SCOTUS plays Catch 22 with challenges to Pennsylvania election

The Supreme Court has signaled that anything goes when it comes to jiggering election rules in favor of the Democrats.  Challenge illegalities in the last election with a good case, and you're stuck in a classic Catch-22 situation, as Ace pithily sums it up:

Before the inauguration: Not timely

After the certification: Moot

The two cases the Court declined to hear challenged the last-minute changes to election law in Pennsylvania.  Never mind that the U.S. Constitution explicitly gives state legislatures the power to prescribe "The Times, Places and Manner of holding Elections for Senators and Representatives"; the Supreme Court just allowed the Pennsylvania Supreme Court to change the rules for the November 2020 federal election by declaring the case moot.

Justices Thomas and Alito wrote dissenting opinions, with Justice Gorsuch concurring with Alito.  Tyler O'Neil summarizes:

Thomas argued that the cases Republican Party of Pennsylvania v. Veronica DeGraffenreid (2021) and Jake Corman v. Pennsylvania Democratic Party (2021) presented "a clear example" of election law issues that the Supreme Court should put to rest. "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."

"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," Thomas argued. "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."

Alito also wrote a dissent, which Justice Neil Gorsuch joined. Alito argued that these cases "present an important and recurring constitutional question: whether the Elections or Electors Clauses of the United States Constitution... are violated when a state court holds that a state constitutional provision overrides a state statute governing the manner in which a federal election is to be conducted. That question has divided the lower courts,* and our review at this time would be greatly beneficial."

This means that SCOTUS has deep-sixed every election challenge, according to Julie Kelley:


Looking at order list now. It looks like SCOTUS killed every election lawsuit filed by Trump and other parties. Only Thomas, Gorsuch, Alito dissented in rejecting PA GOP v PA SOS case. We have no institution to protect our elections. Thanks Barrett and Kavanaugh!

For whatever reasons, the Roberts Court is shying away from change, from exercise of the Court's authority and duty to enforce the Constitution.  The emphasis on following precedent through the doctrine of stare decisis is helping to ratify abuses.

Image credit: Flickr CC BY-2.0 license

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