Invites merry-go-round rule changes in next election.
Is Justice Clarence Thomas the true successor of Justice Scalia? We excerpt from his dissent in the Supreme Court’s refusal today 02-22-21 to hear a challenge to the Presidential vote in Pennsylvania. It’s relevance to a similar challenge here in Wisconsin is unmistakable.
National Review is worth consulting:
The Court this morning turned away the remaining challenges to the 2020 election in Pennsylvania, Wisconsin, Georgia, Arizona, and Michigan [on the grounds that the election is over, therefore the issue is moot]. … none of them offered any legitimate grounds to change the outcome of the presidential election, but [can] state courts or state executive officials can use the general, open-ended terms of state constitutional provisions to throw out specific rules passed by state legislatures governing federal elections?
The Constitution gives to each state legislature authority to determine the “Manner” of federal elections. Both before and after the 2020 election, non-legislative 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 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. …
Unclear rules … sow confusion and ultimately dampen confidence in the integrity and fairness of elections. … We are fortunate that the Pennsylvania Supreme Court’s decision to change the receipt deadline for mail-in ballots does not appear to have changed the outcome in any federal election.
That 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.
“Voting by mail was traditionally limited to voters who had defined, well-documented reasons to be absent.” Thomas wrote. “In recent years, however, many States have become more permissive, a trend greatly accelerated by COVID–19.”
Mail-in ballots accounted for 38% of Pennsylvania’s total compared to 4% just two years earlier … “the risk of fraud vastly more prevalent.” Quoting a Yale Law School dean: “Absentee voting replaces the oversight that exists at polling places with something akin to an honor system.” Justice Thomas:
When an official has improperly changed the rules, but voters have already relied on that change, courts must choose between potentially disenfranchising a subset of voters and enforcing the election provisions. …. That occurred last year. After a court wrongly altered South Carolina’s witness requirement for absentee ballots, this Court largely reinstated the original rule, but declined to apply it to ballots already cast. …
Only Justices Alito and Gorsuch voted with Thomas to hear the case; Thomas needed a fourth to do so. Thomas went on to say that states have only five weeks to certify a Presidential election, all the more reason to hear the Pennsylvania case now.
Here, we have the opportunity to [adjudicate] almost two years before the next federal election cycle. Our refusal to do so by hearing these cases is befuddling.