A Supreme Dodge

Some Questions Must Not Be Answered

Since November 3, 2020 (Election Day) we’ve been instructed that elections cannot be questioned.

Today, the United States Supreme Court agreed with that premise by refusing to answer two important constitutional questions:

1. Whether the Pennsylvania Supreme Court usurped the state legislature’s authority by directing the state to count absentee ballots that arrive up to three days after Election Day as long as they are not clearly postmarked after Election Day; and

2. Whether that decision is preempted by federal statutes that establish a uniform nationwide federal Election Day.

For background, these were the questions presented in two petitions for Supreme Court review involving the Pennsylvania Supreme Court’s order to extend a statutory mail-in vote deadline – one that was instituted by the Pennsylvania legislature (General Assembly) – by three additional days. The Pennsylvania Supreme Court had also laid down rules for assessing those votes by “establishing a presumption that a mail-in ballot lacking any postmark or other proof of mailing was mailed before Election Day ‘unless a preponderance of the evidence demonstrates’ otherwise.”

These decisions by the Pennsylvania Supreme Court were in contravention to legislation that voters could vote in-person or submit a mail-in ballot before the 8:00 p.m. Election Day deadline.

Constitutional Limitations

Simply put, the actions of the Pennsylvania Supreme Court and its change to the Pennsylvania voting laws was at issue because Article I, Section 4 of the Constitution provides that the time, place, and manner of elections is up to the State Legislature:

You might consider these questions and allegations of violation of Constitution and Federal Law to be important. I certainly do. You might also be confused why the Supreme Court refused to answer these questions. So was Justice Clarence Thomas.

Justice Thomas Dissents

The dissent of Justice Thomas – a short and essential read – lays out the issues with the Court’s inaction. There is a divide between courts that typically justifies review “in almost any case.” (In general terms, splits between courts get resolved by the Supreme Court.)

Thomas continues. These unclear rules “threaten to undermine” our election system by sowing “confusion and ultimately dampening confidence in the integrity and fairness of elections.” How can there be confidence in the system if the rules aren’t clear and enforced?

Justice Thomas also draws attention to the curious refusal to consider the petitions for review:

• “The refusal to [consider the petitions] is inexplicable.”

• “Our refusal to [answer these important questions] by hearing these cases is befuddling.”

• “One wonders what this Court waits for.”

• “The decision to leave election law hidden beneath a shroud of doubt is baffling.”

I put those words in bold for a reason. These are questions without question marks. Words that leave the reader asking, “Why did they decline to hear the Pennsylvania cases?” We have theories.

John Roberts and Public Opinion

Let’s say you’re on the Supreme Court. To be more precise, let’s say you’re Chief Justice John Roberts. You’ve observed that the results of the 2020 election were disputed. You saw the resentment spill over to the Capitol building on January 6, 2021.

What happens if the Supreme Court rules that the Pennsylvania Supreme Court violated the Constitution and Federal Law by extending the voting deadline?

The results may not change – if buying the argument from Secretary of Pennsylvania Kathy Boockvar that the late votes wouldn’t make up the difference – but it would certainly cast more doubt onto the 2020 election.

Roberts would never let it happen. He calculates political winds and currents of public opinions to maneuver the Supreme Court to a safe destination of his choosing. As observed by Varad Mehta and Adrian Vermeule, “By striving so conspicuously to depoliticize the Supreme Court, he has brought about the very thing he hoped to prevent: No one has done more to politicize the court than the chief justice.”

This isn’t to say that the denial of review was entirely up to Chief Justice Roberts. But his hands sure do appear to be on the wheel.

What the Future Holds

By extending voting deadlines, the Pennsylvania Supreme Court exceeded its authority by changing the time, place, and manner of holding the 2020 election. And I believe a Supreme Court majority would agree with that.

But it’ll take another case in another election for the Supreme Court to reach that decision. For the majority on the Roberts Court, this case is too contentious and the 2020 election is too dangerous to touch.

By failing to act, the Supreme Court has risked the results of future elections and has guaranteed more judicial meddling in Constitutional powers solely vested to state legislatures.