Clarence Thomas is right about election lawsuits, but he’d be better off without the politicking

Yesterday, the Supreme Court stopped consideration of all lawsuits in the 2020 election. Justice Clarence Thomas dissented. I think he has a point. I just wish he’d made it better.

Before you decide to have my innards roasted on a spit, let’s talk about principle. My principle is to evaluate arguments regardless of whether I like the results or not. If you only listen to arguments that reinforce your own point of view, you’ve got a closed mind. And if you never think people who disagree with you make a good point, you are, plain and simple, a partisan.

There are plenty of arguments against considering any of the election lawsuits. Any decisions now are, by definition, moot — they won’t change the election result. Reconsidering them will once again bring up accusations of fraud for which there is no actual evidence. It will rile up Trump’s base and cast doubt on Biden’s legitimacy. Clarence Thomas is conservative and his wife is a conservative activist.

You can keep going in this vein, but none of these arguments bear on the more important question for the Supreme Court: do those bringing suit in Pennsylvania have a point worth considering, and will considering it accomplish anything?

I hope we are not now considering what the Supreme Court should decide on based on what would be comfortable or popular or friendly to one party or the other, but rather on whether the issue is worthy of a decision.

Reviewing Justice Thomas’ argument

Here is the context. The Pennsylvania Supreme Court decided to extend the deadline for receipt of mail ballots by three days beyond Election Day, even though the legislature had set the deadline for receipt at 8 p.m. on Election Day. The number of ballots received in those three days was far too small to tip the election to Trump, even if every one of the late ballots was a Biden vote, so this decision will not and could not affect the election result. But a question remains — can state officials change ballot rules during an election?

At issue here is whether the Supreme Court should “grant certiorari,” which means agreeing to hear the case. Here’s most of what Justice Thomas wrote, with my commentary:

JUSTICE THOMAS, dissenting from the denial of certiorari. 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. 

A clear statement of the issue: do officials outside the state legislature have the authority to change election rules? I agree with Justice Thomas that this is a question worth ruling on.

I

Like most States, Pennsylvania has a long history of limiting the use of mail-in ballots. But in October 2019, the Pennsylvania Legislature overhauled its election laws. Relevant here, it gave all voters the option of voting by mail, and it extended the deadline for officials to receive mail ballots by several days to 8 p.m. on election day. 2019 Pa. Leg. Serv. Act 2019–77. Then, in response to COVID–19, the legislature again amended the law but decided not to extend the receipt deadline further. See 2020 Pa. Leg. Serv. Act 2020–12.

Displeased with that decision, the Pennsylvania Democratic Party sued in state court. It argued that the court could extend the deadline through a vague clause in theState Constitution providing, in relevant part, that “[e]lections shall be free and equal.” Art. I, §5. The Pennsylvania Supreme Court agreed. On September 17, it held that this“free and equal” provision enabled the court to extend the deadline three days to accommodate concerns about postal delays.

Petitioners promptly moved for emergency relief, filing an application for a stay on September 28. That application easily met our criteria for granting relief. See Hollingsworth v. Perry, 558 U. S. 183, 190 (2010) (per curiam).

Not only did parties on both sides agree that the issue warranted certiorari, but there also was no question that petitioners faced irreparable harm. See Maryland v. King, 567 

U. S. 1301, 1303 (2012) (ROBERTS, C. J., in chambers) (“‘[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 respectof any attempt to circumscribe the legislative power” to regulate federal elections. McPherson v. Blacker, 146 U. S. 1, 25 (1892). 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 ofthe legislature.” Bush v. Gore, 531 U. S. 98, 120 (2000) (Rehnquist, C. J., concurring). Despite petitioners’ strong showing that they were entitled to relief, we divided 4–4and thus failed to act. Scarnati v. Boockvar, ante, p. ___.

Four days later, petitioners filed the first of these petitions and moved to expedite consideration so the Court could decide the merits before election day. But by that time, election day was just over a week away. So we denied the motion to expedite even though the question was of “national importance” and there was a “strong likelihood that the State Supreme Court decision violates the Federal Constitution.” Republican Party of Pa. v. Boockvar, ante, at 3 (statement of ALITO, J.). 

A reasonably unbiased statement of the events leading up to this decision. While states make their own rules, federal courts can review those rules if they are arbitrary and unfair. The decision was certainly urgent, but the court refused to consider it.

 II

Now that the petitions are before us under the normal briefing schedule, I see no reason to avoid them. Indeed, the day after we denied petitioner’s motion to expedite in No. 20–542, the case became even more worthy of review. The Eighth Circuit split from the Pennsylvania Supreme Court, granting a preliminary injunction against an attempt by the Minnesota Secretary of State to extend the legislature’s deadline to receive ballots by seven days. Carson v. Simon, 978 F. 3d 1051, 1059–1060, 1062 (2020). 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. 

The Supreme Court steps in when lower courts disagree. Thomas claims that is what happened here.

