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Pardon the baseball jargon, but even non-fans of America’s favorite pastime sport know that a “strike out” is not a success story. The Supreme Court (SCOTUS) on Monday February 22nd, dismissed eight lingering legal challenges to the 2020 election process from numerous Republican parties. The most salient of the lawsuits involved concerns about the constitutionality of Pennsylvania’s electoral law changes, its ensuing date extension for receipt of mail-in ballots and the overarching conflicts with states legislator’s exclusive primacy in drafting electoral laws and equal protection considerations, both, inherent in the Constitution.
Does this signify a demolition of the election irregularities, anomalies, and unconstitutionalities arguments? No, it does not. The fact is that the likelihood that a case will be heard before the SCOTUS is practically nil. In 2017, for example, that precise figure was 2.8 %, according to data compiled by the Administrative Office of the United States Courts, recorded in the Sourcebook of Criminal Justice and published by the Supreme Court Press. They point to the irony that it is easier to get admitted into Harvard, than to have a case heard in the nation’s highest court.
The refusal by the Supreme Court is procedural in nature
The evidence by Republican, pro-Donald J. Trump lawsuits that were “dismissed”, to be emphatically clear, were not heard or tried. The premise for the SCOTUS dismissals was essentially of a procedural intricate nature. Thus, the basis for the complaints remains unresolved. If we extrapolate comparatives views on the integrity of mail-in voting, Trump, his Republican wing of the party and about half of America’s view on this matter is strengthened. These views are not limited to conspiracy theorists.
France banned mail-in voting forty-five years ago. In a recent interview, OANN journalist Jack Posobiec asked Jerome Riviere, a French politician visiting Washington, why the French did away with that generalized voting option. The European Union Parliament Member stated that it was out of concerns for the possibility of fraud and added that the 2020 American presidential election fortified his position that his country did the right thing with mail-in voting in 1975. France is not an isolated case.
The decision not to review the cases which questioned the election’s integrity, particularly the Pennsylvania lawsuit which was filed by the Republican Party of Pennsylvania and Republican members of the state legislature, was not unanimous among the SCOTUS members. Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch dissented from the high tribunal’s decision not to grant a hearing to The Keystone State’s legal challenge. The position of the dissenting judges, while clearly a minority within the Court’s nine-member body, established a coherent, perspicacious, and powerful rationale for their objection.
Clarence Thomas voiced the strongest disapproval. Writing a scorching dissenting opinion, the Courts only current black justice and arguably, its most conservative member, lambasted his non-concurring colleagues for their refusal to not recognize the danger that was posed to the American Republic by the Court not addressing this most fundamental matter. Nominated by George H. W. Bush and considered to be the most silent of the SCOTUS justices, Thomas warned of “catastrophic” fallouts of allowing non-authorized, non-constitutionally mandated entities altering election laws, or as he referred to it, “changing the rules in the middle of the game.”
The main problem that the Pennsylvania case highlighted, as in similar instances of other states in this regard, was wholly a matter of constitutional overstep. The Pennsylvania Democratic Party sued to extend the deadline for mail-in ballots to be received and counted as legitimate votes, when in fact, Pennsylvania’s State legislature had clearly established the guidelines for this. The Pennsylvania Supreme Court sided with the states Democratic Party litigants and allowed for the overhaul of electoral laws based on the pandemic concern claims. It is important to note, although unrelated to the minority dissent but important to establish, that some of Pennsylvania’s high court justices are elected officials. In other words, owing their position to the electorate, it can be construed that they lack judicial independence and proper temperance.
Thomas adamantly stated in his seminal opinion that “both before and after the 2020 election, non-legislative 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.” Additionally, he cited a long string of federal and state cases that upheld the Constitution’s exclusive charter extending to the state legislative bodies the sole ability to make and/or change election laws. By not hearing this case, Thomas contended, the petitioners faced “irreparable harm”.
Since these constitutional trespasses impacted the “rules of the game”, as Thomas so brilliantly laid it out, America’s democracy as an institution has suffered an “irreparable harm”. The abject anomalism that plagued the 2020 election, a direct result of these legal, yet non-constitutional alterations of election laws which the SCOTUS, sadly, refused to review, will weigh heavily against the formidable principle of checks and balances. The legitimacy of America’s political model has been into question and its highest court did not step up to the plate to address the problem. The system failed.
Julio M Shiling, political scientist, writer, director of Patria de Martí and The Cuban American Voice, lecturer and media commentator. A native of Cuba, he currently lives in the United States. Twitter: @JulioMShiling // Julio es politólogo, escritor, director de Patria de Martí y The Cuban American Voice. Conferenciante y comentarista en los medios. Natural de Cuba, vive actualmente en EE UU.