Monday, February 22, 2021

SUPREME COURT OF THE UNITED STATES: (ORDER LIST: 592 U.S.) MONDAY, FEBRUARY 22, 2021

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(ORDER LIST: 592 U.S.)  MONDAY, FEBRUARY 22, 2021



ORDERS IN PENDING CASES
 
20A63 
TRUMP, DONALD J. V. VANCE, CYRUS R., ET AL. 
The application for a stay presented to Justice Breyer and referred to the Court is denied. 

 CERTIORARI DENIED 


20-799
WOOD, L. LIN V. RAFFENSPERGER, BRAD, ET AL.

20-809
WARD, KELLI V. JACKSON, CONSTANCE, ET AL.

20-882
TRUMP, DONALD J., ET AL. V. BIDEN, JOSEPH R., ET AL.

 20-810 

KELLY, MIKE, ET AL. V. PENNSYLVANIA, ET AL.
The motion of 28 Current Members of the House of  Representatives for leave to file a brief as amici curiae is  granted. The petition for a writ of certiorari is denied.

20-815
KING, TIMOTHY, ET AL. V. WHITMER, GOV. OF MI, ET AL.
The petition for a writ of certiorari before judgment is denied.

20-845
DONALD J. TRUMP FOR PRESIDENT V. DEGRAFFENREID, ACTING SEC. OF PA, ET AL.
The motion of Constitutional Attorneys for leave to file a brief as amici curiae is granted. The motion of Republican Party of Pennsylvania for leave to file a brief as amicus curiae is granted. The petition for a writ of certiorari is denied.



Cite as: 592 U. S. ____ (2021) 

THOMAS, J., dissenting 

SUPREME COURT OF THE UNITED STATES

 20–542 REPUBLICAN PARTY OF PENNSYLVANIA 20–542 v. VERONICA DEGRAFFENREID, ACTING SECRETARY OF PENNSYLVANIA, ET AL. 


20–574 JAKE CORMAN, ET AL. 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

The motions of Donald J. Trump for President, Inc. for leave to intervene as petitioner are dismissed as moot. The motions of Thomas J. Randolph, et al. for leave to intervene as respondents are dismissed as moot. The motion of Hon- est Elections Project for leave to file a brief as amicus curiae in No. 20–542 is granted. The motion of White House Watch Fund, et al. for leave to file a brief as amici curiae in No. 20–574 is granted. The petitions for writs of certiorari are denied. 

 JUSTICE THOMAS, dissenting from the denial of certiorari. 

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.

I


Like most States, Pennsylvania has a long history of lim­iting the use of mail-in ballots. But in October 2019, the Pennsylvania Legislature overhauled its election laws. Rel­evant here, it gave all voters the option of voting by mail, and it extended the deadline for officials to receive mail bal­lots by several days to 8 p.m. on election day. 2019 Pa. Leg. Serv. Act 2019–77. Then, in response to COVID–19, the legislature again amended the law but decided not to ex­tend the receipt deadline further. See 2020 Pa. Leg. Serv. Act 2020–12.

Displeased with that decision, the Pennsylvania Demo­cratic Party sued in state court. It argued that the court could extend the deadline through a vague clause in the State Constitution providing, in relevant part, that “[e]lec­tions shall be free and equal.” Art. I, §5. The Pennsylvania Supreme Court agreed. On September 17, it held that this “free and equal” provision enabled the court to extend the deadline three days to accommodate concerns about postal delays.

Petitioners promptly moved for emergency relief, filing an application for a stay on September 28. That application easily met our criteria for granting relief. See Hol­lingsworth v. Perry, 558 U. S. 183, 190 (2010) (per curiam). Not only did parties on both sides agree that the issue war­ranted certiorari, but there also was no question that peti­tioners faced irreparable harm. See Maryland v. King, 567

U. S. 1301, 1303 (2012) (ROBERTS, C. J., in chambers)(“‘[A]ny time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury’”). Petitioners further estab­lished a fair prospect of certiorari and reversal. For more than a century, this Court has recognized that the Consti­tution “operat[es] as a limitation upon the State in respectof any attempt to circumscribe the legislative power” to reg­ulate federal elections. McPherson v. Blacker, 146 U. S. 1, 25 (1892). Because the Federal Constitution, not state con­stitutions, gives state legislatures authority to regulate fed­eral elections, petitioners presented a strong argument that the Pennsylvania Supreme Court’s decision violated the Constitution by overriding “the clearly expressed intent ofthe legislature.” Bush v. Gore, 531 U. S. 98, 120 (2000) (Rehnquist, C. J., concurring). Despite petitioners’ strong showing that they were entitled to relief, we divided 4–4and thus failed to act. Scarnati v. Boockvar, ante, p. ___.

