On Monday Chief Justice Roberts’ “Do Nothing Court” once again decided to, well, do nothing once again. This time the Supreme Court chose to “do nothing” when it came to the 2020 Presidential election. The particular cases in question involved Pennsylvania absentee election ballots. A
United States Supreme Court ruling on these cases would not have changed the outcome of the 2020 Presidential election race, but it is beyond unfortunate that the United States Supreme Court did not rule in these cases and instead chose to once again “do nothing” as with a similar case involving Texas. The reason is that this simply sows yet more populism, more distrust of government, more distrust of the election system and disenfranchises all voters, not just those who voted for Trump. But, before we get to all that, let’s review the specifics of the cases.
United States Constitution in Article II, Section 1, which deals with the the election of the President and Vice President states:
“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress:”
In plain English, this means that each state’s legislature gets to create their own rules around Presidential elections, what specific times voting will occur, where polling locations are located, how electors are apportioned, rules around absentee voting, rules around early voting, voter verification, electronic or paper ballots, when recounts occur, how recounts occur, etc. And, perhaps surprisingly, election rules vary quite a bit between states.
Now, what happened in Pennsylvania is that the state legislature changed some election regulations in the runup to the 2020 Presidential election. Democrats, not happy with the stated deadline for county boards of elections to receive mail-in ballots by 8 p.m. on Election Day sued and the Pennsylvania Supreme Court instead extended the deadline for mail-in ballots to three days after Election Day. It’s important to note here that the Pennsylvania Supreme Court is not a legislative body. The Pennsylvania secretary of state also removed/ignored the state law mandating that all applications for absentee or mail-in ballots for non-disabled and non-military voters be signed by the applicant. Again, important to note here that the Pennsylvania secretary of state is not a legislative entity and, in fact, isn’t even an elected official.
These actions prompted Republicans to sue the acting Pennsylvania secretary of state before the
United States Supreme Court. The issue being whether or not the actions of the secretary of state and the Pennsylvania Supreme Court violated the Constitution because the legislature did not make the rules. But, the United States Supreme Court refused to hear the case claiming that the issues in the case were “moot”, presumably because the election is over and there were not enough votes in question to change the outcome. However, the Supreme Court could have agreed to hear the case under the exception phrased “capable of repetition, yet evading review”. In fact, this is exactly how Roe v. Wade came about since Jane Roe’s appeal was moot because she had already given birth and thus would not be affected by the ruling and as such lacked standing to assert the rights of other pregnant women.
And Pennsylvania is not the only state in which these sorts of shenanigans occurred. In Georgia, state law prohibits the counting of absentee ballots until after the polls open on Election Day but Georgia’s State Election Board allowed processing of ballots up to three weeks before Election Day. In Michigan, state law requires that all absentee ballot requests be requested by the voter through a specific application process requiring a signature but the Michigan secretary of state created a website where people could request an absentee ballot without a signature. In Wisconsin, state law prohibits the use of unmanned drop boxes for ballots, however, the Wisconsin Elections Commission and other local officials used unmanned drop boxes. And this list probably isn’t even comprehensive in terms of how non-legislative entities and in some cases single, unelected officials changed election rules in what would appear to be a clear violation of the Constitution.
Now, again, none of this would change the outcome of the 2020 Presidential election. But, that does not mean that the
United States Supreme Court should not rule in whether or not these actions were constitutional. In fact, this would have been the exact right time to make a ruling on this topic because it wouldn’t have changed the outcome of the election. This is essentially what Justice Thomas, Justice Alito and Justice Gorsuch argue in their dissents.
So why were the cases not heard? Why would the
United States Supreme Court refuse to hear cases involving election integrity and the constitutionality of last minute election rule changes by non-legislative entities and single, unelected officials? Well, it is because Chief Justice Roberts is so concerned over the political optics of hearing the cases that he once again chose to “do nothing”. As we pointed out in Silence, any time there is even the hint that a case or ruling from the United States Supreme Court could be politized, Roberts drops it like it’s hot. However, in doing so, Roberts has actually made the United States Supreme Court more politicized, not less politicized. Let us explain.
Most everyone has that one bad ex. That ex boyfriend/girlfriend where the relationship ended so horribly that you find yourself judging every new relationship based upon that individual. The minute you spot any characteristic that reminds you of that awful, horrible person, you end the relationship immediately. However, when you do this, you are actually still being controlled by that old, awful, horrible ex. You are allowing your life to be defined and shaped by the person you hate the most. This is exactly how the
United States Supreme Court has been politicized. By looking at the merits of each case based solely upon the political optics, the United States Supreme Court has become more politicized than ever before.
Chief Justice Roberts’ political calculation was that if the
United States Supreme Court heard the case then this would just add fuel to the proverbial fire of Trump’s relentless “fraud” and “the election was stolen” narrative. Which is probably true (the fuel not the narrative). But, in not hearing the case the United States Supreme Court has actually solidified the perception in many voters eyes that the election was, in fact, stolen. Anyone objective about the matter and with half a brain can see that there were many actions taken in the runup to the 2020 Presidential election that are questionable at best and obviously unconstitutional at worst. Not addressing those issues leaves voters confused and erodes voter confidence.
And it is not just Trump voters that have been disenfranchised. Actually, all voters have been disenfranchised. If the
United States Supreme Court thinks that this is a “one time”, “extraordinary” occurrence, it is dead wrong. What the United States Supreme Court has done is actually set the precedent that it is OK for non-legislative entities to arbitrarily change election rules and regulations. That precedent is now set in stone. This only means that these non-legislative entities and single, unelected officials are going to do more of it the next time, not less. It’s human nature. It’s the nature of power.
United States Supreme Court is supposed to be the ordinary citizen’s last line of defense against the tyranny of evil men/women. Read, those in power. Insanely, Robert’s “do nothing court” has chosen to completely abdicate this responsibility and instead enable the tyranny. Perhaps we need to change the name to Roberts’ “Cowardly Court”. This is only going to encourage increased populism and, as we have pointed out in Burn it Down, that tends to end badly.
Chief Justice Roberts, we take back our apology. You are a pussy, a political hack, a coward and someone that is doing real damage to our American institutions and America itself. You, sir, are a complete and utter disgrace.