Three cases brought by Pennsylvania Republican leaders challenging different aspects of last year’s presidential election here have been turned aside by the Supreme Court of the United States.
Three justices signed on to dissenting opinions on the two of the cases, however, meaning the vote to hear the cases fell short by just one vote.
None of the cases involved in Monday’s orders contained specific allegations — let alone evidence — of votes being deliberately cast illegally. Instead they took issue with Pennsylvania’s processes for the casting and counting of ballots from legally registered voters.
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The court’s decisions to set the cases aside means, for now, any clean-up of Pennsylvania election law sits squarely in the hands of the Republican-dominated legislature and Democratic Gov. Tom Wolf, and whether or not they can come to an agreement.
In orders handed down Monday, the court’s majority said that it would not hear separate appeals by the Republican Party of Pennsylvania, leaders of the Republican majority caucuses in the state House and Senate, or a third case where the lead plaintiff was U.S. Rep. MIke Kelly, a Republican congressman from Butler County.
The plaintiffs in the first two cases had wanted the court to take up the question of whether the Pennsylvania Supreme Court had overstepped its legal authority in issuing orders this fall that extended the period for receipt of mail-in ballots till Nov. 6, 2020, or three days after Election Day.
The GOP plaintiffs in both cases said that special, one-time extension of the ballot receipt date violated constitutional clauses that reserve all power for setting the time, place and manner of elections to the legislature, and also violated federal statutes setting a uniform nationwide federal election day.
The court also refused to the case brought by Kelly and a small group of Republican voters that alleged the creation of Pennsylvania’s no-excuse, mail-in balloting system in 2019 – a system that Democrats used effectively to drive new voters to the polls last year – was enacted in violation of the state Constitution.
Kelly and his fellow plaintiffs noted that the legislature had started a process to expand voting-by-mail through the constitutional amendment process in the 2019-20 legislative session – which they argued is the only legally permissible way to do it – before it was enacted as part of a broader election reform statute in October of 2019.
President Joe Biden won Pennsylvania’s presidential vote over Republican incumbent Donald J. Trump by a margin of more than 80,000 votes, netting 50.01 percent of all votes cast.
That result has been certified, executed and is in the books with prior courts having ruled that the challenge brought by Kelly – brought after the votes were cast and counted – improperly asked the court to change the rules after that contest had played out, disenfranchising millions.
Attorneys in all of the cases have since conceded that the issues they raise will now affect Pennsylvania’s elections going forward, In the event that the court decides to consider any of the cases after that, it would likely only do so in terms of their implications for future elections.
That argument rung throughout the dissents filed by Justices Clarence Thomas, Samuel Alito and Neil Gorsuch, with Thomas writing in part:
“That decision (by state officials and the courts) 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 non-legislative officials have to set election rules, and to do so well before the next election cycle.
“The refusal to do so is inexplicable,” Thomas added, noting that federal circuit courts of appeal have now ruled differently on such ballot receipt extensions in different parts of the country.
Thomas also wrote that, as a practical matter, it is too difficult for the court to take up complex election law cases in the heat of a hotly-contested campaign, and it should be done now.
“One wonders what this Court waits for,” Thomas concluded.
“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. By doing nothing, we invite further confusion and erosion of voter confidence. Our fellow citizens deserve better and expect more of us.”
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