Tee Up New Election Law Challenges

U.S. Supreme Court Justice Clarence Thomas – on his way to being the longest-serving justice in American history – and fellow Justice Samuel Alito have the skill of writing clearly.

One rarely has to read one of their sentences twice to understand it.

So it was on Feb. 22 when each explained why the court should have taken up two Pennsylvania election-law challenges.

The 2020 election is over, and there’s no changing it.

Yet regardless of whether 2020 election illegalities changed the result, the court’s taking up the two Pennsylvania election-law challenges could have been one step in reviewing the illegalities, plus carefully and fairly restoring the rule of law to American elections, all with an eye toward preventing future illegalities no matter whom they’d benefit.

Readers of this column six weeks ago will recall that Pennsylvania election law violates the U.S. Constitution, in part because (1) persons other than Pennsylvania state legislators changed how Pennsylvania appoints presidential electors and (2) persons other than Pennsylvania state legislators or Congress changed how Pennsylvania elects U.S. senators and representatives.

It’s that simple.

And Pennsylvania is far from the only state whose election law violates the U.S. Constitution for one or both of these reasons.

With the Supreme Court having declined to take up the two Pennsylvania election-law challenges, it’s time to plan how to tee up new constitutional challenges to unconstitutional election laws in Pennsylvania and elsewhere in time for the challenges to reach the Supreme Court before the 2022 elections, and certainly before the 2024 elections.

We must not permit 2020 illegalities to repeat themselves, no matter whom they’d benefit.

The Thomas and Alito explanations of why the court should have taken up the two Pennsylvania election-law challenges are at https://www.supremecourt.gov/orders/courtorders/022221zor–2cp3.pdf and are worth reading. Particularly worth reading is the Thomas explanation of why courts are “ill equipped to address problems – including those caused by improper rule changes -“ after, rather than before, elections:

¯ First, firm deadlines truncate post-election challenges, especially regarding presidential elections. Under federal law, 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.'” The 2020 deadline was Dec. 8. The electoral college met and voted Dec. 14. “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 timeframe imposes especially daunting constraints when combined with the expanded use of mail-in ballots. … This expansion impedes postelection judicial review because litigation about mail-in ballots is substantially more complicated.” Why? “For one thing, … the risk of fraud is ‘vastly more prevalent’ for mail-in ballots” than for voting at polling places.

¯ “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. … 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,” Thomas writes.

Randy Elf joins those wanting to prevent future election illegalities no matter whom they’d benefit.

ç 2021 BY RANDY ELF.


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