Absence of Supremes in election dispute called 'ticking time bomb'

With three Supreme Court justices weighing in on the dispute over the 2020 presidential election regarding the violation of laws by state officials, the issue isn’t going away.

In fact, writes University of California an Irvine Professor Rick Hasen on his Election Law Blog, it’s “a ticking time bomb” that the Supreme Court “is going to have to resolve.”

The first issue is that the Constitution grants state legislatures the authority to set election requirements. The second is that in the 2020 vote count, state officials in a number of states arbitrarily change the rules amid a floods of mail-in ballots, which are more susceptible to fraud.

Just three of the nine justices voted Monday that the court should have taken up two cases from Pennsylvania on the issue.

The ABA Journal noted two of President Trump’s appointees, Amy Coney Barrett and Brett Kavanaugh, did not agree to take the case. Nor did Chief Justice John Roberts. Only one more vote was needed for the court to review the cases.

The Pennsylvania cases argued that the state Supreme Court did not have the authority to change state law to accommodate the wishes of politicians in the 2020 race.

Clarence Thomas, Samuel Alito and Neil Gorsuch wanted to review the cases, and Thomas warned of “catastrophic” consequences if the court doesn’t address the issue of authorities “changing the rules in the middle of the game.”

Hasen noted that Kavanaugh chose not to take up the Pennsylvania cases even though he’s indicated that under the Constitution “state courts do not have a blank check to rewrite state election laws for federal elections.”.

Hasen wrote: “So why didn’t the court go further in this case? My guess is that it is either the fact that the case is moot (and the court would rather address the issue in the context of a live case, but with lower stakes) or because the Trump cases are somewhat radioactive at the court. Given former President Trump’s continued false statements that the election was stolen, the case would become a further vehicle to argue that the election results were illegitimate. It would thrust the court back in the spotlight on an issue the justices showed repeatedly they wanted to avoid.

“So the bottom line is that the independent state legislature doctrine hangs out there, as a ticking time bomb, waiting to go off in a future case,” he said.

All of the cases regarding the 2020 race were delayed until after Biden’s inauguration.

Thomas said the Pennsylvania 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.”

He said there’s little dispute about the facts:

The Constitution gives to each state legislature authority to determine the ‘Manner’ of federal elections. … Yet both before and after the 2020 election, nonlegislative officials in various states took it upon themselves to set the rules instead. As a result, we received an unusually high number of petitions and emergency applications contesting those changes. The petitions here present a clear example. 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.

Alito, joining with Gorsuch in dissent, pointed out that lower courts are divided on the issue.

“In the cases now before us, a statute enacted by the Pennsylvania Legislature unequivocally requires that mailed ballots be received by 8 p.m. on election day. … Nevertheless, the Pennsylvania Supreme Court … altered that deadline and ordered that mailed ballots be counted if received up to three days after the election,” he said.

Thomas, in a separate opinion, noted that the Constitution gives each state legislature the authority to determine the “manner” of federal elections.

“Yet both before and after the 2020 election, nonlegislative officials in various States took it upon themselves to set the rules instead,” he wrote.

“This 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,” he said.

The three said the issue needs to be resolved, even though the cases would not affect the outcome of the election.

“But whatever force that argument has in other contexts, it fails in the context of elections. For at least three reasons, the Judiciary is ill equipped to address problems—including those caused by improper rule changes—through post-election litigation,” he said.

Alito said the Pennsylvania cases “present an important and recurring constitutional question: whether the Elections or Electors Clauses of the United States Constitution are violated when a state court holds that a state constitutional provision overrides a state statute governing the manner in which a federal election is to be conducted.”

“That question has divided the lower courts, and our review at this time would be greatly beneficial.”

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