The U.S. Supreme Court has passed up yet another opportunity to wade into disputes over last year’s presidential election.
The justices on Monday declined to take up cases challenging a Pennsylvania state court decision that extended the ballot-receipt deadline in last November’s election by three days due to the coronavirus pandemic.
Former President Donald Trump and the Pennsylvania Republican Party were among those urging the justices to grant review of the Pennsylvania Supreme Court ruling. Only about 10,000 ballots arrived during the three-day window, well short of the number that could have imperiled Joe Biden’s 80,555-vote victory in the Keystone state.
The justices offered no public explanation for their rejection of the cases, but one member of the court, Justice Clarence Thomas, dissented. He said the court should have granted review, even though the dispute was effectively moot, and he took a swipe at his colleagues for the decision to pass up the cases.
“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.”
Both before and after last fall’s election, Trump and GOP officials tried to get the U.S. Supreme Court to step into the Pennsylvania fight, a request the justices repeatedly declined.
On Oct. 19, the justices deadlocked 4-4 on a request for a stay that would have blocked the three-day extension. A little over a week later, the justices unanimously declined to hear the dispute on an expedited basis, but Justices Samuel Alito, Clarence Thomas and Neil Gorsuch indicated serious doubts about the Pennsylvania high court’s action. Newly sworn-in Justice Amy Coney Barrett chose not to take part in that vote, saying she had not had enough time to study the issue.
And in December, the justices acted without noted dissent to turn down a bid by Rep. Mike Kelly (R-Pa.) to decertify Biden’s win in the state.
GOP lawyers argued that the state Supreme Court’s action violated language in the U.S. Constitution that says state legislatures control each state’s method for selecting presidential electors.
Democratic attorneys contended that once the basic method of selection was chosen by the legislature, adjustments to that procedure by the courts don’t run afoul of the U.S. Constitution, particularly during an emergency such as the coronavirus outbreak.
The Pennsylvania high court’s ruling, delivered on a 4-3 vote, did require that ballots appear to have been mailed or postmarked by Election Day, but allowed them to be received until 5 p.m. on the following Friday. The judges in the majority said they were concerned both about the impact of the virus and of widespread delays at the U.S. Postal Service.
It’s unclear why the U.S. Supreme Court turned aside the Pennsylvania election cases since only four justices are needed to grant review in a case and four justices thought the state court’s ruling was so off-base that they voted in October to block it on an emergency basis. One possibility is that they decided the dispute was moot because of the margin of Biden’s victory and because his victory in the broader Electoral College meant Pennsylvania’s votes were not pivotal.
Thomas said that approach was a mistake.
“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,” he wrote.
Thomas, an appointee of former President George H.W. Bush, also seemed to allude to Trump’s fraud claims, suggesting that concerns about such abuses are legitimate.
“We are fortunate that many of the cases we have seen alleged only improper rule changes, not fraud,” Thomas wrote. “But that observation provides only small comfort. An election free from strong evidence of systemic fraud is not alone sufficient for election confidence. Also important is the assurance that fraud will not go undetected.”
The Supreme Court has at least one more chance to get involved in a case related to the 2020 presidential election. Trump still has a request pending with the justices to weigh in on his unsuccessful challenge to changes the Wisconsin Election Commission ordered in that state, including the use of ballot drop-boxes. That case is set for discussion at the justices’ closed-door conference on March 5.
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