The Supreme Court on Monday rejected an appeal from Pennsylvania Republicans challenging the validity of tardy mail-in ballots, ducking another bid to rehash the 2020 presidential election.
The plaintiffs contend that late-breaking changes to Pennsylvania's election regulations were unconstitutional and helped President Joe Biden win the election. But the Court's ruling would not have affected the outcome of the race in Pennsylvania, since fewer than 10,000 ballots were at issue.
Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch dissented from Monday's order.
The Pennsylvania case is one of many such judicial decisions decried by former president Donald Trump and his Republican allies. Those disputes usually feature a state court or an election panel that made late-breaking changes to election regulations, citing the coronavirus pandemic. Monday's decision means the constitutional question underlying those controversies is unlikely to be answered anytime soon.
"One wonders what this Court waits for," Thomas wrote in his 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. By doing nothing, we invite further confusion and erosion of voter confidence. Our fellow citizens deserve better and expect more of us."
The vote count was six to three in favor of rejecting Trump's appeal. Though Thomas, Alito, and Gorsuch were the only justices who revealed their votes, the overall count can be inferred since it takes just four votes to grant review at the High Court.
Pennsylvania's original rules, which state lawmakers set, required voters to submit mail-in ballots by 8 p.m. on Election Day. The state supreme court relaxed that requirement and added a three-day grace period due to the coronavirus pandemic, but cautioned any ballot that was clearly placed in the mail after Election Day should be discarded.
A provision of Pennsylvania's constitution says elections should be held "in a manner which guarantees, to the greatest degree possible, a voter's right to equal participation in the electoral process." The state supreme court cited that provision as justification for the grace period, and it pointed to COVID transmission rates and slow-moving postal service as threats to "equal participation."
Keystone State Republicans and the Trump campaign said the state court's actions were unconstitutional. They argue that only state legislatures are constitutionally permitted to regulate federal elections.
An evenly divided Supreme Court declined to pause the ruling before Election Day but deferred a decision about hearing the case in full until after the election.
Lawyers for the state said the Court should dismiss the case, arguing that there was nothing left to do since election results have long since been certified. Lawyers for the GOP countered that the dispute is still live because it could become a model for future litigants.
"The question is not going away, and this Court should intervene now to preserve the electoral schemes enacted by state legislatures and to provide guidance to lower courts," GOP lawyers told the justices in legal filings.
Thomas credited that argument in his dissent, noting the lower court decisions that tinkered with the rules are on the books as valid precedents.
"Future cases will arise as lower state courts apply those precedents to justify intervening in elections and changing the rules," Thomas wrote. He added that it would be better to address the underlying constitutional question now, when the Court can move at its leisure, instead of waiting for a future dispute that will almost certainly arise on an emergency basis.
Pennsylvania governor Tom Wolf (D.) said it was time for voters to move on in a Facebook post that followed Monday's decision.
"Pennsylvania had a free and fair election—that's a fact," Wolf wrote.
Biden carried Pennsylvania by more than 80,000 votes. Only 9,400 ballots were at issue Monday, so the case would not have affected the outcome of the election.
Two Trump-appointed justices, Brett Kavanaugh and Amy Coney Barrett, voted against hearing the Pennsylvania case. Senate Democrats accused Trump of rushing Barrett onto the Court to swing election-related controversies to him during her expedited confirmation in October 2020.
The case is No. 20-542 Republican Party of Pennsylvania v. Degraffenreid.