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Sunday, February 28, 2021

In Pennsylvania voting case, Justices Thomas and Alito rightly blast colleagues’ inaction

The U.S. Supreme Court now has promulgated the bizarre illogic that challenges to sketchy voting practices come too soon if they are made before the election but too late if they come afterward. Its silent inaction amounts to an open invitation to serious voting-related mischief in future elections.

In dissent on Monday, Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch were right to blast the other justices’ refusal to hear two Pennsylvania cases. Both cases involved the Pennsylvania Supreme Court’s sudden, unilateral changes last fall to the state’s voting procedures against the express language of laws duly passed by the state’s Legislature.

In 2019, the Legislature passed a law providing for widespread mail-in balloting. In response to COVID-19, the Legislature amended the law but kept in place a requirement that ballots must arrive by 8 p.m. on Election Day in order to be counted. Last September, the Pennsylvania Supreme Court, on its own authority, extended the deadline until three days after regular balloting closes, and it even muddied a requirement that ballots must at least be postmarked clearly by Election Day.

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Without comment, and against four dissenting votes, the court back then refused to interfere to stop the state court from effectively writing a new law on the fly. Then, on another motion a week before the election, the Supremes decided that not enough time remained to decide the case on the merits before the traditional, in-person voting day.

Still, the merits of the case remained unaddressed. That’s why the high court faced the decision about whether to accept the case now. As it turns out, just 10,000 ballots arrived late in November, which obviously fell short of making the difference in Donald Trump’s 80,000-vote loss in Pennsylvania. By a 5-3 majority, again without comment from the majority, the court this week again declined to hear the case. Yet by reading the dissents by Thomas and Alito (with Gorsuch joining Alito’s opinion), it is obvious the majority denied certiorari at least in large part because it considered the case “moot,” meaning no “case or controversy” now exists because no existing election result would be affected.

This is nonsense. As the dissenting justices note, the Pennsylvania court’s assertion of power would allow it to implement the same, more lenient rules in future elections, again against the state Legislature’s wishes.

“There is a ‘reasonable expectation’ that the parties will face the same question in the future,” wrote Alito, “and that the question will evade future pre-election review, just as it did in these cases.” The constitutional questions, he wrote, aren’t moot but “important and recurring.”

Thomas, in a much longer dissent noting the significantly increased chance of vote fraud in elections with lenient mail-in balloting rules, concluded that in refusing to consider the substance of the case, “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.”

This is the crux of the issue. Like Trump himself, the five justices in the majority act as if everything revolves around the interests of the orange-haired billionaire. If his election result won’t be changed, they seem to say, then why take the case at all?

The answer is that this isn’t a case about Trump. It’s a case about who makes election law, and how; and the affected parties aren’t merely the protesting political candidates but all the voters of Pennsylvania. Each time a vote is counted despite violating state law as written, it cancels out the duly cast vote of a real citizen abiding by the rules. By dodging the cases both before the 2020 Election Day and afterward, the Supreme Court leaves no recourse to those honest voters.



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