The Guardian’s Sam Levine reports:
The US supreme court turned away a lingering challenge from Donald Trump to Pennsylvania’s election rules, putting a final end to a closely-watched case the justices said was now moot.
The outcome was not unexpected. The Trump campaign objected to a decision from the Pennsylvania supreme court in the weeks before election day that overrode the deadline the state legislature set for returning mail-in ballots (8 p.m. on election day) and gave voters three more days to return their ballots. There were about 10,000 ballots that wound up arriving within that 3-day window, not enough to overcome the margin of victory for Joe Biden in the state.
The US supreme court declined to intervene in the case ahead of election day, deadlocking 4-4. Four of the court’s conservative justices – Clarence Thomas, Brett Kavanaugh, Samuel Alito, and Neil Gorsuch – all said at the time they would have granted the request to intervene at the time.
Thomas, Alito, and Gorsuch all said on Monday they would have heard the case. In his dissenting opinion, Thomas said the court needed to clarify for future elections whether state courts could step in and limit rules by the legislature for federal elections (the US constitution says federal election rules must be set by state legislatures).
“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,” he wrote in his dissenting opinion. “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.”
Alito noted that the unique circumstances under which Pennsylvania conducted its elections – a pandemic with surging vote by mail – are not likely to go away any time soon and the court should act now, while it still had a chance.
The conservative justices appear eager to embrace the idea that state courts cannot step in and block state laws for federal elections, an idea that has come to be known as the independent state legislature doctrine. Many experts have expressed alarm at that idea, saying it would empower state lawmakers to pass extremely restrictive voting measures.
Even though the supreme court didn’t address the issue in this case, the idea is a “ticking time bomb,” that could go off in a future case, Richard Hasen, an election law expert at the University of California, Irvine, wrote on his blog.