WASHINGTON – A blistering dissent rolled into one high profile election case Clarence Thomas, written by the Supreme Court Justice, on Monday called for a backlash from Democrats who accused one of the court’s most conservative members of accepting unsubstantiated allegations of president-sponsored electoral fraud Donald Trump after the November election.
In one (n 11-page objection from the court When Thomas decided not to question the expanded use of postal ballot papers in Pennsylvania, he admitted that the way votes were cast in the battlefield state had not changed the election result. However, he asked questions about the reliability of the postal vote, which reflected many of the arguments Trump had made in the weeks before and after the election.
Fact check:What’s True About 2020 Elections, Vote Counting, Electoral College?
The dissent followed the court’s decision on Monday to reject a housing challenge that the Pennsylvania State Supreme Court raised for absentee voting during the coronavirus pandemic. The state, one of the few grievances that ultimately led to the election of President Joe Biden, allowed postal ballots to be received for up to three days after election day, even in cases where those ballots were held had no clear postmark dated November 3rd.
In the end, despite the partisan rancor on the issue and a multitude of lawsuits, there were too few ballots to improve the Keystone State score. However, Thomas and two other Conservative justices, Samuel Alito and Neil Gorsuch, said the legal issues should have been taken up by the Supreme Court to guide future elections.
“This decision to rewrite the rules seems to have affected too few ballots to change the outcome,” wrote Thomas. “But that might not be the case in the future.”
More:The Supreme Court will not hear the 2020 election case that questions Pennsylvania ballots
Much of the setback against Thomas, however, centered on another argument of his objection, in which he appeared to question the reliability of postal ballot papers in the broader sense. Thomas made explicit reference to a 1990s Senate election fraud case in Philadelphia. In a footnote, he claimed that “an election free from strong evidence of systemic fraud is not enough for electoral confidence alone”.
“It is also important to know that fraud will not go undetected,” he wrote.
Critics said Thomas’ argument contributed to an idea shared by Trump and others that fraud could have existed, although the former president never proved it. Groups like the Brennan Center for Justice have found that election fraud is extremely rare.
“None of us should be shocked that Justice Thomas would write a pristine, radical and awkward opinion,” tweeted National Democratic Committee chairman Jaime Harrison. “He and his wife showed us who they are a long time ago.”
Harrison’s response was in part a reference to a report earlier that month, the Virginia Thomas, a Conservative activist and the Lady Justice apologized to her husband’s former employees for posting a series of messages in support of Trump’s fraud allegations. Thomas has refused to comment on his wife’s apology or her previous pro-Trump statements.
More:Ginni Thomas, wife of Supreme Court Clarence Thomas, apologizes for the pro-Trump remarks
Trump’s week-long attack on election results, with no sign of problems on a scale that could have changed the outcome, culminated in a January 6 riot in the U.S. Capitol in which crowds of the President’s supporters disrupted the electoral college count Be right. The uprising resulted in five deaths and a second impeachment against Trump.
“You don’t have to be a prosecutor to understand how ridiculous the dissent from Justice Thomas is,” tweeted Rep. Ted Lieu, D-Calif., Noting a conspiracy theory put forward by some of Trump’s attorneys put Venezuelan socialists at hand in hand help Biden wins.
“Fraud requires a perpetrator. That’s why the Trump people came up with Hugo Chavez,” said Lieu. “Otherwise, you say that over 7 million uncoordinated voters have figured out how to undetectedly commit electoral fraud.”
Thomas, who was nominated in 1991 by President George HW Bush, argued in his contradiction that the questions raised in Pennsylvania should have been heard by the Supreme Court because they might arise again in future elections. Republicans say the extension for receiving postal ballot papers was never approved by lawmakers and was approved by courts based on a vague provision in state law that elections must be “free and equal.”
A steady one divided Supreme Court allowed the deadline to be extended in October. At this point, the court still had a vacancy after Judge Ruth Bader Ginsburg’s death. The tie meant the state court’s decision stood. The Republicans returned to court days later – this time after Justice Amy Coney Barrett, a Trump nominee, was upheld. Barrett did not participate in the review, however, and the court denied a motion to expedite the case, finding that the election was only days away at that point.
More:The Pennsylvania Supreme Court sets the November 6th deadline for returning postal ballots
Quote from a 2012 New York Times In an article Thomas wrote in his dissent that the risk of fraud with postal ballot papers was “far more common” than with personal votes. This article also quoted election administrators who believed fraud is less common than innocent mistakes in mail-in voting. Thomas said the nation was lucky enough that the case alleged only “inappropriate” rule changes, not fraud, but that was “a small consolation”.
Thomas himself seemed to acknowledge that allegations of fraud were not part of the Pennsylvania case. Rather, the question before the judges centered on whether the state Supreme Court had made a mistake in allowing the extended deadline for voting.
Alito and Gorsuch wrote a separate dissent that did not provoke fraud.
“I found it remarkable that Justice Thomas was alone on these comments, even though two other judges agreed that the case should have been heard,” said Rick Hasen, an expert on suffrage at the University of California-Irvine. “Justice Thomas gives the most credibility to unsupported claims of electoral fraud or the potential for such fraud, in his opinion, which is an issue that is completely separate from the actual legal issue in this case.”
Sylvia Albert, director of polls and elections at Common Cause, said the dissent appears to suggest that the state’s supreme courts are not qualified to rule on electoral issues in their state, which she described as a “direct violation” of the separation of powers between states and federal government.
“The state parliament does not have a free hand to restrict access to the voting slip without judicial review,” said Albert. “In this case, the court found that the laws as written in the current state of a global pandemic constitute unconstitutional violations of the right to vote.”
