As expected, the U.S. Supreme Court on Monday decided not to hear a claim by Pennsylvania Republicans that the U.S. Constitution was violated by a Pennsylvania Supreme Court decision allowing some late-arriving mail ballots to be counted.
But three justices suggested that they might be open to arguments that state legislatures are supreme in election matters, even to the point of ignoring decisions by state supreme courts. The notion that legislatures have the final say in elections figured in then-President Donald Trump’s efforts to overturn the results of last year’s election. If adopted by the court, it could undermine the right to vote in several ways.
In Pennsylvania, the state Supreme Court, interpreting the state constitution, ruled that mailed ballots should be counted if received up to three days after the Nov. 3 election. The court also allowed ballots to be counted unless there was clear evidence that they were mailed after Election Day.
State supreme courts are the final authority on the meaning of state constitutions, and their interpretations don’t create a federal question that can be reviewed by the U.S. Supreme Court. But in this case, there is an argument that the Pennsylvania Supreme Court’s ruling violated two provisions of the U.S. Constitution.
One says that state legislatures shall prescribe the “times, places and manners” of congressional elections (though Congress may override those decisions). The other establishes that state legislatures decide how members of the electoral college shall be appointed.
Justice Samuel A. Alito Jr., in an opinion joined by Justice Neil Gorsuch, said the court should address this issue to “provide invaluable guidance for future elections.” Justice Clarence Thomas made the same point in a separate opinion, in which he also claimed that “fraud is more prevalent with mail-in ballots.” Thomas also said in a footnote that, even though many election lawsuits involved changes in election rules rather than allegations of fraud, “that observation provides only small comfort. An election free from strong evidence of systemic fraud is not alone sufficient for election confidence.”
Trump followers can seize on that gratuitous comment as confirmation of the former president’s claim in his notorious Jan. 6 speech that changes in election rules led to “fraud on a scale never seen before.”
Richard L. Hasen, an election law expert at the University of California, Irvine, has written that the argument that legislatures are supreme in election matters is a “ticking time bomb.”
If the court were to adopt this theory, it would threaten not only attempts to protect voting rights, but also efforts by states, including California, to limit gerrymandering by entrusting the drawing of congressional districts to independent commissions.
In a 2015 case from Arizona, the court ruled 5-4 that such commissions were constitutional. But two of the members of the majority were the late Justice Ruth Bader Ginsburg and the retired Justice Anthony M. Kennedy.
Congress could override restrictions states impose on voting by mail, as H.R. 1, an election reform bill backed by Democrats, proposes to do. That bill also proposes that redistricting be done by commissions.
But in the absence of congressional action, an embrace by the court of the so-called “independent legislature” doctrine could make it easier for Republican-controlled legislatures to disenfranchise voters. Fortunately, a majority of the court is in no rush to give them that license, but the dissenting opinions are ominous.