Four days later, petitioners filed the first of these peti­tions and moved to expedite consideration so the Court could decide the merits before election day. But by that time, election day was just over a week away. So we denied the motion to expedite even though the question was of “na­tional importance” and there was a “strong likelihood that the State Supreme Court decision violates the Federal Con­stitution.” Republican Party of Pa. v. Boockvar, ante, at 3 (statement of ALITO, J.).


II

 Now that the petitions are before us under the normal briefing schedule, I see no reason to avoid them. Indeed, the day after we denied petitioner’s motion to expedite in No. 20–542, the case became even more worthy of review. The Eighth Circuit split from the Pennsylvania Supreme Court, granting a preliminary injunction against an at­tempt by the Minnesota Secretary of State to extend the legislature’s deadline to receive ballots by seven days. Car­son v. Simon, 978 F. 3d 1051, 1059–1060, 1062 (2020). This divide on an issue of undisputed importance would justify certiorari in almost any case. That these cases concern fed­eral elections only further heightens the need for review.

 

A

 

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.1

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.

We are fortunate that the Pennsylvania Supreme Court’s decision to change the receipt deadline for mail-in ballots does not appear to have changed the outcome in any federal election. This Court ordered the county boards to segregate ballots received later than the deadline set by the legisla­ture. Order in Republican Party of Pa. v.  Boockvar, No. 20A84. And none of the parties contend that those bal­lots made an outcome-determinative difference in any rele­vant federal election.

But we may not be so lucky in the future. Indeed, a sep­arate decision by the Pennsylvania Supreme Court may have already altered an election result. A different petition argues that after election day the Pennsylvania Supreme Court nullified the legislative requirement that voters write the date on mail-in ballots. See Pet. for Cert., O. T. 2020, No. 20–845. According to public reports, one candidate for a state senate seat claimed victory under what she con­tended was the legislative rule that dates must be included on the ballots. A federal court noted that this candidate would win by 93 votes under that rule. Ziccarelli v. Alle­gheny Cty. Bd. of Elections, 2021 WL 101683, *1 (WD Pa., Jan. 12, 2021). A second candidate claimed victory under the contrary rule announced by the Pennsylvania Supreme Court. He was seated.

That is not a prescription for confidence. 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. When those changes alter election results, they can severely damage the electoral system on which our self­-governance so heavily depends. 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.

 

B


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 post-election litigation.

 

First, postelection litigation is truncated by firm time­lines. That is especially true for Presidential elections, which are governed by the Electoral Count Act, passed in1887. That Act sets federal elections for the day after the first Monday in November—last year, November 3. See 3

U. S. C. §1. Under a statutory safe-harbor provision, a State has about five weeks to address all disputes and make a “final determination” of electors if it wants that decision to “be conclusive.” §5. Last year’s deadline fell on Decem­ber 8, and the Electoral College voted just six days later.§7. Five to six weeks for judicial testing is difficult enough for straightforward cases. For factually complex cases, compressing discovery, testimony, and appeals into this timeline is virtually impossible.

Second, this time frame 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 havelong 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 exists at polling places with something akin to an honor system.” Ibid. Heather Gerken, now dean of Yale Law School, ex­plained in the same New York Times article that absentee voting allows for “simpler and more effective alternatives to commit fraud” on a larger scale, such as stealing absentee ballots or stuffing a ballot box, which explains “‘why all the evidence of stolen elections involves absentee ballots and the like.’” Ibid. The same article states that “[v]oting by mail is now common enough and problematic enough that election experts say there have been multiple elections in which no one can say with confidence which candidate was the deserved winner.” Ibid.

Pennsylvania knows this well. Even before widespread absentee voting, a federal court had reversed the result of a state senate election in Philadelphia after finding that the supposedly prevailing candidate “conducted an illegal ab­sentee ballot conspiracy and that the [election officials] cov­ertly facilitated the scheme with the specific purpose of en­suring a victory for” that candidate. Marks v. Stinson, 1994 WL 146113, *29, *36 (ED Pa., Apr. 26, 1994). This problem is not unique to Pennsylvania, and it has not gone away. Two years ago, a congressional election in North Carolina was thrown out in the face of evidence of tampering with absentee ballots. Because fraud is more prevalent with mail-in ballots, increased use of those ballots raises the likelihood that courts will be asked to adjudicate questions that go to the heart of election confidence.2

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.

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. After all, “[c]onfidence in the integrity of our electoral process is es­sential to the functioning of our participatory democracy.” Purcell, supra, at 4; cf. McCutcheon v. Federal Election Comm’n, 572 U. S. 185, 191, 206–207 (2014) (plurality opin­ion) (identifying a compelling interest in rooting out the mere “appearance of corruption” in the political process).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.

 

III

 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.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.

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