‘Baffling’: Justice Thomas writes forceful dissent in Pennsylvania mail-in ballot case

On Monday, the U.S. Supreme Court rejected a number of cases regarding the 2020 election, including an appeal from Republicans challenging a Pennsylvania Supreme Court ruling that allowed mail-in ballots received up to three days after Election Day to be counted in order to make up for challenges posed by the COVID-19 pandemic.

In response, conservative Justice Clarence Thomas wrote a strongly worded dissent against the court’s decision to throw out the case.

“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 wrote. “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.”

“One wonders what this Court waits for,” wrote Thomas at the end of his 11-page dissent. “We failed to settle this dispute before the election, and thus provide clear rules. 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,” he continued. “By doing nothing, we invite further confusion and erosion of voter confidence. Our fellow citizens deserve better and expect more from us.”

“I respectfully dissent,” Thomas concluded.

Thomas and two other conservative justices, Samuel Alito and Neil Gorsuch, wanted to hear the cases, whereas Chief Justice John Roberts sided with the liberal justices–Stephen Breyer, Sonia Sotomayor, and Elena Kagan–in rejecting them. According to Politico, newly sworn-in Justice Amy Coney Barrett opted not to participate in that vote, saying she had not had enough time to study the issue.

This rejection of the Republicans’ appeal leaves the Pennsylvania Supreme Court’s ruling in place.

Other cases the justices rejected were related to election challenges filed by former President Donald Trump and his allies in swing states, like Pennsylvania, that President Joe Biden won, such as: Arizona, Georgia, Michigan, and Wisconsin.

In writing the dissent for the other side of the court, Justice Samuel Alito said: “The provisions of the federal Constitution conferring on state legislatures, not state courts, the authority to make rules governing federal elections would be meaningless if a state court could override the rules adopted by the legislature simply by claiming that a state constitutional provision gave the courts the authority to make whatever rules it thought appropriate for the conduct of a fair election.”

You can follow Douglas Braff on Twitter @Douglas_P_Braff.

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