As RedState reported this morning, the Supreme Court of the United States has once again played the role of chicken and 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.
Thank you Judge Thomas pic.twitter.com/G22OWw4IAE
— Julie Kelly 🇺🇸 (@julie_kelly2) February 22, 2021
Kyle Becker, a contributor here at RedState, provides a more thorough telling of what Thomas said.
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. 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. These cases provide us with an ideal opportunity to address just what authority nonlegislative officials have to set election rules, and to do so well before the next election cycle. The refusal to do so is inexplicable…
…Not only did parties on both sides agree that the issue warranted certiorari, but there also was no question that petitioners faced irreparable harm. (“‘[A]ny time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury’”). Petitioners further established a fair prospect of certiorari and reversal. For more than a century, this Court has recognized that the Constitution “operat[es] as a limitation upon the State in respect of any attempt to circumscribe the legislative power” to regulate federal elections. Because the Federal Constitution, not state constitutions, gives state legislatures authority to regulate federal elections, petitioners presented a strong argument that the Pennsylvania Supreme Court’s decision violated the Constitution by overriding “the clearly expressed intent of the legislature.”
In my view, Thomas is completely correct here. This was a case that was punted due to technical reasons, not an honest look at the law. Further, 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.
Keep in mind, this was not a question of election fraud (i.e. falsifying votes) or some other radioactive topic. 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. No one is asking them to bias their judgements, but there was no logical reason to not vote to take up this case.
As per our usual agreement, everything that’s old will be new again, and that includes fighting these election fights in the coming years because our institutions refuse to fix the system.