its responsibility
The justice wrote regarding elections, “Unclear rules threaten to undermine this system. They sow confusion and ultimately dampen confidence in the integrity and fairness of elections. To prevent confusion, we have thus repeatedly — although not as consistently as we should — blocked rule changes made by courts close to an election.”
“An election system lacks clear rules when, as here, different officials dispute who has authority to set or change those rules,” he continued. “This kind of dispute brews confusion because voters may not know which rules to follow. Even worse, with more than one system of rules in place, competing candidates might each declare victory under different sets of rules.”
“Changing the rules in the middle of the game is bad enough. Such rule changes by officials who may lack authority to do so is even worse,” he added. “When those changes alter election results, they can severely damage the electoral system on which our self-governance so heavily depends. If state officials have the authority they have claimed, we need to make it clear. If not, we need to put an end to this practice now before the consequences become catastrophic.”
“One wonders what this Court waits for. We failed to settle this dispute before the election, and thus provide clear rules. Now we again fail to provide clear rules for future elections. The decision to leave election law hidden beneath a shroud of doubt is baffling. By doing nothing, we invite further confusion and erosion of voter confidence. Our fellow citizens deserve better and expect more of us. I respectfully dissent,” Thomas concluded.