Justice Clarence Thomas issued a vigorous dissent Monday in response to the Supreme Court’s decision not to hear a challenge against the Pennsylvania state court’s ruling that permitted ballots to be counted even if they were received three days after Election Day.
“One wonders what the Court waits for,” Thomas wrote. “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. I respectfully dissent.”
Thomas acknowledged that the case before the Court would not have changed the outcome of the 2020 presidential election, but he also warned that the unwillingness of the Supreme Court to deal with the issues presented in the case now could hold potential problems in the future.
“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,” he said, going on to mention a state Senate race.
“That is not a prescription for confidence,” Thomas continued. “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.”
“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 warned. “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.”
Justices Samuel Alito and Neil Gorsuch also dissented in the case.
“There is ‘reasonable expectation’ that the parties will face the same question in the future,” Alito wrote in his dissent, echoing Thomas’ warning about potential future problems. “And that the question will evade future pre-election review, just as it did in these cases.”
“These cases call out for review, and I respectfully dissent from the Court’s decision to deny certiorari.”