Justice Clarence Thomas wrote a reasonable dissent — and Democrats and Lamestream fleas jumped all over it — without, apparently, reading it first

© 2021 Peter Free

 

24 February 2021

 

 

Caveat

 

What follows is not for intellectually lazy people.

 

Readers will have to read and evaluate a member of the US Supreme Court's reasoning.

 

If, however, you take the time to do that — you will more fully appreciate how intellectually perverted the American Lamestream has become.

 

 

To wit, today . . .

 

We assess the cascade of contemptuously delivered — Lamestream-originated — chastisement of Justice Clarence Thomas's eminently reasonable dissent — which is attached to the Supreme Court's most recent 'cert' denial, in regard to two cases spawned by the 2020 presidential election.

 

 

Let us take calm refuge in Reason's quasi-holy sanctuary

 

Faced with yet another US Supreme Court refusal to take up one of the many 2020 election disputes — Justice Clarence Thomas took the following, rationally delivered societal position against such a casual avoidance of judicial duty.

 

Below are the most pertinent extracts of his dissent.

 

His thinking has been reviled, by Democrats and the Lamestream, solely because:

 

 

they hint at what Democrats call "baseless" (actually mostly uninvestigated) allegations of 2020 election "fraud"

 

and

 

Thomas' reasoning casts doubt upon the societal wisdom of simply assuming (in the absence of appropriate verification) that mailed-in ballots are all validly originated.

 

 

I have broken Thomas' words up into narrower paragraphs, so as to make online reading more efficient.

 

I have also inserted the dissent's page numbers, on which these passages appear, inside brackets. Those bracketed page numbers apply to all the quoted passages above them:

 

 

The Constitution gives to each state legislature authority to determine the “Manner” of federal elections. Art. I, §4, cl. 1; Art. II, §1, cl. 2.

 

Yet both before and after the 2020 election, nonlegislative officials in various States took it upon themselves to set the rules instead. As a result, we received an unusually high number of petitions and emergency applications contesting those changes.

 

The petitions here present a clear example. The Pennsylvania Legislature established an unambiguous deadline for receiving mail-in ballots: 8 p.m. on election day.

 

Dissatisfied, the Pennsylvania Supreme Court extended that deadline by three days. The court also ordered officials to count ballots received by the new deadline even if there was no evidence—such as a postmark—that the ballots were mailed by election day.

 

That decision to rewrite the rules seems to have affected too few ballots to change the outcome of any federal election. But that may not be the case in the future.

 

These cases provide us with an ideal opportunity to address just what authority nonlegislative officials have to set election rules, and to do so well before the next election cycle.

 

The refusal to do so is inexplicable. [pages 1-2]

 

Elections are “of the most fundamental significance under our constitutional structure.” See Illinois Bd. of Elections v. Socialist Workers Party, 440 U. S. 173, 184 (1979).

 

Through them, we exercise self-government. But elections enable self-governance only when they include processes that “giv[e] citizens (including the losing candidates and their supporters) confidence in the fairness of the election.”

 

See Democratic National Committee v. Wisconsin State Legislature, ante, at 3 (KAVANAUGH, J., concurring in denial of application to vacate stay); accord, Purcell v. Gonzalez, 549 U. S. 1, 4 (2006) (per curiam) (“Confidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy”).

 

Unclear rules threaten to undermine this system. They sow confusion and ultimately dampen confidence in the integrity and fairness of elections.

 

To prevent confusion, we have thus repeatedly—although not as consistently as we should—blocked rule changes made by courts close to an election. See Purcell, supra. [page 4]

 

An election system lacks clear rules when, as here, different officials dispute who has authority to set or change those rules. This kind of dispute brews confusion because voters may not know which rules to follow.

 

Even worse, with more than one system of rules in place, competing candidates might each declare victory under different sets of rules. [page 5]

 

At first blush, it may seem reasonable to address this question when it next arises. After all, the 2020 election is now over, and the Pennsylvania Supreme Court’s decision was not outcome determinative for any federal election.

 

But whatever force that argument has in other contexts, it fails in the context of elections. For at least three reasons, the Judiciary is ill equipped to address problems—including those caused by improper rule changes—through postelection litigation.

 

First, postelection litigation is truncated by firm timelines. That is especially true for Presidential elections . . . .

 

Second, this timeframe imposes especially daunting constraints when combined with the expanded use of mail-in ballots. Voting by mail was traditionally limited to voters who had defined, well-documented reasons to be absent.

 

See, e.g., Moreton, Note, Voting by Mail, 58 S. Cal. L. Rev. 1261, 1261–1264 (1985).

 

In recent years, however, many States have become more permissive, a trend greatly accelerated by COVID–19.

 

In Pennsylvania, for example, mail-in ballots composed just 4% of ballots cast in 2018. But the legislature dramatically expanded the process in 2019, thereby increasing the mail-in ballots cast in 2020 to 38%.

