Justice Thomas Issues Dissenting Opinion From Supreme Court in Election Case

February 22, 2021 Updated: February 23, 2021

Supreme Court Justice Clarence Thomas issued a dissenting opinion regarding the high court’s decision not to take up a case that challenged Pennsylvania’s Nov. 3 election results.

The court on Feb. 22 announced that it won’t take up lawsuits challenging a Pennsylvania state court decision that relaxed ballot-integrity measures, including a move to extend the ballot-receipt deadline during the November election by three days amid the CCP virus pandemic. Former President Donald Trump and the state’s Republican Party urged the court to take up a review of the Pennsylvania Supreme Court ruling.

“This is not a prescription for confidence,” Thomas wrote on Feb. 22, adding that “changing the rules in the middle of the game is bad enough.” Thomas, considered by many to be the most conservative justice, said the court should have granted a review.

“That decision to rewrite the rules seems to have affected too few ballots to change the outcome of any federal election. But that may not be the case in the future,” Thomas wrote (pdf). “These cases provide us with an ideal opportunity to address just what authority nonlegislative officials have to set election rules, and to do so well before the next election cycle. The refusal to do so is inexplicable.”

Thomas was joined by Justices Samuel Alito and Neil Gorsuch in dissenting.

“If state officials have the authority they have claimed, we need to make it clear. If not, we need to put an end to this practice now before the consequences become catastrophic,” Thomas, an appointee of former President George H.W. Bush, wrote.

Thomas also appeared to make a reference to allegations of fraud and irregularities during the Nov. 3 election.

“We are fortunate that many of the cases we have seen alleged only improper rule changes, not fraud,” he wrote. “But that observation provides only small comfort. An election free from strong evidence of systemic fraud is not alone sufficient for election confidence. Also important is the assurance that fraud will not go undetected.”

The Supreme Court on Feb. 22 also declined to review a bid by Rep. Mike Kelly (R-Pa.) and others who asked the court to strike down a policy that expanded mail-in ballots.

A lawyer for Kelly, Greg Teufel, told the Pittsburgh Post-Gazette last week that “it’s important the court should take an interest in whether Pennsylvania’s election laws are administered constitutionally or not, and in accordance with the Pennsylvania constitution and with the federal constitution.” Teufel noted that before the court’s decision on Feb. 22, there was a slim chance of the justices taking it up.

Trump still has a request on the Supreme Court docket regarding his challenge to changes that the Wisconsin Election Commission ordered last year.