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“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”. (US Supreme Court Justice Thomas, Feb 22, 2021)

MA Blog note: There are other election integrity cases still pending.

Excerpt from: “REPUBLICAN PARTY OF PENNSYLVANIA v. DEGRAFFENREID THOMAS, J., dissenting“:

“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 cer-tiorari 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.3 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.

—————— 3Pet. for Cert., O. T. 2020, No. 20–845 (challenging three decisions); Pet. for Cert., O. T. 2020, No. 20–810 (challenging one decision).”

Pages 9-11 Excerpts from:
“Cite as: 592 U. S. ____ (2021) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
REPUBLICAN PARTY OF PENNSYLVANIA 20–542 v. VERONICA DEGRAFFENREID, ACTING SECRETARY OF PENNSYLVANIA, ET AL.
JAKE CORMAN, ET AL. 20–574 v. PENNSYLVANIA DEMOCRATIC PARTY, ET AL.
ON PETITIONS FOR WRITS OF CERTIORARI TO THE SUPREME COURT OF PENNSYLVANIA, MIDDLE DISTRICT
Nos. 20–542 and 20–574. Decided February 22, 2021” Please read in its entirety here (11 pages): https://assets.documentcloud.org/documents/20489890/clarence-thomass-dissent.pdf

Excerpts from:
“REPUBLICAN PARTY OF PENNSYLVANIA v. DEGRAFFENREID ALITO, J., dissenting

JUSTICE ALITO, with whom JUSTICE GORSUCH joins, dissenting from the denial of certiorari. I agree with JUSTICE THOMAS that we should grant review in these cases. They present an important and recurring constitutional question: whether the Elections or Electors Clauses of the United States Constitution, Art. I, §4, cl. 1; Art. II, §1, cl. 2, 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 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. Pa. Stat. Ann., Tit. 25, §§3146.6(c), 3150.16(c) (Purdon 2020). Nevertheless, the Pennsylvania Supreme Court, citing a provision of the State Constitution mandating that elections “be free and equal,” Art. I, §5, altered that deadline and ordered that mailed ballots be counted if received up to three days after the election, Pennsylvania Democratic Party v. Boock-var, ___ Pa. ___, ___–___, 238 A. 3d 345, 362, 371–372 (2020). Both the state Republican and Democratic parties urged us to grant review and decide this question before the 2020 election. See Application for Stay in Republican Party of Pennsylvania v. Boockvar, No. 20A54, pp. 2–3; Demo-cratic Party of Pennsylvania Response to Application for Stay in No. 20A54, pp. 8–9. But the Court, by an evenly divided vote, refused to do so. Nos. 20A53 and 20A54, ante, p. ___ (THOMAS, ALITO, GORSUCH, and KAVANAUGH, JJ., noting dissents). That unfortunate decision virtually ensured that this important question could not be decided before the election. See No. 20–542, ante, p. ___ (statement of ALITO, J., joined by THOMAS and GORSUCH, JJ.). Now, the election is over, and there is no reason for refusing to decide the important question that these cases pose…

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 otherwise evade review…

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. See App. to Pet. for Cert. 47a (relying on the court’s “broad authority to craft meaningful remedies when required” (internal quotation marks omitted)). 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. See Federal Election Comm’n v. Wisconsin Right to Life, Inc., 551 U. S. 449, 463 (2007). 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. We may hope that by next spring the pandemic will no longer affect daily life, but that is uncertain. In addition, the state court’s decision was not based solely on the pandemic but was also grounded in part on broader concerns about the operation of the Postal Service, App. to Pet. for Cert. 34a– 35a, 47a, and concerns of this nature may persist or resurface. 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, see Wisconsin Right to Life, Inc., 551 U. S., at 463, 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.

—————— *See Pennsylvania Democratic Party v. Boockvar, ___ Pa. ___, ___–___, 238 A. 3d 345, 369–372 (2020); Carson v. Simon, 978 F. 3d 1051, 1059– 1060 (CA8 2020).

“Cite as: 592 U. S. ____ (2021) 1
ALITO, J., dissenting
SUPREME COURT OF THE UNITED STATES
REPUBLICAN PARTY OF PENNSYLVANIA 20–542 v. VERONICA DEGRAFFENREID, ACTING SECRETARY OF PENNSYLVANIA, ET AL.
JAKE CORMAN, ET AL. 20–574 v. PENNSYLVANIA DEMOCRATIC PARTY, ET AL.
ON PETITIONS FOR WRITS OF CERTIORARI TO THE SUPREME COURT OF PENNSYLVANIA, MIDDLE DISTRICT Nos. 20–542 and 20–574. Decided February 22, 2021 ” Please read in its entirety here (4 pages): https://assets.documentcloud.org/documents/20489890/clarence-thomass-dissent.pdf