"Supreme Court Denial Of Election Cases Helps 'Erode Voter Confidence’ "
"On February 22, 2021, the Supreme Court refused to hear two 2020 election-related appeals, falling one vote short of the four needed for the high court to agree to hear the case.
Justice Clarence Thomas dissented from the denial of certiorari, as did Justice Samuel Alito in a separate dissent, joined by Justice Neil Gorsuch.
... The Supreme Court’s abdication of its authority to answer important constitutional questions only encourages further lawlessness by state election officials and courts, undermines voter confidence, and threatens even more chaotic federal elections.
The two cases the Supreme Court rejected on Monday both involved the 2020 election in Pennsylvania and the constitutionality of a state court decision overriding an unambiguous deadline the Pennsylvania legislature established for the receipt of mail-in ballots of 8 p.m. on election night.
As Justice Thomas explained in his dissent, “ ... the Pennsylvania Supreme Court extended that deadline by three days.
The court also ordered officials to count ballots received by the new deadline even if there was no evidence—such as a post mark—that the ballots were mailed by election day.”
The Republican Party of Pennsylvania and several members of the Pennsylvania House and Senate attempted to challenge the Pennsylvania Supreme Court’s decision in the U.S. Supreme Court before the election, but, at the time, the justices refused to expedite the case, leaving the petitions for review to proceed under the normal briefing schedule.
But following briefing, the court denied the petition on Feb. 22.
... the Supreme Court refused to hear the case.
But why?
Both constitutional and prudential principles weigh in favor of granting certiorari.
Constitutionally, while federal courts only have the power to hear a “case or controversy,” meaning the Supreme Court lacks jurisdiction to hear “moot” cases, here there is a well-established exception to the mootness doctrine: the capable-of-repetition-but-evading-review exception.
This exception to the mootness doctrine provides that federal courts hold authority to resolve cases where “the challenged action is in its duration too short to be fully litigated prior to cessation or expiration” and where “there is a reasonable expectation that the same complaining party will be subject to the same action again.”
Both criteria exist here, Justice Thomas wrote, as the Pennsylvania Supreme Court’s decision came a mere six weeks before the election, and the petitioners in the cases—the state Republican party and state legislators—are likely to “again confront non-legislative officials altering election rules.”
In his separate dissent, Justice Alito also concluded ... the cases “present an important and recurring constitutional question.”
His dissent, joined by Justice Gorsuch, focused mainly on the mootness question.
The Pennsylvania Supreme Court decision was so broad, Alito wrote, that the questions presented to the U.S. Supreme Court are “surely capable of repetition in future elections.”
That decision, Alito explained, held “that a state constitutional provision guaranteeing ‘free and equal’ elections gives the Pennsylvania courts the authority to override even very specific and unambiguous rules adopted by the legislature for the conduct of federal elections.”
... Not only were the cases not moot, but as the dissents both made clear, the cases both “call out for review,” as Justice Alito put it.
The cases present “an important and recurring constitutional question,” and a question that “has divided the lower courts,” his dissent added.
... Maybe the six justices who voted against certiorari believe the country will be better off without re-litigating the election.
The denial, however, will not heal a country that witnessed state officials and courts change the rules mid-vote—not just in Pennsylvania, but in Wisconsin and Michigan too.
Then her citizens saw the Supreme Court seemingly ignore those violations of the Electors Clause when Texas sought relief in the Supreme Court.
Worse yet will be the damage done to our republic when the bending and breaking of election laws repeats in the future.
For now, as Justice Thomas concluded, “by doing nothing,” the Supreme Court invites “erosion of voter confidence.”
We “citizens deserve better and expect more.”
" Justice Thomas Slams SCOTUS for Not Taking up Pennsylvania Election Lawsuit"
" the Supreme Court of the United States ... decided to sidestep an important case.
This time, Justices Kavanaugh, Barrett, and Roberts sided with the liberals on the court to deny a lawsuit surrounding Pennsylvania’s election law changes, some of which appear to have violated the state’s own constitution.
Justice Clarence Thomas dissented in scathing fashion.
The Constitution gives to each state legislature authority to determine the “Manner” of federal elections. Art. I, §4, cl. 1; Art. II, §1, cl. 2.
