The U.S. Supreme Court on Monday rejected a challenge on the manner in which Pennsylvania conducted its fall election, although one justice expressed concern about potential fraud with mailed-in ballots and two other justices highlighted the problem of slow mail delivery.
The cases were filed last year by supporters of President Trump and argued the Pennsylvania Supreme Court usurped its authority when it ruled that ballots received up to three days after Election Day could still be counted.
The justices on Monday declined to hear the cases, although three justices – Clarence Thomas, Samuel Alito and Neil Gorsuch – argued in dissents that the court should have taken up the issue in order to provide guidance for future elections. All three said the Pennsylvania Supreme Court’s decision did not change the outcome of the election. Biden won Pennsylvania.
“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,” Thomas wrote in a dissent. “This Court ordered the county boards to segregate ballots received later than the deadline set by the legislature. 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.”
Changing the rules “in the middle of the game is bad enough,” Thomas wrote. “Such rule changes by officials who may lack authority to do so is even worse.”
Thomas also criticized the concept of mail ballots, arguing it raises the prospect of cheating.
“As election administrators have long agreed, the risk of fraud is ‘vastly more prevalent’ for mail-in ballots,” Thomas wrote, citing a 2012 New York Times article. “The reason is simple: ‘[A]bsentee voting replaces the oversight that exists at polling places with something akin to an honor system.’”
Thomas quoted Yale Law School Dean Heather Gerken.
“[She] explained in the same New York Times article that absentee voting allows for ‘simpler and more effective alternatives to commit fraud’ on a larger scale, such as stealing absentee ballots or stuffing a ballot box, which explains ‘why all the evidence of stolen elections involves absentee ballots and the like.’”
Citing examples from 1993 in Pennsylvania and 2018 in North Carolina, Thomas wrote, “Fraud is more prevalent with mail-in ballots.”
Alito wrote a dissent joined by Gorsuch, arguing the cases presented “an important and recurring constitutional question.” That question, Alito wrote, is “whether the Elections or Electors Clauses of the United States Constitution” 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.”
“In the cases now before us, a statute enacted by the Pennsylvania Legislature unequivocally requires that mailed ballots be received by 8 p.m. on election day,” Alito wrote. “Nevertheless, the Pennsylvania Supreme Court, citing a provision of the State Constitution mandating that elections ‘be free and equal,’ altered that deadline and ordered that mailed ballots be counted if received up to three days after the election. … Now, the election is over, and there is no reason for refusing to decide the important question that these cases pose.”
The Pennsylvania Supreme Court’s decision, Alito wrote, “had no effect on the outcome” on the presidential election.
“But a decision would provide invaluable guidance for future elections,” Alito wrote.
Alito also expressed concern that the Pennsylvania Supreme Court or another court could extend deadlines in the future. Although the pandemic may cease by the time the next election takes place, Alito wrote, there could still be concerns about slow mail delivery.
“As voting by mail becomes more common and more popular,” he wrote, “the volume of mailed ballots may continue to increase and thus pose delivery problems similar to those anticipated in 2020.”
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Michael Foust has covered the intersection of faith and news for 20 years. His stories have appeared in Baptist Press, Christianity Today, The Christian Post, the Leaf-Chronicle, the Toronto Star and the Knoxville News-Sentinel.