I don’t know anyone who is angrier than I am about the Big Lie that Donald Trump tried to use to steal the election — a lie that motivated a mob to storm the Capitol for the express purpose of disrupting the electoral vote count on Trump’s behalf.
But I see a lot of lazy takes about Clarence Thomas’s dissent (click and scroll to the end) from the Supreme Court’s decision not to hear certain election-related challenges.
This post is not the place to dive into the merits and demerits of the specific litigation. Suffice it to say that I disagree with this take:
Thomas, Alito, and Gorsuch endorse the radical proposition that SCOTUS has authority to overturn the Pennsylvania Supreme Court's interpretation of the Pennsylvania Constitution.
Thomas claims mail voting is inherently suspect, unreliable, and rife with fraud. pic.twitter.com/DpQwPgl20Q
— Mark Joseph Stern (@mjs_DC) February 22, 2021
That’s not what Justice Thomas says, actually. He says “the risk of fraud is ‘vastly more prevalent’ for mail-in ballots” (my italics) — and it’s hard to disagree.
Mr. Stern’s hot take and mischaracterization of Justice Thomas’s opinion aside, this is a federal constitutional issue. As Justice Alito states in his separate dissent, the cases “present an important and recurring constitutional question: whether the Elections or Electors Clauses of the United States Constitution, Art. I, §4, cl. 1; Art. II, §1, cl. 2, 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.” Justice Thomas explains: “The Constitution gives to each state legislature authority to determine the ‘Manner’ of federal elections.” I have always said that the one Trump argument that might have had some merit — but which was not enough to swing the election to Trump even in Pennsylvania alone — is the argument that the Pennsylvania state supreme court has no authority to extend the deadline by which ballots could be submitted.
I do not here express an opinion on whether that is a winning argument. Clearly, at a minimum, a state legislature has authority to determine that electors shall be chosen by a vote of the citizens of the state. I don’t believe that necessarily extends to every jot and tittle of how the election is conducted, but I don’t find it to be a frivolous argument that it extends to a hard and fast statutory deadline for the submission of ballots, for example. In the usual situation, a state constitution trumps any legislative action, but in an area where a state legislature is given primacy by the federal Constitution, I don’t think a state supreme court has authority to overrule the legislature. So the only remaining issue is whether such a deadline is part of the “Manner” of the election. Maybe it is. Maybe it isn’t. I would not be surprised to find a majority of the Supreme Court saying it is.
My beef with the Court’s majority is its finding that these cases are “moot.” There is an exception to mootness for cases involving situations that are likely to recur but that evade review. This strikes me as exactly such a case. If you think this issue is not going to come up again, you have not been paying attention. Why not get some hard and fast rules about what authority state legislatures have under the federal Constitution — whatever those rules may be — to avoid the potential disaster coming down the road at us?