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.”
Margot Cleveland is a senior contributor to The Federalist. Cleveland served nearly 25 years as a permanent law clerk to a federal appellate judge and is a former full-time faculty member and adjunct instructor at the college of business at the University of Notre Dame.
The views expressed here are those of Cleveland in her private capacity.
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