WASHINGTON – The Supreme Court said on Monday it would not hear an appeal from Republicans in Pennsylvania who sought to disqualify the ballots mailed in the 2020 presidential election that came after election day.
The brief court order gave no reason to dismiss the case, which marked the end of the Supreme Court litigation over the election. Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch expressed their dissent, saying the court should have used it to provide guidance in future elections.
The dissenting justices acknowledged that the number of ballots at issue in the case was too small to affect President Biden’s victory in the state. But the legal question raised by the case – over the power of state courts to review election laws – was, they said, an important issue that should be resolved without the pressure of an impending election.
The Pennsylvania Supreme Court ruled in September that ballots sent out before election day could be counted if they arrived up to three days after. On two occasions before the election, the United States Supreme Court refused to intervene in the case, although several judges expressed doubts about the power of the state court to override the Legislative Assembly of the state, which had set a deadline on election day for receiving ballots by mail.
On Monday, Judge Thomas wrote that the time had come to take up the case.
“At first glance,” he writes, “it may seem reasonable to address this question the next time it arises. After all, the 2020 election is now over and the decision of the Pennsylvania Supreme Court was not decisive for the federal election. But however strong this argument may be in other contexts, it fails in the context of elections.
“Because the court system is not well suited to deal with these kinds of issues in the short time available immediately after an election,” Judge Thomas wrote, “we should use the cases available outside of this truncated context. to answer these questions, certainly important.
In a separate dissent, Judge Alito, joined by Judge Gorsuch, agreed that “our review at this time would be very beneficial.”
“A decision in these cases would have no bearing on the 2020 elections,” Judge Alito wrote. “But a decision would provide invaluable guidance for future elections.
On October 19, before Judge Amy Coney Barrett joined the court, the justices found themselves in a deadlock, 4 to 4, over an emergency request in the case. Justices Thomas, Alito, Gorsuch and Brett M. Kavanaugh said they would have granted a stay blocking the Pennsylvania Supreme Court decision. On the other side were Chief Justice John G. Roberts Jr. and the three-member Liberal wing: Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.
Later that month, justices refused a plea from state Republicans to expedite a decision on the legality of the Pennsylvania Supreme Court.
In a statement released at the time, Judge Alito, joined by Justices Thomas and Gorsuch, criticized the court’s handling of the case, which he said had “unnecessarily created conditions that could lead to serious post-election problems ”.
“The Supreme Court of Pennsylvania issued an executive order which outright amends an important statutory provision enacted by the Pennsylvania legislature under its authority under the Constitution of the United States to establish rules governing the conduct of elections to federal office.” , wrote Judge Alito: adding that he regretted that the election was taking place “under a cloud”.
“It would be highly desirable to render a decision on the constitutionality of the state Supreme Court’s decision before the elections,” Judge Alito wrote. “This issue is of national importance and it is highly likely that the decision of the State Supreme Court violates the Federal Constitution.”
But there was not enough time, he wrote. Still, Judge Alito left little doubt about his position on the issue in the case.
“The provisions of the Federal Constitution conferring on state legislatures, and not on state courts, the power to make rules governing federal elections would be meaningless,” he wrote, “if a court of The state could override the rules adopted by the legislature simply by asserting that the constitutional provisions of the state gave the courts the power to make the rules they deemed appropriate for the conduct of a fair election. “
Even after the election, Pennsylvania Republicans continued to seek Supreme Court review in the Pennsylvania Republican Party v. Boockvar, # 20-542, arguing that judges should approach the question she presented in an orderly fashion.
“By resolving the important and recurring issues now, the court can provide the advice that legislatures and state courts across the country desperately need outside of the context of a hotly contested election and ahead of the next election,” their report said. memory. “The alternative is for the court to leave legislatures and courts with a lack of prior guidance and clarity regarding the review law – only to be called upon to answer these questions in a future litigation after the fact.” on a contested election, with the time that goes with it. pressures and perceptions of partisan interest. “
On Monday, Judge Thomas wrote that the court had missed an opportunity.
“One wonders what awaits this tribunal,” he wrote. “We failed to resolve this dispute before the election, and therefore provide clear rules. Today, we again fail to provide clear rules for future elections. “
“The decision to leave the electoral law hidden under a veil of doubt is puzzling,” Judge Thomas wrote. “By doing nothing we are causing further confusion and erosion of voter confidence. Our citizens deserve better and expect more from us. “