Few things are worse for public confidence in elections than having the rules changed in the middle of the game (or after it). An epidemic of late-in-the-day changes to the rules was particularly corrosive in 2020. Courts are ill-equipped to referee those changes when partisan tempers are running hot. The Supreme Court just threw away its last opportunity to remedy that problem before the next election cycle.
The Court this morning (Monday) turned away the remaining challenges to the 2020 election in Pennsylvania, Wisconsin, Georgia, Arizona, and Michigan. Some of these challenges were legally meritless, and none of them offered any legitimate grounds to change the outcome of the presidential election, but the Pennsylvania case in particular raised a serious, recurring issue of election law: whether state courts or state executive officials can use the general, open-ended terms of state constitutional provisions to throw out specific rules passed by state legislatures governing federal elections. Articles I and II of the Constitution reserve to state legislatures the power to set rules for federal elections.
That’s exactly what happened in Pennsylvania: The Pennsylvania supreme court used the Pennsylvania Constitution’s general guarantees of “free and equal” elections and “free exercise of the right of suffrage” as an excuse to invalidate the state legislature’s explicit deadline for mail-in ballots to be received by 8 p.m. on Election Day — the same time the in-person polls close. That deadline was enacted in 2019 and left untouched in revisions to the mail-in ballot rules during the pandemic in 2020. The Court should have heard the case before Election Day, in order t0 ensure that the rules of the road were set in advance. Refusing to hear the case either before the election or after the election guarantees that the issue remains unsettled for the next election.
Justice Clarence Thomas, joined by Justices Samuel Alito and Neil Gorsuch, wrote a dissent blasting the Court for repeatedly ducking this issue (Alito added his own dissent). Normally, federal courts will not hear cases once they are moot, and that would normally be the situation here: Justice Thomas noted that there was no evidence in the record that the Pennsylvania deadline extension changed the result of any federal election. Normally, federal courts will also not hear cases when there is no injury yet or when they are not ripe — that is, nobody has been harmed yet. That was the argument raised by the dissent in a challenge to Minnesota changing its mail-in ballot deadline: We shouldn’t even require ballots to be segregated until we see if it would change the outcome. But that can risk creating a Catch-22: a case is always too early or too late. So, there is an exception to the mootness rule to deal specifically with situations where the ripeness and mootness rules together would make it impossible ever to hear a properly brought case: for an issue that is “capable of repetition, yet evades review.” As Thomas noted, the Court has invoked this rule in election cases before, and should have done so here to avoid repeating the problem:
[The Pennsylvania Supreme Court’s] decision to rewrite the rules seems to have affected too few ballots to change the outcome of any federal election. But that may not be the case in the future. These cases provide us with an ideal opportunity to address just what authority nonlegislative officials have to set election rules, and to do so well before the next election cycle. The refusal to do so is inexplicable. . . . An election system lacks clear rules when, as here, different officials dispute who has authority to set or change those rules. This kind of dispute brews confusion because voters may not know which rules to follow. Even worse, with more than one system of rules in place, competing candidates might each declare victory under different sets of rules.