SCOTUS Fails to Blaze a Trial on Election Reform

February 23, 2021

"Befuddling." "Inexplicable." "Baffling." Those are just three of the words Supreme Court Justice Clarence Thomas used to describe his colleagues' latest response to the 2020 election. After three months of mixed signals, the justices finally turned down a case that had most conservatives holding their breaths -- a lawsuit against Pennsylvania's expanded mail-in balloting order. The issue, many said, was moot. But the dangers of lawlessness, Thomas fired back, is not.

It was one of the most appalling power grabs of last year's election chaos. To the surprise of everyone, the Pennsylvania Supreme Court decided to unilaterally extend the deadline for counting mail-in ballots three full days after November 3rd -- overruling the law and state legislators. The Republican Party was irate -- and they weren't the only ones. Other state attorneys general looked on in horror as the court upended the election process. "Pennsylvania's legislature wrote clear instructions concerning the deadlines for absentee ballots," West Virginia Attorney General Patrick Morrisey (R) argued. "Now its Supreme Court has decided it knows better than elected lawmakers... This is a clear example of courts legislating from the bench, and the impact shakes the very core of our democracy."

In a state where Joe Biden won three out of every four mail-in ballots, Morrisey was right. The impact was enormous. Before Election Day, leaders filed an emergency appeal to the Supreme Court -- desperately trying to stop the overreach. With the justices deadlocked at 4-4 (Amy Coney Barrett recused herself), Pennsylvania voters were stuck with their supreme court's decision. Now, months into a Biden presidency, Thomas agrees, the case is no longer about the ballot extension. It's about who has the power to make election law. And "now that the petitions are before under the normal briefing schedule," he writes, "I see no reason to avoid them." Elections are, after all, "of the most fundamental significance under our constitutional structure."

Maybe the state court's decision didn't change the outcome of 2020, Thomas acknowledges, but "that may not be the case in the future." That's why, as far as he and Justices Neil Gorsuch and Samuel Alito are concerned, the "decision to rewrite the rules" is a question of "national importance." As the Constitution spells out in black and white, it's the state legislature's job -- not the courts' -- to set election policy. "Yet both before and after the 2020 election, nonlegislative officials in various states took it upon themselves to set the rules instead." All that accomplished, he argued, was sowing "confusion" and dampening the country's confidence in the "integrity and fairness of elections." And if we don't move restore that trust, Thomas warned, activist judges will "drive honest citizens out of the democratic process..."

"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."

Maybe October wasn't the most convenient time to address that crisis, Thomas conceded. But "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... 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."

There's one more chance for the justices to weigh in on the 2020 election -- this time in a Wisconsin suit about the Badgers' use of ballot drop-boxes. But regardless of what they decide, there should be plenty of reforms to keep conservatives busy. As disappointing as the justices' decisions have been, we shouldn't be waiting on the courts to do what Clarence Thomas reminds everyone is our job: overhauling state election laws.

In 33 states, leaders are taking that charge very seriously -- introducing a wave of more than 165 bills to eliminate fraud and strengthen voting processes. If you're wondering how your state stacks up, check out the new election integrity scorecard from Concerned Women for America. Only one state earned an "A," by the way -- Alabama. The rest of us have our work cut out for us. To see what areas of concern you can highlight to local leaders, don't miss the list of 10 changes every state can make to safeguard your vote.