Among the things that Americans are most weary of are COVID-19 pandemic restrictions, political polarization, demonstrations and protests that deteriorate into violence and destruction and contentious elections. Sorry, but the latter is the topic for today because the mid-term primaries are already less than a year and a half away and the last thing that Americans need is another contested election.
With all that’s going on in the news and trying to keep track of the progress in dealing with the pandemic, most Americans probably didn’t even notice that the U.S. Supreme Court declined to hear several appeals of lower court decisions upholding election procedures in states won by Joe Biden that Donald Trump had challenged unsuccessfully. Even if Mr. Trump had prevailed in those challenges, it would not have changed the outcome of the election. However, one case in particular might have provided the high court with a convenient opportunity to weigh in on the election integrity issue.
It takes four justices to vote in favor in order for the court to agree to hear a case. In a case involving Pennsylvania, the state’s Supreme Court, invoking that state constitution’s free and equal elections clause, authorized state election officials to count mailed ballots if they were received within three days of the deadline prescribed by state law, even without proof of when they had been mailed. This involved about 10,000 ballots, some lacking legible post marks, that were counted contrary to state law. The number was insufficient to affect the outcome in Pennsylvania but in a closer election it could have. Three justices, Clarence Thomas, Samuel Alito and Neil Gorsuch, dissented from the court’s decision against hearing the case.
Justice Thomas wrote in his dissenting opinion, that “Changing the rules in the middle of the game is bad enough. Such rule changes by officials who may lack the authority to do so is even worse.” Quite so, and the fact that this happened in at least three battleground states is a prime reason why so many Americans say they lack confidence in the integrity of our elections. Whether or not these irregularities are of sufficient gravity to justify such lack of confidence is really beside the point. That the lack of confidence is as widespread as it is now is precisely the point and it must be addressed before the mid-term election next year. As the Wall Street Journal editorialized on Feb. 23, the Supreme Court missed an opportunity to deal with what amounted to a judicial rewrite of a state’s election laws.
As everyone who bothers to vote should know, the Constitution of the United States assigns to the various state legislatures the responsibility for determining the rules for the conduct of elections including procedures and timelines for dealing with mailed ballots. That responsibility is clearly expressed in Section 4 of Article I which states that ”The Times, Places and Manner of holding Elections for Senator and Representative, shall be prescribed in each state by the Legislature thereof.” It says further that Congress may at any time by law make or alter such regulations but says nothing about delegating such powers to state or election officials. Since these procedures may differ among the states, it is imperative that they be clear, unambiguous and understood by the voters of that state and that the rules be followed to the letter of the law. As Justice Thomas opined, they should not be changed “in the middle of the game” or by state officials who may lack the authority to do so.
Some U.S. Supreme Court justices, and Chief Justice John Roberts in particular, have been reluctant to weigh in on election matters which they rightly consider are the purview of state legislatures. But the court should have seized this opportunity to send a message to the states that they are expected to strictly follow their own laws regarding elections, not permit changes to election procedures that are not enacted by their legislatures and to ensure that election results are certified in a timely manner.
The COVID-19 pandemic certainly justified the widespread use of voting by mail and it is likely that its use will grow. But voting by mail greatly increases the amount of handling of ballots involved, adds to the risk of mishandling and thus for irregularities to occur. Last minute changes to rules and timelines by election officials and interventions by lower courts lead to charges of unfairness and increase public skepticism regarding the integrity of the elections. There is little doubt that some states perform better than others in this regard, Florida being one example. After its “hanging chad” fiasco of 2000, which resulted in Supreme Court intervention to determine who would be the next president, Florida overhauled its procedures resulting in smooth and uncontested elections and timely certification of results. It should serve as a model for some other states.