Thread by @rickhasen

#ELB: Breaking and Analysis: Supreme Court Refuses to Hear Cases Over Conduct of Election in Pennsylvania, With Justices Alito, Gorsuch and Thomas Dissenting electionlawblog.org/?p=120941 #SCOTUS

You can find Justice Thomas’s opinion, dissenting from denial of cert. in two-Pennsylvania election cases, and Justice Alito’s separate dissent joined by Justice Gorsuch in the same cases, at this link beginning at page 25 of the pdf. supremecourt.gov/orders/courtor…

The Court without noted dissent denied cert. in another PA case, the Kelly case. It takes four votes to agree to hear the case, and 5 to rule on the merits. There is no indication that Justice Barrett recused herself in consideration of the merits of these cases.

None of the dissenting Justices believed these cases could somehow retroactively affect the outcome of the 2020 election.Indeed, they say it would not, but that the cases, while moot, should still have been heard because they present issues that will return to the federal courts.

The main issue is the extent to which state courts, relying on state constitutions, may change rules for federal elections put in place by state legislatures. In the run-up to the 2020 elections, these three Justices, along with Justice Kavanaugh expressed support for this view.

This “independent state legislature” doctrine is a ticking time bomb, and it is an issue the Court is going to have to resolve, because these issues will return. I explained back in November in a NY Times oped: nytimes.com/2020/11/23/opi…

So why didn’t the Court go further in this case? My guess is that it is either the fact that the case is moot (and the Court would rather address the issue in the context of a live case, but with lower stakes) OR

because the Trump cases are somewhat radioactive at the Court. Given former President Trump’s continued false statements that the election was stolen, the case would become a further vehicle to argue that the election results were illegitimate.

It would thrust the Court back in the spotlight on an issue the Justices showed repeatedly they wanted to avoid.

So the bottom line is that the independent state legislature doctrine hangs out there, as a ticking time bomb, waiting to go off in a future case.