Now we get into the “why is this important” section.

A

Elections are “of the most fundamental significance under our constitutional structure.” See Illinois Bd. of Elections v. Socialist Workers Party, 440 U. S. 173, 184 (1979). Through them, we exercise self-government. But elections enable self-governance only when they include processes that “giv[e] citizens (including the losing candidates and their supporters) confidence in the fairness of the election.” See Democratic National Committee v. Wisconsin State Legislature, ante, at 3 (KAVANAUGH, J., concurring in denial of application to vacate stay); accord, Purcell v. Gonzalez, 549 

U. S. 1, 4 (2006) (per curiam) (“Confidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy”).

Unclear rules threaten to undermine this system. They sow confusion and ultimately dampen confidence in the integrity and fairness of elections. To prevent confusion, we have thus repeatedly—although not as consistently as we should—blocked rule changes made by courts close to an election. See Purcell, supra.¹ 

An election system lacks clear rules when, as here, different officials dispute who has authority to set or change those rules. This kind of dispute brews confusion because voters may not know which rules to follow. Even worse, with more than one system of rules in place, competing candidates might each declare victory under different sets of rules. 

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. This Court ordered the county boards to segregate ballots received later than the deadline set by the legislature. Order in Republican Party of Pa. v. Boockvar, No. 20A84. And none of the parties contend that those ballots made an outcome-determinative difference in any relevant federal election. 

But we may not be so lucky in the future. Indeed, a separate decision by the Pennsylvania Supreme Court may have already altered an election result. A different petition argues that after election day the Pennsylvania Supreme Court nullified the legislative requirement that voters write the date on mail-in ballots. See Pet. for Cert., O. T. 2020, No. 20–845. According to public reports, one candidate for a state senate seat claimed victory under what she contended was the legislative rule that dates must be included on the ballots. A federal court noted that this candidate would win by 93 votes under that rule. Ziccarelli v. Allegheny Cty. Bd. of Elections, 2021 WL 101683, *1 (WD Pa., Jan. 12, 2021). A second candidate claimed victory under the contrary rule announced by the Pennsylvania SupremeCourt. He was seated. 

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. When those changes alter election results, they can severely damage the electoral system on which our self-governance so heavily depends. If state officials have the authority they have claimed, we need to make it clear. If not, we need to put an end to this practice now before the consequences become catastrophic.

Thomas argues that changing the rules in the middle of the election creates confusion and the possibility for unfairness. I agree. If you are a Biden voter and the state court had changed the rules enough to invalidate Biden votes and turn the state over to Trump, would you think that was fair? That’s reason enough to consider the question.

B

At first blush, it may seem reasonable to address this question when it next arises. After all, the 2020 election is now over, and the Pennsylvania Supreme Court’s decision was not outcome determinative for any federal election.But whatever force that argument has in other contexts, it fails in the context of elections. For at least three reasons, the Judiciary is ill equipped to address problems—including those caused by improper rule changes—through post-election litigation. First, postelection litigation is truncated by firm timelines. That is especially true for Presidential elections, which are governed by the Electoral Count Act, passed in1887. That Act sets federal elections for the day after the first Monday in November—last year, November 3. . . . . Under a statutory safe-harbor provision, a State has about five weeks to address all disputes and make a “final determination” of electors if it wants that decision to “be conclusive.” . . . Last year’s deadline fell on December 8, and the Electoral College voted just six days later. . . . Five to six weeks for judicial testing is difficult enough for straightforward cases. For factually complex cases, compressing discovery, testimony, and appeals into this timeline is virtually impossible.

Why not consider this question now when there is more time to review it thoroughly? It won’t affect the election, but might affect future elections. A decision now will make it easier for lower courts to make a clear determination next time there is a problem like this.

Second, this timeframe imposes especially daunting constraints when combined with the expanded use of mail-in ballots. Voting by mail was traditionally limited to voters who had defined, well-documented reasons to be absent. See, e.g., Moreton, Note, Voting by Mail, 58 S. Cal. L. Rev. 1261, 1261–1264 (1985). In recent years, however, manyStates have become more permissive, a trend greatly accelerated by COVID–19. In Pennsylvania, for example, mail in ballots composed just 4% of ballots cast in 2018. But the legislature dramatically expanded the process in 2019, thereby increasing the mail-in ballots cast in 2020 to 38%.

This expansion impedes postelection judicial review because litigation about mail-in ballots is substantially more complicated. For one thing, as election administrators have long agreed, the risk of fraud is “vastly more prevalent” for mail-in ballots. Liptak, Error and Fraud at Issue as Absentee Voting Rises, N. Y. Times, Oct. 6, 2012. The reason is simple: “[A]bsentee voting replaces the oversight that exists at polling places with something akin to an honor system.” Ibid. Heather Gerken, now dean of Yale Law School, explained in the same New York Times article that absentee voting allows for “simpler and more effective alternatives to commit fraud” on a larger scale, such as stealing absentee ballots or stuffing a ballot box, which explains “‘why all the evidence of stolen elections involves absentee ballots and the like.’” Ibid. The same article states that “[v]oting by mail is now common enough and problematic enough that election experts say there have been multiple elections in which no one can say with confidence which candidate was the deserved winner.” Ibid. 

