Supreme Court already failed its duty to protect Pa.’s election | Opinion

The Supreme Court punted its decision as to whether Pennsylvania election officials could count absentee ballots received after Nov. 3 — and may yet weigh in.

A U.S. Postal Service truck makes deliveries next to the Supreme Court on Election Day, Tuesday, Nov. 3, 2020, in Washington. President Donald Trump says he's planning an aggressive legal strategy to try prevent Pennsylvania from counting mailed ballots that are received in the three days after the election, a matter that could find its way to the high court. (AP Photo/J. Scott Applewhite)Read moreJ. Scott Applewhite / AP

by Nicholas Liu, For the Inquirer

Published Nov. 4, 2020, 10:50 a.m. ET

As the 2020 general election lurches to its end, Democratic activists wary of vote-suppressing wiles have been ready to scramble into action at a moment’s notice. Oct. 26 was no exception when a Supreme Court ruling to disqualify late-arriving absentee ballots in Wisconsin jolted Democratic Party supporters, who implored voters to place their ballots in drop boxes or the hands of their local election clerk. Democratic voters are, according to election analysts, far more likely to vote by mail than Republicans.

Two days later, the Supreme Court announced it would not heed a GOP request to decide before Election Day whether Pennsylvania election officials could count absentee ballots received after Tuesday. Was this finally some good news for Democrats, who have long been quaking in terror of a stolen election? The New York Times seemed to think so when it wrote that this ruling was one of “a pair of decisions welcomed by Democrats.” So did NBC News, whose website called it a “defeat for Republicans.” CNN legal analyst Elie Honig took to Twitter, praising the Supreme Court for applying “some consistency in applying actual legal principles.”

Except it didn’t. In Justice Samuel A. Alito Jr.’s own words, “there is simply not enough time at this late date to decide the question before the election.” What legal principle is cited here? This is a purely logistical issue if we assume Alito wrote in good faith. More disconcerting, and ignored, is the fact that at least three justices (Alito, Clarence Thomas, and Neil M. Gorsuch) are willing to review the petition after Election Day, leaving open the possibility that thousands of absentee ballots from the Keystone State will be retroactively voided.

It would have been better if the Supreme Court made a decision ahead of the election; at least in the case of Wisconsin, the immediate blow inflicted by their ruling set off alarm bells and spurred activists into encouraging voters to cast their ballots more securely. In the case of Pennsylvania, however, many Democrats and news outlets stayed asleep on this issue or decided that adding a few seconds to a time bomb is what amounts to a victory these days.

While the Pennsylvania Democratic Party’s Twitter account broadly encouraged people to deliver their ballots by hand leading up to the election, the relative lack of urgency could have dire implications. Thousands of voters, ignorant to the danger, may have continued mailing in ballots all the way up to Election Day while the Supreme Court sits on the case. The potential magnitude of this problem is greater than that in Wisconsin, as Pennsylvania holds twice as many electoral votes and is, according to polls and some early returns, host to an extremely tight race between Joseph R. Biden Jr. and Donald J. Trump.

Even if liberals have not stirred, local election officials in Pennsylvania appeared to have taken note. On Oct. 28, the secretary of the commonwealth instructed officials to segregate ballots received after poll closing but before the current Nov. 6 deadline, expediting the process in which those ballots can be tossed aside if the Supreme Court so dictates. But again, that’s a process “fix” to a deeper problem.

By the time such a ruling would occur, it would be too late for anyone to adjust their voting method. The Supreme Court’s nondecision created a scenario where the safer guarantee of a full count was to go out and vote in person — but the reality of that didn’t hit until millions of Pennsylvanians already sent mail ballots to an uncertain fate. This punt by the Supreme Court is a misguided blunder at best, and a cynical ploy at worst. No matter how this election ends, Americans should know that the Supreme Court dodged its responsibility to ensure a fair voting process.

Nicholas Liu is a doctoral student in history at the University of California-Santa Barbara.