On Feb. 22, the Supreme Court dismissed the cases challenging late changes made to Pennsylvania election law by parties other than the legislature. The High Court declined to give them a hearing, finally weighing in (or rather refusing to) on a request made before November’s elections. No justice wrote to explain why the Court was correct in not taking the cases. Justice Clarence Thomas, however, wrote a powerful thesis on precisely why it was vitally important that the Court take them. Justices Samuel Alito and Neil Gorsuch also agreed the cases should be heard.
If heard, the cases would have decided who was legally entitled to make late changes to election rules.
Not So Moot …
Thomas, Alito, and Gorsuch did not offer direct opinions on which party should win or lose on election rule changes made by state actors other than legislators. But they did agree that the Supreme Court should take the cases to decide the question. Alito wrote a dissent, signed by Gorsuch, that said “there is no reason for refusing to decide the important question that these cases pose.” Alito went on to explain why, even though the election that generated the dispute was concluded, the cases should still be heard. While Alito wrote in dissent, his was a dispassionate note of caution compared to Thomas’ methodical takedown of his colleagues’ decision to punt.
Thomas acknowledged that his brother and sister justices’ refusal to hear these election cases “is inexplicable.” He insisted that the changes made by state courts and election officials directly implicated the federal Constitution, which gives only state legislatures authority to determine the “Manner” of elections for federal office.
On the question of whether the cases should be heard, Thomas wrote, “Not only did parties on both sides agree that the issue warranted certiorari, but there also was no question that petitioners faced irreparable harm.” He added, “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.”
In addition to the other reasons compelling review, Thomas noted there is now a split in the Circuits, where federal election law is now different in Minnesota, in the Eighth Circuit, than it is in Pennsylvania, in the Third Circuit. He claimed:
“This divide on an issue of undisputed importance would justify certiorari in almost any case. That these cases concern federal elections only further heightens the need for review.”
He went on to say that unclear rules undermine the system of participatory democracy. “An election system lacks clear rules when, as here, different officials dispute who has authority to set or change those rules.” Thomas said if state actors have the authority they claim, that should be made clear. If not, their exercise of unconstitutional authority needs to be stopped “before the consequences become catastrophic.”
Out of Order
Thomas spent several pages hammering home the cases that now, outside the demanding if not impossible schedule of election litigation, is when the Supreme Court should address these issues. He said the Supreme Court needs to consider these issues after the “truncated context” available immediately after an election. The takedown is so thorough, it would require a response in a more political branch. The obvious audience for his words is Chief Justice John Roberts, who is presumed to have voted against taking the case. Thomas concluded:
“Now we again fail to provide clear rules for future elections. The decision to leave election law hidden beneath a shroud of doubt is baffling. By doing nothing, we invite further confusion and erosion of voter confidence. Our fellow citizens deserve better and expect more of us.”
Read more from Scott D. Cosenza.
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