Posted on 02/23/2021 8:15:38 AM PST by Kaslin
The Supreme Court’s abdication of its authority to answer important constitutional questions threatens even more chaotic federal elections.
On Feb. 22, 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.
With Joe Biden now a month into his office as president of the United States, Americans may shrug at the court’s decision, but we shouldn’t: 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, “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 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.
Thomas dissented from the court’s denial of the petition for certiorari, calling the court’s refusal to hear the case “inexplicable.” In his dissent, Thomas explained both the problem with the Pennsylvania Supreme Court’s decision and why it was imperative for the U.S. Supreme Court to enter the fray.
“The Constitution gives to each state legislature authority to determine the ‘Manner’ of federal elections,” Thomas opened his dissent, citing Article I, § 4 clause 1 and Article II, § 1 of the national Constitution. “Yet both before and after the 2020 election, nonlegislative officials in various States took it upon themselves to set the rules instead,” the originalist jurist continued.
Whether such nonlegislative actions violate the Electors Clause of the Constitution, as Article I, § 4 clause 1, has become to be known, or Article II, § 1, which governs the selection of the president, is the essence of the exercise of self-government, Justice Thomas wrote, because “elections are ‘of the most fundamental significance under our constitutional structure.’”
Elections, however, “enable self-governance only when they include processes that ‘giv[e] citizens (including the losing candidates and their supporters) confidence in the fairness of the election,” the dissent continued. And “unclear rules threaten to undermine the system. They sow confusion and ultimately dampen confidence in the integrity and fairness of elections.”
While our country was fortunate that the rule change in Pennsylvania did not alter the outcome of a federal election, “we may not be so lucky in the future,” Justice Thomas stressed. So the Supreme Court should make clear “whether state officials have the authority they have claimed,” or “if not,” then the Supreme Court should “put an end to this practice now before the consequences become catastrophic,” Justice Thomas wrote.
Yet 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 nonlegislative officials altering election rules.”
In his separate dissent, Justice Alito also concluded that certiorari should be granted because 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.”
“Indeed, it would be surprising if parties who are unhappy with the legislature’s rules,” Justice Alito continued, “do not invoke this decision and ask state courts to substitute rules they find more advantageous.”
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. Further, as Justice Thomas stressed, “postelection litigation is truncated by firm timeliness,” which “imposes especially daunting constraints when combined with the expanded use of mail-in ballots.”
Thomas’s dissent highlighted another significant reason for review. “Because fraud is more prevalent with mail-in ballots,” Justice Thomas wrote, “increased use of those ballots raises the likelihood that courts will be asked to adjudicate questions that go to the heart of election confidence.”
Here Justice Thomas wisely noted in his dissent that “settling rules well in advance of an election rather than relying on postelection litigation ensures that courts are not put in [the] untenable position” of either potentially disenfranchising a subset of voters or ignoring the rules the legislature believes necessary to ensure election integrity.
Yet the Supreme Court denied review.
Maybe the six justices who voted against certiorari believe the country will be better off without relitigating 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.”
I remember in my college government course an emphasis taught was the separation of powers among the branches. Instead here we have a united cabal of protected Deep Stater’s as bees to protect the honeycombed hive at all costs. The Founders would be aghast at what this treacherous government has become.
Hey Roberts! What about that account you have at the Bank of Malta? Rainy day fund?
“Can’t erode what doesn’t exist.”
Agreed. Some pretend it still exists. When the oligarchy has stolen an election from the people, it is ridiculous to think the courts are not part of the oligarchy.
I’m an eroded voter.
God bless the great Justice Clarence Thomas.
Proverbs 29:2
—When the righteous are in authority, the people rejoice: but when the wicked beareth rule, the people mourn.
Unless one is a leftarded moron, immoral hack or gainfully corrupted/employed by the system for influential self enrichment’s.
The Roberts Court could care less about voter confidence. John Roberts’ sole function, in his mind, is to protect the reputation of SCOTUS. And by doing that he’s ruined it.
“It’s outrageous that there wasn’t a single state legislature in that bunch of contested states that even bothered to cast a vote to put its own governor and/or election officials back in their places.”
I agree. The GOP is not helpless here. Red state legislatures need to assert their preeminence over voting integrity. Shame on them for being rolled over.
This party has too many wimps.
One thing is sure- it’s well past time to go after these activist judges at the fed level who choose to violate the Constitution and their oaths in order to please their personal ideology. They NEED to be removed from the bench.
As to our voter confidence? ONLY we the people can fix that, thru our state legislatures. And it’s also time for a Convention of States to address the abuses of our 10th Amendment rights.
Yep, they told us all they needed to tell us back in January when they delayed considering any of these election cases until the fraud was inaugurated. Couldn’t have been much clearer if John Roberts had walked around wearing a sandwich board saying “Property of the Democrat Party”.
The Erosion of Voter Confidence is happening rapidly. I thought it was just me until I talked to a few people. We were relying on the Supreme Court to have some guts and at least hear some cases of possible election fraud. They have so far turned down every case. That is really disheartening. There are indications everywhere of fraud in that election. If the Supreme Court does not handle it, voter fraud will run rampant with the democrats in power. Many will consider the country gone. I wish the Supreme Court would get some fortitude. They seem gutless.
Why would we want voter confidence? if voters don’t believe in the election process, the elites can use their paid-for “voters” to gain total power.
The ones who pretend our votes still count drive me crazy!
I can’t imagine ever voting again.
I want to know, among all the “conservative” talking heads, actually thinks 2022 and 2024 could possibly result in any gains for (R). I know they say it, but do they actually believe it? I really find it difficult to accept that they accept the results at face value. I think it more likely that 90% of the establishment aided and abetted in this coup.
Trump won this in a landslide and they stole it.
What moron actually believes that the fraud won’t be *greater* next time? The Rats have just been given the green light to do as they please - and they will do just that.
This will likely accomplish nothing, but what about a nation-wide petition signed by millions of voters attesting to the necessity of these same voting practices not remaining in place?
And beyond that, a calling for a general strike and a nation-wide economic shutdown until these voting practices are discontinued would at least attract attention to this issue.
There must be some peaceable was to resolve this.
Where were ACB and Kavanaugh?
Yeah, after a lifetime of never missing an election, I’m not jazzed about taking part in a future charade.
Article V.
NOTHING LEFT TO ERODE!!!!
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