... This was a case that was punted due to technical reasons, not an honest look at the law.
... if before an election is not the time to allow this suit to go forward, and after the election it can’t go forward because it’s moot, exactly when can it go forward?
All this sets up is for the country (and Pennsylvania in particular) to be dealing with these same issues again in two years.
... It was simply a question of whether unelected judges in a state can override said state’s constitution, blatantly violating election law while doing so.
That seems like a precedent that should absolutely not be set and should instead be slapped down with prejudice.
This is what the Supreme Court exists for, and once again, several members of the conservative wing chose cowardice over dealing with tough issues.
In the end, all this does is make sure that a huge contingent of Americans don’t trust our election system.
And why should they if the courts can’t even be counted on to settle such obvious issues as what occurred in Pennsylvania?
This is also a disappointing showing for Kavanaugh and Barrett, two judges that conservatives absolutely went to the mat for. "
"Justice Thomas: SCOTUS Refusal to Hear Pennsylvania Election Challenges 'Is Inexplicable"
" Justice Clarence Thomas says the U.S. Supreme Court has missed an "ideal opportunity to address just what authority non-legislative officials have to set election rules."
... Justice Thomas wrote an 11-page dissent, noting that the Constitution authorizes each state to set federal election rules.
"Yet both before and after the 2020 election, non-legislative officials in various States took it upon themselves to set the rules instead."
Thomas said the court's failure to hear the challenges two years before the next election is "inexplicable" and "baffling."
He wrote:
" The Pennsylvania Legislature established an unambiguous deadline for receiving mail-in ballots: 8 p.m. on election day.
Dissatisfied, the Pennsylvania Supreme Court extended that deadline by three days.
The court also ordered officials to count ballots received by the new deadline even if there was no evidence -- such as a postmark -- that the ballots were mailed by election day.
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.
These cases provide us with an ideal opportunity to address just what authority non-legislative officials have to set election rules, and to do so well before the next election cycle.
The refusal to do so is inexplicable."
In his dissent, Thomas also raised the issue of mail-in ballot fraud, quoting the New York Times:
"For one thing, as election administrators have long agreed, the risk of fraud is 'vastly more prevalent' for mail-in ballots," Thomas wrote, quoting an Oct. 6, 2012 New York Times article.
"The reason is simple," he continued, quoting again: “[A]bsentee voting replaces the oversight that exists at polling places with something akin to an honor system.”
"Because fraud is more prevalent with mail-in ballots,"increased use of those ballots raises the likelihood that courts will be asked to adjudicate questions that go to the heart of election confidence."
Thomas concluded his dissent by saying Americans deserve better from the court:
"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."
"Our Supreme Court Goes Full Nicaragua in PA Election Case"
"For a couple of years, my wife and I escaped Obama’s America by owning a Pacific Ocean hotel in San Juan del Sur, Nicaragua.
The irony was that in supposedly socialist Nicaragua, Daniel Ortega's government left us alone far more than government did in the supposedly free country of the United States of Obama.
Still, while Ortega 2.0 might have shed most of his socialism, he had not shed his lust for power, and the job of making sure he never lost again was that of the Chief Justice Roberto Rivas Reyes of what is in effect the Nicaraguan Supreme Court.
I’m not sure who was actually more powerful or corrupt -- President Ortega or Justice Rivas -- but Rivas’s was bigger.
His motorcade, that is, and he owned the two biggest homes on the two most elevated lots in San Juan del Sur, the nation’s top coastal town, a few hundred yards from our hotel.
Today I’m not sure whose court is more corrupt vis-a-vis election law: Nicaragua’s court or our Supreme Court.
It appears that Donald Trump has remade the U.S. Supreme Court -- in Mitt Romney’s image! ...
While I think the United States Supreme Court stumbled badly in its 7-2 rejection of the Texas case on standing last year, the refusal to “grant cert” (i.e., to take the case) yesterday in a Pennsylvania case is horrifying beyond words.
I could say that our election laws are now full-on banana republic, but I’d hate to insult bananas that badly.
... Our Supreme Court is now no more an agent of a free people than similar courts are in places like Venezuela and Nicaragua.
Our nation is becoming ungovernable, because there is no reason for a thinking person to have any respect for our institutions like the FBI, The Justice Department, or our courts on any level."
