WASHINGTON – A blowing disagreement in one high-profile election case written by the Supreme Court, Clarence Thomas, prompted a blowback on Monday from Democrats who accused one of the court’s most conservative members of embracing baseless allegations of voter fraud promoted by the president Donald Trump after the November election.
In a 11-page deviation from the court Deciding not to take up the challenge of increasing the use of postal voting in Pennsylvania, Thomas acknowledged that the outcome of the election did not change the way votes were cast on the battlefield. But he raised questions about the reliability of the ballot that echoed many of the same arguments that Trump raised in the weeks before and after the election.
The disagreement followed the court’s decision on Monday to dismiss a challenge to residents that the Pennsylvania Supreme Court did to vote by mail during the coronavirus pandemic. The state, one of a handful of tossups that ultimately led to the election of President Joe Biden, allowed polls to be received up to three days after election day, even in cases where these votes did not have a clear postmark on 3 November.
In the end, despite biased rancor on the issue and a host of lawsuits, there were too few votes in question to discriminate in the outcome in Keystone State. But Thomas and two other Conservative judges, Samuel Alito and Neil Gorsuch, said the legal issues should have been raised by the Supreme Court to govern future elections.
“The decision to rewrite the rules seems to have affected too few votes to change the result,” Thomas wrote. “But that may not be the case in the future.”
But much of the pushback against Thomas was focused on another argument of his disagreement where he seemed to doubt the reliability of submission votes more broadly. Thomas specifically pointed to a fraud case from the 1990s in a state Senate election in Philadelphia. In a footnote, he argued that “an election without strong evidence of systemic fraud alone is not enough for electoral confidence.”
“Also important is the assurance that fraud will not be detected,” he wrote.
Critics said Thomas’ argument played into an idea that Trump and others advocated as fraud could have existed, although the former president never proved it. Groups such as the Brennan Center for Justice have found that the right to vote is very unusual.
“None of us should be shocked that Justice Thomas would write an out of touch, radical and unwavering opinion,” tweeted the chairman of the Democratic National Committee, Jaime Harrison. “He and his wife showed us who they were a long time ago.”
Harrison’s response was in part a reference to a report this month Virginia Thomas, a conservative activist and the wife of justice, apologizes to her husband’s former law enforcement officers for posting a series of messages supporting Trump’s allegations of fraud. Thomas has declined to comment on his wife’s apology or her previous statements about Trump.
Trump’s week-long attack on the election results, which came without evidence of problems on a scale that could have changed the result, culminated in a riot in the US capital on January 6 where a mob of presidential supporters disrupted the Electoral College vote count. The riot resulted in five deaths and a second Trump indictment.
“You do not have to be a prosecutor to understand how ridiculous justice Thomas’ disagreement is,” the rep tweeted. Ted Lieu, D-California, and noted a conspiracy theory put forward by some of Trump’s lawyers that Venezuelan socialists lend a hand to help. Biden wins.
“Fraud requires a perpetrator; that’s why the Trump people came with Hugo Chavez,” Lieu said. “Otherwise, you say that over 7 million uncoordinated voters have figured out how to commit voter fraud undetected.”
Thomas, nominated by President George HW Bush in 1991, argued in his disagreement that the issues in Pennsylvania should have been heard by the Supreme Court because they could come up again in future elections. Republicans say the extension to receive submissions was never approved by state lawmakers and allowed by courts that relied on a vague provision in state law that required elections to be “free and equal.”
An even divided the Supreme Court allowed the extension to apply in October. At the time, the court still had a vacancy following the death of Justice Ruth Bader Ginsburg. The tie meant that the state’s court decision stood. Republicans returned to court days later – this time after the trial of Amy Coney Barrett, a Trump candidate. But Barrett did not participate in the review, and the court denied a request to expedite the case, noting that the election was then only a few days away.
Quotes from 2012 New York Times article Thomas wrote in his disagreement that the risk of fraud was “much more common” for submission votes than for personal voting. That article also quoted election administrators as saying they believed that fraud was less common in ballot papers than innocent errors. Thomas said the nation was fortunate that the statement only “wrong” rules change, not fraud, but said it was a “small consolation.”
Thomas seemed to admit that allegations of fraud were not part of the Pennsylvania case. Rather, the question before the judges raised whether the state Supreme Court had erred in allowing the extended time limit for voting.
Alito and Gorsuch wrote a separate disagreement that did not provoke fraud.
“I thought it was remarkable that Justice Thomas was alone in these comments, even though two other judges agreed that the case should have been heard,” said Rick Hasen, a suffrage expert at the University of California-Irvine. “Justice Thomas gives the most credibility to unsubstantiated allegations of voter fraud, or the potential for such fraud in his view, which is an issue that is completely different from the actual legal issue in the case.”
Sylvia Albert, director of voting and elections at the Common Cause, said the disagreement seemed to suggest that state supreme courts are not competent to decide electoral issues in their state, which she described as a “direct violation” of the division of power between states. and the federal government.
“State legislators do not have free control to restrict access to the vote without judicial review,” Albert said. “In this case, the court found that the laws written in the current state of a global pandemic were unconstitutional violations of the right to vote.”
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