Supreme Court rejects Republican challenge to Pennsylvania vote
WASHINGTON — The Supreme Court on Tuesday refused a longshot request from Pennsylvania Republicans to overturn Joe Biden’s victory in the state, delivering an unmistakable rebuke to President Donald Trump in the forum on which he had pinned his hopes.
The Supreme Court’s order was all of one sentence, and there were no noted dissents. But it was nonetheless a major setback for Trump and his allies, who have compiled an essentially unbroken losing streak in courts around the nation. They failed to attract even a whisper of dissent in the court’s first ruling on a challenge to the outcome of the election.
The court now has three justices appointed by Trump, including Justice Amy Coney Barrett, whose rushed confirmation in October was in large part propelled by the hope that she would vote with the president in election disputes. But there was no indication that she or the other Trump appointees were inclined to embrace last-minute arguments based on legal theories that election law scholars said ranged from the merely frivolous to the truly outlandish.
Trump and his Republican allies have lost about 50 challenges to the presidential election in the past five weeks, as judges in at least eight states have repeatedly rejected a litany of unproven claims — that mail-in ballots were improperly sent out, that absentee ballots were counted wrongly, that poll observers were not given proper access to the vote count, and that foreign powers hacked into and manipulated voting machines.
Trump has not come close — even once — to overturning the results of a single state’s election, let alone the results in at least three states that he would need to take a victory from Biden. And around the country, judges have started to express their frustration with his attempts to have the courts substitute their will for those of voters.
Last month, for instance, the federal appeals court in Philadelphia rejected a different challenge to the results in Pennsylvania in scathing terms.
“Free, fair elections are the lifeblood of our democracy,” wrote Judge Stephanos Bibas, who was appointed to the court by Trump. “Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here.”
“Voters, not lawyers, choose the president,” Bibas wrote. “Ballots, not briefs, decide elections.”
On Friday, Justice Brian Hagedorn of the Wisconsin Supreme Court issued an even stronger statement in an opinion rejecting a Republican attempt to overturn that state’s elections results. “Judicial acquiescence to such entreaties built on so flimsy a foundation would do indelible damage to every future election,” he wrote. “This is a dangerous path we are being asked to tread.”
In Tuesday’s case, the justices said they would not block a ruling from Pennsylvania’s highest court that had rejected a challenge to the state’s use of mail ballots Nov. 3.
The request that the Supreme Court intercede had faced substantial legal hurdles since it was filed long after the enactment of a 2019 statute that allowed mailed ballots and was based on questions of state, rather than federal, law.
In late November, the Pennsylvania Supreme Court ruled against the plaintiffs, led by Rep. Mike Kelly, a Republican, on the first ground, saying they could have challenged the 2019 law allowing vote by mail for any reason more than a year ago.
“At the time this action was filed on Nov. 21, 2020, millions of Pennsylvania voters had already expressed their will in both the June 2020 primary election and the November 2020 general election,” the court said. “Petitioners failed to act with due diligence in presenting the instant claim. Equally clear is the substantial prejudice arising from petitioners’ failure to institute promptly a facial challenge to the mail-in voting statutory scheme, as such inaction would result in the disenfranchisement of millions of Pennsylvania voters.”
The plaintiffs had asked the state court to nullify mailed ballots after the fact or to direct the state legislature to pick Pennsylvania’s electors.
The filing in the U.S. Supreme Court took issue with the Pennsylvania Supreme Court’s interpretation of state law and sought an order telling state officials not to take further actions to certify the vote in Pennsylvania or “to nullify any such actions already taken” while the plaintiffs pursued an appeal.
The U.S. Supreme Court does not ordinarily second-guess such rulings.
In urging the justices not to intercede, lawyers for the state said the Republicans’ requests were “an affront to constitutional democracy.”
“Petitioners ask this court to undertake one of the most dramatic, disruptive invocations of judicial power in the history of the Republic,” they wrote. “No court has ever issued an order nullifying a governor’s certification of presidential election results.”
They said there were four flaws in the challengers’ arguments. In the U.S. Supreme Court, the challengers said the state law was at odds with federal constitutional provisions governing elections. But they had not squarely made that argument in their main filings in the state courts, and the Supreme Court does not ordinarily decide questions not first decided by a lower court.
Moreover, lawyers for the state wrote, the Pennsylvania Supreme Court’s decision turned on a question of state law. That “adequate and independent state-law ground” for the decision, they wrote, bars U.S. Supreme Court review.
They added that the challengers had not suffered the sort of concrete injury that would give them standing to sue and that the 2019 law was not at odds with the state constitution.
In any event, lawyers for the state wrote, the matter was moot, since the state’s election results in favor of Biden had been certified and submitted. The challengers’ remaining argument, they wrote, was that the Supreme Court should simply overturn the state’s election results. That request, they wrote, was breathtaking and unconstitutional.
As the court was dismissing the Pennsylvania case Tuesday, a second election case came before it, an audacious lawsuit filed directly in the court by Texas against four other states. It asked the justices to extend the Dec. 14 deadline for certification of presidential electors.
The suit, filed by Texas Attorney General Ken Paxton, said Georgia, Michigan, Pennsylvania and Wisconsin had engaged in election irregularities that require investigation, and it asked the court to “enjoin the use of unlawful election results without review and ratification by the defendant states’ legislatures.”
Legal experts called the suit preposterous. “It looks like we have a new leader in the ‘craziest lawsuit filed to purportedly challenge the election’ category,” Stephen Vladeck, a law professor at the University of Texas, wrote on Twitter.
The Constitution gives the Supreme Court “original jurisdiction” to hear disputes “in which a state shall be party.” In such cases, the Supreme Court acts much like a trial court, appointing a special master to hear evidence and issue recommendations. Although the Constitution seems to require the court to hear cases brought by states, the court has ruled that it has discretion to turn them down and often does.
When the court does exercise its original jurisdiction, it is usually to adjudicate disputes between two states over issues like water rights. In 2016, the justices turned down a request from Nebraska and Oklahoma to file a challenge to Colorado’s legalization of recreational marijuana. The states said the Colorado law had spillover effects, taxing neighboring states’ criminal justice systems and hurting the health of their residents.
Texas asked the justices to put its case on an exceptionally fast track. The court did not adopt the state’s proposed schedule but did call for responses by Thursday.
In a blog post, Richard Hasen, a law professor at the University of California, Irvine, called the Texas filing a “press release masquerading as a lawsuit.”