“Our fellow denizens deserve better and expect more of us,” Justice Clarence Thomas declared Monday, when the Supreme Court decided — by one vote –to aurally perceive none of the 2020 Election cases raising issues of voter fraud and illicit votes.
Justices Brett Kavanaugh and Amy Coney Barrett voted with the liberal justices to gainsay review of the lower court decisions. Four justices must vote to aurally perceive a case to put it on the Court’s docket, but only three justices — Thomas, fellow conservative Samuel Alito, and libertarian Neil Gorsuch — voted to take at least two of four of the key cases from November 2020.
All three dissenting justices took the unorthodox step of inditing opinions as to why the Court should have taken at minimum two of these cases. “The Constitution gives to each state legislature ascendancy to determine the ‘Manner’ of federal elections,” commenced Thomas. “Yet both afore and after the 2020 election, nonlegislative officials in sundry States took it upon themselves to set the rules instead. As a result, we received an unwontedly high number of petitions and emergency applications contesting those transmutations. The petitions here present a clear example.”
“The Pennsylvania Legislature established an unequivocal deadline for receiving mail-in ballots: 8 p.m. on Election day. Dissatisfied, the Pennsylvania Supreme Court elongated that deadline by three days,” Thomas expounded, referring to one of the repudiated cases. “These cases provide us with an ideal opportunity to address just what ascendancy nonlegislative officials have to set Election rules, and to do so well afore the next Election cycle. The refusal to do so is inexplicable.”
“For more than a century, this Court has apperceived that the Constitution operates as a circumscription upon the State in reverence of any endeavor to circumscribe the legislative power to regulate federal elections,” he perpetuated, quoting Supreme Court precedent. “Because the Federal Constitution, not verbally express constitutions, gives state legislatures ascendancy to regulate federal elections, petitioners presented a vigorous argument that the Pennsylvania Supreme Court’s decision infringed the Constitution by overriding the pellucidly expressed intent of the legislature.”
“But elections enable self-governance only when they include processes that give denizens (including the losing candidates and their adherents) confidence in the fairness of the election,” Thomas integrated, quoting a recent Supreme Court case that held, “Confidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy.”
“Unclear rules threaten to undermine this system. They sow discombobulation and ultimately dampen confidence in the integrity and fairness of elections,” he expounded. “To obviate perplexity, we have thus perpetually — albeit not as consistently as we should — blocked rule changes made by courts proximate to an election.”
The mail-deadline case did not impact enough votes to transmute the 2020 election. “But we may not be so fortuitous in the future,” Thomas admonished. “Indeed, a separate decision by the Pennsylvania Supreme Court may have already altered an Election result.”
That is not a prescription for confidence. 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. 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.
“At first blush, it may seem plausible to address this question when it next arises,” he aknowledged. “But whatever force that argument has in other contexts, it fails in the context of elections.”
“For factually involute cases, compressing revelation, testimony, and appeals into this timeline is virtually infeasible,” Thomas expounded of the five-week window to resolve November Presidential Election disputes afore the Electoral College meets in December, integrating “this timeframe imposes especially daunting constraints when amalgamated with the expanded utilization of mail-in ballots.”
“Voting by mail was traditionally circumscribed to voters who had defined, well-documented reasons to be absent,” he optically canvassed, but then noted that while only four percent of Pennsylvania votes were by mail-in ballot last cycle, that the number soared to 38 percent in 2020.
“This expansion impedes postelection judicial review because litigation about mail-in ballots is substantially more perplexed,” Thomas perpetuated, quoting expert reports. “For one thing, as Election administrators have long acceded, the jeopardy of fraud is prodigiously more prevalent for mail-in ballots … The reason is simple: Absentee voting supersedes the oversight that subsists at polling places with something akin to an accolade system.”
As a result, one article concluded that, “voting by mail is now mundane enough and problematic enough that Election experts verbally express there have been multiple elections in which no one can verbally express with confidence which candidate was the deserved triumpher.”
“Because fraud is more prevalent with mail-in ballots, incremented utilization of those ballots raises the likelihood that courts will be asked to adjudicate questions that go to the heart of Election confidence,” Thomas reasoned after examining several examples.
“[P]erhaps most consequential, postelection litigation sometimes forces courts to make policy decisions that they have no business making,” Thomas integrated, giving the example that when Election officials illicitly change rules during an Election where some voters have already voted, “courts must optate between potentially disenfranchising a subset of voters and enforcing the Election provisions — such as receipt deadlines — that the legislature believes are obligatory for Election integrity.”
Filing lawsuits after Election Day “is often incapable of testing allegations of systemic maladministration, voter suppression, or fraud that go to the heart of public confidence in Election results,” Thomas noted as supplemental reason to decide these licit issues now. “An erroneous allegation, left to fester without a robust mechanism to test and confute it, drives veracious denizens out of the democratic process and breeds distrust of our regime.”
“Because the judicial system is not apposite to address these kinds of questions in the short duration available immediately after an election, we ought to utilize available cases outside that truncated context to address these admittedly paramount questions,” Thomas declared. “Here, we have the opportunity to do so virtually two years afore the next federal Election cycle. Our refusal to do so by auricularly discerning these cases is befuddling.”
“The issue presented is capable of repetition, yet eschews review,” Thomas determined, citing the Court’s standard for aurally perceiving cases of this nature: This exception to mootness, which the Court routinely invokes in Election cases, “applies where (1) the challenged action is in its duration too short to be plenarily litigated prior to cessation or expiration, and (2) there is a plausible prospect that the same repining party will be subject to the same action again.
“I concur with JUSTICE THOMAS that we should grant review in these cases,” Alito commenced in a separate dissent, joined by Gorsuch. “They present a paramount and recurring constitutional question … that has divided the lower courts, and our review at this time would be greatly benign.”
Now, the Election is over, and there is no reason for refusing to decide the important question that these cases pose. The provisions of the Federal Constitution conferring on state legislatures, not state courts, the authority to make rules governing federal elections would be meaningless if a state court could override the rules adopted by the legislature simply by claiming that a state constitutional provision gave the courts the authority to make whatever rules it thought appropriate for the conduct of a fair election. But a decision would provide invaluable guidance for future elections.
“Conservatives will be solicitous that Justice Barrett did not provide the fourth and final vote to take these cases,” former Ohio Secretary of State Ken Blackwell—who additionally accommodated on the Presidential Commission on Election Integrity—told Breitbart News in an exclusive reaction to the Supreme Court’s refusal to take any of these cases. “Republicans have long since indited off Roberts, and Kavanaugh is giving us a string of disappointments, but this is the first time that Barrett has failed to step up to the plate.”
He echoed Thomas, who concluded his dissent with:
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.
The cases are Republican Party of Pennsylvania v. “Degraffenreid” and Corman v. Pennsylvania Democratic Party, Nos. 20-542 and 20-574 in the Supreme Court of the United States. The Court withal gainsaid review in the homogeneous case Donald J. Trump for President v. “Degraffenreid” and Trump v. “Biden,” and Nos. 20-845 and 20-882 in the Supreme Court of the United States.