Op-Ed: Supreme Court Ducks Election Law Case

By Steve Levy

The latest aversion by the U.S. Supreme Couort (SCOTUS) to deciding election law challenges on their merits came about last month when the high court punted on a Third Circuit Court of Appeals holding stating that failure to date an absentee ballot was not disqualifying. The Court failed to weigh in on the merits, declaring the appellate court decision was moot since the subject of the litigation — a contested 2021 judicial race — was already over.

Their declaration of mootness was similar to their holding rendered in 2021 regarding actions taken by the Pennsylvania Supreme Court just before the election in 2020 which allowed ballots received well after the deadline established by the state legislature to be counted.

That was an extraordinarily important case because the Republican plaintiffs petitioned the court on the grounds that the US Constitution is clear that only a state legislature or Congress can change election law, not a single governor or secretary of state — or even an activist Democratic court.

In the year leading up to the 2020 election, Democrats in Pennsylvania sought to change the law to allow ballots to be counted, even if they were received after Election Day.

Activists brought suit before Pennsylvania’s liberal Supreme Court (where Democratic appointees held a 5-2 majority), asking the court to intervene and overrule the will of the state legislature. The leftist court was happy to oblige.

Republicans cried foul, stressing this was a clear violation of the U.S. Constitution, and asked the US Supreme Court to stop this illegal maneuver in its tracks.

Astonishingly, the court refused to hear the case at that point, claiming that they didn’t have enough time prior to the election to deliberate.

Basically, the Court told the Republicans to come back after Election Day.

Joe Biden was declared the winner in Pennsylvania after the final count was in, but Republicans sought review, claiming many ballots received after election day were wrongly counted.

So they went back to the U.S. Supreme Court to invalidate those late ballots.

One would think that now that the time pressures were off, the Court would render a ruling to clarify the law once and for all. Alas, they did not. Instead, they remarkably ruled . . . you guessed it. . . that the matter was now moot.

The same court that had demurred on ruling before election (which would have helped alleviate dangerous national divisions) and intimated the plaintiffs should come back after election, were now telling the same plaintiffs: "Oops it’s too late." For the GOP, this was a classic case of "tails they win, heads we lose."

Justice Clarence Thomas wrote a blistering dissent, castigating the Court for failing to clarify the law — not to overturn the 2020 election, but rather to erase doubt as to what the law is for future elections.

Though the constitution is clear that such tinkering with election law is illegal without the approval of the state legislature, Democrats will continue to ignore legislatures given the fact that the Supreme Court refused to hear the issue.

Thus, Republicans will now have to withstand further unilateral actions by secretaries of state and governors, and be forced to bring suit once again to prevent them from carrying out their unilateral orders.

Which brings us back to the Supreme Court’s indecision last month.

Pennsylvania law is clear that mail in ballots have to be dated. But that didn’t stop the Democratic secretary of state from unilaterally declaring that the failure to date the ballot would not be disqualifying.

Wanting to eliminate the dating requirement for all future elections, the ACLU brought suit in federal district court, which held that the language of the statute requiring a date on the ballot had to be upheld.

But that did not stop the Democratic activists from appealing to the Third Circuit Court of Appeals which reversed the District Court, and once again allowed the Secretary of State to supersede the state legislature.

Many scholars strongly believed this was violative of the U.S. Constitution, so an appeal was requested to the U.S. Supreme Court.

A definitive decision by the court, could’ve brought clarity as to whether secretaries of state could unilaterally overrule the clear language of statutes passed by the legislature.

But again, SCOTUS refused to weigh in either way, claiming the matter was moot.

Thus we are once again left with a scenario where Democratic governors and secretaries of state will seek to make up their own election law changes just weeks before an election, and Republican state legislatures will sue to stop them.

Uncertainty and chaos will ensue and we have the Supreme Court of the United States and their inexplicable refusal to deliberate on these important matters to thank for it.