 

This expansion impedes postelection judicial review because litigation about mail-in ballots is substantially more complicated.

 

For one thing, as election administrators have long agreed, the risk of fraud is “vastly more prevalent” for mail-in ballots. Liptak, Error and Fraud at Issue as Absentee Voting Rises, N. Y. Times, Oct. 6, 2012.

 

The reason is simple: “[A]bsentee voting replaces the oversight that existsat polling places with something akin to an honor system.” [pages 5-7]

 

Fraud is not the only aspect of mail-in ballots that complicates postelection judicial review.

 

Also relevant are the corresponding safeguards that States put in place to ameliorate that heightened risk of fraud. To balance the “strong interest” of ballot access with the “‘compelling interest in preserving the integrity of [the] election process,’” Purcell, 549 U. S., at 4, many States have expanded mail-in ballots but sought to deter fraud—and create mechanisms to detect it—by requiring voters to return ballots in signed, dated secrecy envelopes. Some States also require witness or notary signatures.

 

Tallying these ballots tends to be more labor intensive, involves a high degree of subjective judgment (e.g., verifying signatures), and typically leads to a far higher rate of ballot challenges and rejections.

 

Litigation over these ballots can require substantial discovery and labor-intensive fact review. In some cases, it might require sifting through hundreds of thousands or millions of ballots. It also may require subjective judgment calls about the validity of thousands of ballots.

 

Judicial review in this situation is difficult enough even when the rules are clear and the number of challenged ballots small.

 

Adding a dispute about who can set or change the rules greatly exacerbates the problem. [page 8]

 

Third, and perhaps most significant, postelection litigation sometimes forces courts to make policy decisions that they have no business making.

 

For example, when an official has improperly changed the rules, but voters have already relied on that change, courts must choose between potentially disenfranchising a subset of voters and enforcing the election provisions—such as receipt deadlines—that the legislature believes are necessary for election integrity.

 

That occurred last year. After a court wrongly altered South Carolina’s witness requirement for absentee ballots, this Court largely reinstated the original rule, but declined to apply it to ballots already cast. Andino v. Middleton, ante, p. ___.

 

Settling rules well in advance of an election rather than relying on postelection litigation ensures that courts are not put in that untenable position.

 

In short, the postelection system of judicial review is at most suitable for garden-variety disputes. It generally cannot restore the state of affairs before an election.

 

And it is often incapable of testing allegations of systemic maladministration, voter suppression, or fraud that go to the heart of public confidence in election results.

 

That is obviously problematic for allegations backed by substantial evidence. But the same is true where allegations are incorrect.

 

An incorrect allegation, left to fester without a robust mechanism to test and disprove it, “drives honest citizens out of the democratic process and breeds distrust of our government.” Purcell, supra, at 4. [pages 8-9]

 

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.”

 

Davis v. Federal Election Comm’n, 554 U. S. 724, 735 (2008) (internal quotation marks omitted) (resolving a dispute from the 2006 election); see also Anderson v. Celebrezze, 460 U. S. 780, 784, and n. 3 (1983) (resolving a dispute from the 1980 election).

 

Here, the Pennsylvania Supreme Court issued its decision about six weeks before the election, leaving little time for review in this Court.

 

And there is a reasonable expectation that these petitioners—the State Republican Party and legislators—will again confront nonlegislative 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. [pages 9-10]

 

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. [page 10]

 

Republican Party of Pennsylvania v. Veronica Degraffenreid, Acting Secretary of Pennsylvania on Petitions for Writs of Certiorari (Nos. 20-542 and 20-574), 592 U. S. ____ (2021) (22 February 2021) (Thomas, dissenting) (pertinent page numbers inserted within above text)

 

 

One can legitimately argue with Justice Thomas . . .

 

. . . but only by invoking mootness, or some other Doctrine of the Dodge that is even less applicable.

 

And — if one does argue with him on the mootness ground — one will have to do so on the basis of two (frankly) questionable principles:

 

 

First, one would have to — inanely, in my estimation — argue that it is a societally beneficent thing that the "issue presented is capable of repetition, yet evades review".

 

And second, one would have to argue that cultivating Constitution-based trust in American institutions is not among the US Supreme Court's most important jobs.

 

 

Good luck, rationally speaking, with advancing both those positions. At least so, when arguing in front of an assemblage of intelligently thoughtful people.

 

The fact that Justice Thomas had to state the obvious — and still got overruled — reinforces my opinion that the US Supreme Court does not deserve to exist. This Court has made a practice of evading doing its job for some years now.

 

Most curiously, from my characteristically Real Leftist (meaning not fake, as in Democrat) perspective — is that it is the most 'conservative' Justices — those with whom I most often legally disagree — who are currently trying to maintain judicial and societal competence on that panel.

 

My gosh, devils into angels. What will come next?

 

In America's dance of rabid fools, who can predict?