Here is the one place where Thomas goes off the rails. A New York Times article from 2012 does not constitute evidence in this case, and suggesting fraud where none has been detected is well outside the appropriate role for a Supreme Court Justice.

Pennsylvania knows this well. Even before widespread absentee voting, a federal court had reversed the result of a state senate election in Philadelphia after finding that the supposedly prevailing candidate “conducted an illegal absentee ballot conspiracy and that the [election officials] covertly facilitated the scheme with the specific purpose of ensuring a victory for” that candidate. Marks v. Stinson, 1994 WL 146113, *29, *36 (ED Pa., Apr. 26, 1994). This problem is not unique to Pennsylvania, and it has not gone away. Two years ago, a congressional election in North Carolina was thrown out in the face of evidence of tampering with absentee ballots. Because fraud is more prevalent with mail-in ballots, increased use of those ballots raises the likelihood that courts will be asked to adjudicate questions that go to the heart of election confidence.² 

Now we’re into conspiracy theories and speculation. There is no evidence for any of these theories of fraud in the 2020 Presidential election in Pennsylvania.

Fraud is not the only aspect of mail-in ballots that complicates postelection judicial review. Also relevant are the corresponding safeguards that States put in place to ameliorate that heightened risk of fraud. To balance the “strong interest” of ballot access with the “‘compelling interest in preserving the integrity of [the] election process,’” Purcell, 549 U. S., at 4, many States have expanded mail-in ballots but sought to deter fraud—and create mechanisms to detect it—by requiring voters to return ballots in signed, dated secrecy envelopes. Some States also require witness or notary signatures. Tallying these ballots tends to be more labor intensive, involves a high degree of subjective judgment (e.g., verifying signatures), and typically leads to a far higher rate of ballot challenges and rejections. Litigation over these ballots can require substantial discovery and labor-intensive fact review. In some cases, it might require sifting through hundreds of thousands or millions of ballots. It also may require subjective judgment calls about the validity of thousands of ballots. Judicial review in this situation is difficult enough even when the rules are clear and the number of challenged ballots small. Adding a dispute about who can set or change the rules greatly exacerbates the problem.

Still more fraud-mongering without evidence. This doesn’t belong in this argument.

Third, and perhaps most significant, postelection litigation sometimes forces courts to make policy decisions that they have no business making. For example, 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—such as receipt deadlines—that the legislature believes are necessary for election integrity. 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. Andino v. Middleton, ante, p. ___. Settling rules well in advance of an election rather than relying on postelection litigation ensures that courts are not put in that untenable position.

This is a more persuasive argument — that by deciding this issue now, the court can avoid having to decide it in a politically charged environment later.

In short, the postelection system of judicial review is at most suitable for garden-variety disputes. It generally cannot restore the state of affairs before an election. And it is often incapable of testing allegations of systemic maladministration, voter suppression, or fraud that go to the heart of public confidence in election results. That is obviously problematic for allegations backed by substantial evidence. But the same is true where allegations are incorrect. After all, “[c]onfidence in the integrity of our electoral process is essential to the functioning of our participatory democracy.” Purcell, supra, at 4; cf. McCutcheon v. Federal Election Comm’n, 572 U. S. 185, 191, 206–207 (2014) (plurality opinion) (identifying a compelling interest in rooting out the mere “appearance of corruption” in the political process). An incorrect allegation, left to fester without a robust mechanism to test and disprove it, “drives honest citizens out of the democratic process and breeds distrust of our government.” Purcell, supra, at 4. 

I’m not convinced there was fraud. But I am convinced the question of whether officials can change the rules in the middle of an election is worth deciding.

I’ll omit the rest of the opinion, the thrust of which is, it’s time to decide this question.

The part that troubles people most is actually in a footnote. Here it is:

We are fortunate that many of the cases we have seen alleged only improper rule changes, not fraud. But that observation provides only small comfort. An election free from strong evidence of systemic fraud is not alone sufficient for election confidence. Also important is the assurance that fraud will not go undetected. 

Why are you talking about fraud, Justice Thomas, when the election is “free from strong evidence of systemic fraud?” This is just read meat for Trump voters, irrelevant to the argument.

We should decide these issues. Justice Thomas should get off his soapbox.

Thomas is right about deciding the question of who can change election rules and when. I want clarity on this. Don’t you?

It would help make things clearer moving forward and avoid more elections where millions of people doubt the result, as happened in 2020.

Even so, I think Thomas overstepped the bounds of his role in sharing speculations about fraud that have nothing to do with evidence or with the questions in this case.

What do you think?