JUST IN – U.S. Supreme Court refuses to review #Pennsylvania election cases. No standing before an election, moot after. Justices Alito, Gorsuch, and Thomas dissent from the denial. Since it only takes 4 justices to hear a case, these cases were only one vote away from getting a full hearing at the SCOTUS. (Source: Disclose.tv tweet) Excerpts in italics with my bolds from dissenting opinions. Full text available at Gateway Pundit post Supreme Court Refuses to Review Pennsylvania Election Cases – Alito, Gorsuch and Thomas Dissent.
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.
Because the judicial system is not well suited to address these kinds of questions in the short time period available immediately after an election, we ought to use available cases outside that truncated context to address these admittedly important questions. Here, we have the opportunity to do so almost two years before the next federal election cycle. Our refusal to do so by hearing these cases is befuddling. There is a clear split on an issue of such great importance that both sides previously asked us to grant certiorari. And there is no dispute that the claim is sufficiently meritorious to warrant review. By voting to grant emergency relief in October, four Justices made clear that they think petitioners are likely to prevail. Despite pressing for review in October, respondents now ask us not to grant certiorari because they think the cases are moot. That argument fails.
The issue presented is capable of repetition, yet evades review. This exception to mootness, which the Court routinely invokes in election cases, “applies where (1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.”
And there is a reasonable expectation that these petitioners—the State Republican Party and legislators—will again confront non legislative officials altering election rules. In fact, various petitions claim that no fewer than four other decisions of the Pennsylvania Supreme Court implicate the same issue. Future cases will arise as lower state courts apply those precedents to justify intervening in elections and changing the rules.
One wonders what this Court waits for. 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.
Justice Alito, joined by Justice Gorsuch:
Now, the election is over, and there is no reason for refusing to decide the important question that these cases pose. . .A decision in these cases would not have any implications regarding the 2020 election. . . But a decision would provide invaluable guidance for future elections.
Some respondents contend that the completion of the 2020 election rendered these cases moot and that they do not fall within the mootness exception for cases that present questions that are “capable of repetition” but would other-wise evade review. They argue that the Pennsylvania Supreme Court’s decision “arose from an extraordinary and unprecedented confluence of circumstances”—specifically, the COVID–19 pandemic, an increase in mail-in voting, and Postal Service delays—and that such a perfect storm is not likely to recur.
That argument fails for three reasons. First, it does not acknowledge the breadth of the Pennsylvania Supreme Court’s decision. That decision claims that a state constitutional provision guaranteeing “free and equal” elections gives the Pennsylvania courts the authority to override even very specific and unambiguous rules adopted by the legislature for the conduct of federal elections. . .That issue is surely capable of repetition in future elections. Indeed, it would be surprising if parties who are unhappy with the legislature’s rules do not invoke this decision and ask the state courts to substitute rules that they find more advantageous.
Second, the suggestion that we are unlikely to see a recurrence of the exact circumstances we saw this fall misunderstands the applicable legal standard. In order for a question to be capable of repetition, it is not necessary to predict that history will repeat itself at a very high level of specificity.
Third, it is highly speculative to forecast that the Pennsylvania Supreme Court will not find that conditions at the time of a future federal election are materially similar to those last fall. The primary election for Pennsylvania congressional candidates is scheduled to occur in 15 months,and the rules for the conduct of elections should be established well in advance of the day of an election. . .As voting by mail becomes more common and more popular, the volume of mailed ballots may continue to increase and thus pose delivery problems similar to those anticipated in 2020.
For these reasons, the cases now before us are not moot. There is a “reasonable expectation” that the parties will face the same question in the future. . ., 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.
Background: SCOTUS Conference on Election Integrity
Election Integrity is up for conference at SCOTUS on Friday. The petition to be discussed is the complaint by the Pennsylvania legislature against the state Election Officer Boockvar, a proceeding that began on Sept. 28, 2020. The petition makes clear the intent is not to overturn any completed election, but to ensure future elections are conducted according to laws in force. From scotusblog:
Republican Party of Pennsylvania v. Boockvar
Issue: Whether the Pennsylvania Supreme Court usurped the Pennsylvania General Assembly’s plenary authority to “direct [the] Manner” for appointing electors for president and vice president under Article II of the Constitution, as well as the assembly’s broad power to prescribe “[t]he Times, Places, and Manner” for congressional elections under Article I, when the court issued a ruling requiring the state to count absentee ballots that arrive up to three days after Election Day as long as they are not clearly postmarked after Election Day; and (2) whether that decision is preempted by federal statutes that establish a uniform nationwide federal Election Day.
The petition to be discussed is the December 15, 2020 brief from the petitioners Republican Party:
Respondents’ Oppositions only confirm what some
Respondents told the Court just weeks ago: that the
Court should grant review and resolve the important
and recurring questions presented in this case. Pa.
Dems. Br. 9, No. 20A54 (Oct. 5, 2020) (advocating for
review because the questions presented are “of
overwhelming importance for States and voters across
the country”); Sec’y Br. 2-3, No. 20A54 (Oct. 5, 2020).
Respondents uniformly fail to mention that after the
Republican Party of Pennsylvania (RPP) filed its
Petition but more than a month before Respondents
filed their Oppositions, the Eighth Circuit created a
split on the question whether the Electors Clause
constrains state courts from altering election
deadlines enacted by state legislatures. See Carson v.
Simon, 978 F.3d 1051 (8th Cir. 2020). Instead,
Respondents seek to obfuscate the matter with a
welter of vehicle arguments turning on the fact that
Pennsylvania has certified the results of the 2020
general election. In reality, however, this case is an
ideal vehicle, in part precisely because it will not affect
the outcome of this election.
Indeed, this Court has repeatedly emphasized the
imperative of settling the governing rules in advance
of the next election, in order to promote the public
“[c]onfidence in the integrity of our electoral processes
[that] is essential to the functioning of our
participatory democracy.” Purcell v. Gonzalez, 549
U.S. 1, 4 (2006). This case presents a vital and unique
opportunity to do precisely that. By resolving the
important and recurring questions now, the Court can
provide desperately needed guidance to state
legislatures and courts across the country outside the
context of a hotly disputed election and before the next
election. The alternative is for the Court to leave
legislatures and courts with a lack of advance
guidance and clarity regarding the controlling law—
only to be drawn into answering these questions in
future after-the-fact litigation over a contested
election, with the accompanying time pressures and
perceptions of partisan interest.
Note: As reported in Gateway Pundit, legally required chain of custody for ballots was broken in every battleground state and in other states as well.
President Trump was ahead in Pennsylvania by nearly 700,000 votes.
In Michigan Trump was ahead by over 300,000 votes.
In Wisconsin Trump was ahead by 120,000 votes.
Trump was also ahead in Georgia and Nevada.
And President Trump already trounced Joe Biden in Ohio, Florida, and Iowa — three states that ALWAYS go to the eventual presidential winner.
Then suddenly Pennsylvania, Michigan, and Wisconsin announced they would not be announcing their winner that night. This was an unprecedented and coordinated move in US history.
Then many crimes occurred to swing the election to Biden, but perhaps the greatest crime was the lack of dual controls and chain of custody records that ensure a fair and free election. At a high level, when ballots are transferred or changes are made in voting machines, these moves and changes should be done with two individuals present (dual control), one from each party, and the movements of ballots should be recorded.
So when states inserted drop boxes into the election, these changes first needed to be updated through the legislature, which they weren’t, and all movements from the time when the ballots were inserted into drop boxes needed to be recorded, which they weren’t.