WASHINGTON – The Supreme Court announced this on Monday it wouldn't hear a call from Republicans in Pennsylvania seeking to disqualify the mailed ballots from the 2020 presidential election that arrived after election day.
The court's brief order gave no grounds to dismiss the case, which in practice spelled the end of the Supreme Court's disputes over the elections. Judges Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch disagreed, saying the court should have used it as a guide in future elections.
The dissenting judges recognized that the number of ballots in the case was too small to influence President Biden's victory in the state. But the legal question that raised the case – about the power of state courts to overhaul election laws – was, they said, an important question to be resolved without the pressure of impending elections.
The Pennsylvania Supreme Court ruled in September that the ballots sent out before election day could be counted if they arrived within three days. On two occasions before the election, the US Supreme Court declined to intervene in the case, although several judges expressed doubts about the power of the state court to override the state legislature, which set an election deadline for receiving ballots.
On Monday, Justice Thomas wrote that the time was right to hear the case.
& # 39; At first glance, & # 39; he wrote, & # 39; it may seem reasonable to answer this question next time. After all, the 2020 election is over, and the decision of the Pennsylvania Supreme Court did not determine the outcome of a federal election. But whatever strength that argument has in other contexts, it fails in the context of elections. "
“Because the judicial system is not well suited to answer these types of questions in the short time available immediately after an election,” wrote Judge Thomas, “we should use available cases outside of that condensed context to answer these admittedly important questions. . "
In a separate disagreement, Justice Alito, along with Justice Gorsuch, agreed that "our review would be very helpful at this point."
"A decision in these cases would not affect the 2020 elections," Judge Alito wrote. "But a decision would be invaluable for future elections."
On October 19, before Judge Amy Coney Barrett joined the court, the judges stalled, 4 to 4, on an emergency application in the case. Judges Thomas, Alito, Gorsuch and Brett M. Kavanaugh said they would have granted a reprieve to block the decision of the Pennsylvania Supreme Court. On the other hand, Chief Justice John G. Roberts Jr. and the three-member Liberal wing of the court: Judges Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.
Judges arrived later that month declined a plea of Republicans in the state to speed up a decision on whether the Pennsylvania Supreme Court acted lawfully.
In a statement at the time, Judge Alito, accompanied by Judges Thomas and Gorsuch, criticized the court's handling of the case, which he said had "unnecessarily created circumstances that could lead to serious post-selection problems".
"The Pennsylvania Supreme Court has issued a decree that completely changes a major legal provision issued by the Pennsylvania Legislature under its authority under the United States Constitution to set rules for the conduct of elections to federal offices," wrote Justice Alito, adding that he regretted that the elections would take place "under a cloud."
"It would be highly desirable to rule on the constitutionality of the state Supreme Court decision before the election," Judge Alito wrote. "That question is of national importance, and the state Supreme Court decision is likely to violate the federal constitution."
But there was not enough time, he wrote. Yet Judge Alito left no doubt where he stood with regard to the question in the case.
“The provisions of the federal constitution that give state legislatures, not state courts, the power to set rules for federal elections would be pointless,” he wrote, “if a state court could use the rules passed by the legislature. by simply claiming that a state constitutional provision gave the courts the power to make any rules they saw fit for holding fair elections. "
Even after the election, Pennsylvania Republicans continued to seek the Supreme Court in the case, Republican Party of Pennsylvania v. Boockvar, No. 20-542, which said that the judges should address the issue it presented in an orderly manner.
"By resolving the important and recurring questions now, the court can provide much-needed guidance to lawmakers and courts across the country outside the context of hotly contested elections and ahead of the next election," their briefing said. The alternative is that the court leaves the legislature and the courts a lack of prior guidance and clarity on the controlling law – only to answer these questions in future disputes over a contested election, with the associated time pressures and perceptions of partisan interest. "
Judge Thomas wrote on Monday that the court had missed an opportunity.
"You wonder what this court is waiting for," he wrote. “We did not resolve this dispute before the elections, so we have set clear rules. Now we again fail to set clear rules for future elections. "
"The decision to leave the electoral law hidden behind a shroud of doubt is mind-boggling," Judge Thomas wrote. “By doing nothing, we invite further confusion and erosion of voter confidence. Our fellow citizens deserve better and expect more from us. "