First they said Americans have no standing in the court, and now they say that voice is moot.
The Supreme Court threw out a series of legal challenges on Feb. 22 to voting processes and results in several states left over from the recent presidential election cycle.
The high court didn’t explain why it refused to hear the cases, but three justices dissented from the decision not to hear one of the cases from Pennsylvania.
On Jan. 11, with Inauguration Day just over a week away, the high court denied requests from the litigants–President Donald Trump, Republicans, and Trump supporters—to expedite several of the lawsuits, which concerned the presidential elections held in the battleground states of Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin. The court, as is its custom, didn’t explain why it dismissed the emergency applications seeking to fast-track the lawsuits.
Joe Biden, a Democrat, was inaugurated on Jan. 20, alongside Vice President Kamala Harris after Congress voted Jan. 7 to reject objections by senators and representatives challenging Electoral College votes from disputed states won narrowly by Biden. That vote took place after a breach of the U.S. Capitol by hundreds of protesters delayed the certification process for hours.
Some of the lawsuits challenged the election results on the basis of allegedly unconstitutional changes made to state election procedures. Article II of the U.S. Constitution states that “Each State shall appoint [electors for president and vice president] in such Manner as the Legislature thereof may direct.” Litigants point out that the legislative power here is “plenary,” meaning unqualified and absolute.
State officials, they say, aren’t allowed to modify election procedures without the consent of the legislature.
One of the now-dismissed appeals, Republican Party of Pennsylvania v. Degraffenreid, court files 20-542 and 20-574, was originally known as Republican Party of Pennsylvania v. Boockvar, but then respondent Kathy Boockvar resigned as Pennsylvania’s secretary of state and was replaced by Veronica Degraffenreid. The case dealt with the perceived overreach of the state’s Supreme Court when it unilaterally changed election rules without the consent of the state legislature.
The GOP argued in its petition that “important questions of federal law [were] implicated by the Pennsylvania Supreme Court’s 4–3 decision extending the General Assembly’s Election Day received-by deadline and mandating a presumption of timeliness for non-postmarked ballots.”
This is the case in which Justice Samuel Alito ordered on Nov. 6, three days after Election Day, that “all ballots received by mail after 8:00 p.m. on November 3 be segregated,” away from other voted ballots.
On Feb. 22, Alito wrote in his dissent, joined by Gorsuch, that the case presents “an important and recurring constitutional question: 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. That question has divided the lower courts, and our review at this time would be greatly beneficial.”
In his dissent, Thomas expressed frustration, writing that the court “failed to settle this dispute before the election, and thus provide clear rules. Now we again fail to provide clear rules for future elections.”
Another now-dismissed appeal, Kelly v. Pennsylvania, court file 20-810, was brought by Rep. Mike Kelly (R-Pa.), a strong Trump supporter who challenged Biden’s victory in the Keystone State. Kelly had asked the Supreme Court to consider his lawsuit which challenged mail-in voting policies in his home state of Pennsylvania. Kelly argued that Act 77, the 2019 state statute that authorized universal, no-excuses mail-in voting, violated the Constitution.
Although support for challenging Electoral College results evaporated in Congress after the breach of the Capitol, Kelly held firm, objecting to the certification of the Pennsylvania electors early on Jan. 7. The challenge failed.
The Supreme Court denied another petition from Pennsylvania, Donald J. Trump for President v. Degraffenreid, court file 20-845. Boockvar was originally listed as the respondent.
Trump campaign attorney John C. Eastman of Anaheim, California, told The Epoch Times in mid-January that he still held out hope the nation’s highest court would take up the case because it concerned important issues.
“There is a well-recognized exception to mootness called ‘capable of repetition yet evading review,’ he said at the time.
“It is invoked quite frequently in election litigation, as oftentimes the issues are as applicable to the next election as to the current one. Our legal issue—whether non-legislative election and judicial officials in the state have the ability to ignore or alter state election law in the ‘manner’ of choosing presidential electors violates Article II of the U.S. Constitution, remains important and in need of the Court’s review.”
Another dismissed case was Wood v. Raffensperger, court file 20-799, brought by Trump supporter and lawyer L. Lin Wood against Georgia Secretary of State Brad Raffensperger. Wood argued that Raffensperger, a Republican, “usurped” the plenary authority of the Georgia Legislature “by entering into a Settlement Agreement with the Democratic Party earlier this year and issuing an Official Election Bulletin that modified the Legislature’s clear procedures for verifying the identity of mail-in voters.”
The March 2020 settlement with the Democratic Party of Georgia, the Democratic Senatorial Campaign Committee, and the Democratic Congressional Campaign Committee violated voters’ rights by setting forth “totally different standards to be followed [by] a poll worker processing absentee ballots in Georgia.”
A case from Arizona, Ward v. Jackson, court file 20-809, also was dismissed.
That lawsuit, brought by Arizona GOP chief Kelli Ward, claimed that the lower courts hadn’t allowed sufficient time to those challenging the state’s election results.
“In this case, the lower courts allowed only two full days of inspection and discovery into the validity of the presidential election in Arizona, in which … [3,333,829] ballots were cast.”
A case from Michigan, King v. Whitmer, court file 20-815, was dismissed.
The petition stated that there were “widespread voter irregularities and fraud in the State of Michigan in the processing and tabulating of votes and absentee ballots,” and that the trial court “completely and utterly ignored the dozens of affidavits, testimonials, expert opinions, diagrams and photos that supported the petitioners’ claim.”
A case from Wisconsin, Trump v. Biden, court file 20-882, also was dismissed.
The Trump campaign challenged a ruling by the Wisconsin Supreme Court that allegedly violated Article II of the Constitution “by upholding the counting of 50,125 absentee ballots cast in two counties pursuant to the decisions of election officials to ignore or circumvent state statutes requiring that absentee ballots be delivered only by mail or by hand delivery to the clerk.”
Clarence Thomas issued a blistering dissent.
“This is not a prescription for confidence,” Thomas wrote on Monday, adding that “changing the rules in the middle of the game is bad enough.” Thomas, considered by many to be the most conservative justice, said the court should have granted a review.
“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,” Thomas wrote (pdf). “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.”
Other than Thomas, Justices Samuel Alito and Neil Gorsuch also dissented.
“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,” Thomas, an appointee of former President George H.W. Bush, also wrote.
Thomas also appeared to make a reference to allegations of fraud and irregularities during the Nov. 3 election.
“We are fortunate that many of the cases we have seen alleged only improper rule changes, not fraud,” Thomas wrote. “But that observation provides only small comfort. An election free from strong evidence of systemic fraud is not alone sufficient for election confidence. Also important is the assurance that fraud will not go undetected.”
The Supreme Court on Monday also declined to review a bid by Rep. Mike Kelly (R-Pa.) and others who asked the court to strike down a policy that expanded mail-in ballots.
A lawyer for Kelly, Greg Teufel, told the Pittsburgh Post-Gazette last week that “it’s important the court should take an interest in whether Pennsylvania’s election laws are administered constitutionally or not, and in accordance with the Pennsylvania constitution and with the federal constitution.” Teufel noted that before the court’s decision on Monday, there was a slim chance of the justices taking it up.
Trump still has a request on the Supreme Court docket regarding his challenge to changes that the Wisconsin Election Commission ordered last year.