WASHINGTON – Lightning dissent in a high-profile election case written by Supreme Court Justice Clarence Thomas sparked a backlash on Monday from Democrats who accused one of the court’s most conservative members of having adopted baseless allegations of electoral fraud promoted by President Donald Trump after the November election.
In an 11-page dissent on the court’s decision not to challenge the increased use of mail-in ballots in Pennsylvania, Thomas admitted that the outcome of the election was not affected by the way the votes were cast. were expressed in the state of the battlefield. But he did raise questions about the reliability of postal voting, which echoed many of the same arguments Trump had raised in the weeks before and after the election.
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The dissent followed the court ruling on Monday to deny a challenge to the accommodations the Pennsylvania State Supreme Court made for postal voting during the coronavirus pandemic. The state, one of the few failures that ultimately led to the election of President Joe Biden, allowed the receipt of ballots from absentees for up to three days after election day, even in cases where these ballots were not clearly stamped on November 3.
In the end, despite partisan grudge over the issue and a host of lawsuits, there were too few ballots involved to make a difference in the outcome in Keystone State. But Thomas and two other Tory judges, Samuel Alito and Neil Gorsuch, said the legal issues should have been considered by the High Court to guide future elections.
“This decision to rewrite the rules appears to have affected too few ballots to change the outcome,” Thomas wrote. “But that may not be the case in the future.”
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But much of the resistance against Thomas centered on another argument of his dissent in which he seemed to cast doubt on the reliability of the postal ballots more widely. Thomas specifically reported a case of fraud from the 1990s during an election to the Philadelphia State Senate. In a footnote, he asserted that “an election without strong evidence of systemic fraud is not on its own sufficient to ensure electoral confidence.”
“It is also important to ensure that the fraud does not go unnoticed,” he wrote.
Critics said Thomas’ argument played into an idea adopted by Trump and others that fraud Could have existed, even though the former president had never proved it. Groups such as the Brennan Center for Justice have found that voter fraud is extremely rare.
“None of us should be shocked that Judge Thomas is writing a disconnected, radical and deranged opinion,” Democratic National Committee Chairman Jaime Harrison tweeted. “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 that Virginia Thomas, a conservative activist and justice wife, had apologized to her husband’s former lawyers for posting a series of messages supporting the Trump’s fraud allegations. Thomas declined to comment on his wife’s apology or previous pro-Trump statements.
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Trump’s week-long attack on the election results, which unfolded without evidence of problems of a magnitude that could have changed the outcome, culminated in a riot on the U.S. Capitol on January 6 in which a crowd of supporters of the president disrupted the count of the Electoral College. votes. The riot resulted in five deaths and a second impeachment of Trump.
“You don’t have to be a prosecutor to understand how ridiculous Judge Thomas’ dissent is,” Representative Ted Lieu, D-California tweeted, noting a conspiracy theory raised by some of Trump’s lawyers that Venezuelan socialists lend a hand to help Biden win.
“Fraud requires a culprit; that’s why the Trump people came up with Hugo Chavez,” Lieu said. “Otherwise, you say that over 7 million uncoordinated voters figured out how to commit election fraud undetected.”
Thomas, appointed by President George HW Bush in 1991, argued in his dissent that the issues raised in Pennsylvania should have been heard by the Supreme Court because they could come back in future elections. Republicans say the extension of the receipt of postal ballots was never approved by the state legislature and was authorized by the courts which relied on a vague provision of the law of the State demanding that the elections be “free and equal”.
An equally divided Supreme Court allowed the deadline to be extended in October. At the time, the court was still vacant following the death of Judge Ruth Bader Ginsburg. The link meant that the state court’s decision stood. Republicans returned to court days later – this time after Judge Amy Coney Barrett, a Trump candidate was confirmed. But Barrett did not take part in the review, and the court rejected a motion to expedite the case, noting that the election was then only a few days away.
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Citing a 2012 New York Times article, Thomas wrote in his dissent that the risk of fraud was “much more prevalent” for mail ballots than for in-person voting. This article also quoted election administrators as saying they believed fraud was less common in postal voting than innocent mistakes. Thomas said the nation was lucky the case only alleges “inappropriate” rule changes, not fraud, but said it was a “little comfort.”
Thomas himself seemed to agree that the fraud allegations were not part of the Pennsylvania case. Rather, the question put to the judges was whether the state Supreme Court erred in allowing the extension of the deadline for ballots.
Alito and Gorsuch wrote a separate dissent that did not raise fraud.
“I thought it was remarkable that Judge Thomas was alone in these comments, even though two other judges agreed the case should have been heard,” said Rick Hasen, an electoral law expert at the University of California-Irvine. “Justice Thomas gives the most credit to the unsubstantiated allegations of electoral fraud, or the possibility of such fraud in his view, which is an issue that is totally separate from the actual legal issue in the case.
Sylvia Albert, director of voting and elections at Common Cause, said the dissent appears to suggest that state supreme courts are not qualified to decide electoral matters in their state, which she described as a “direct violation. Of the division of power between states. and the federal government.
“The state legislature does not have the freedom to limit access to the ballot without judicial review,” Albert said. “In that case, the court ruled that the laws as drafted in the current state of a global pandemic were unconstitutional violations of the right to vote.”