An Election Integrity Issue The U.S. Supreme Court Can’t Duck?

A majority of the U.S. Supreme Court recently dismissed, without comment, lawsuits alleging election fraud in swing states during the 2020 Presidential election.

In a neat twist, the Court refused to hear the cases prior to the election because it was too close to election day and then, after the election, declared the cases were moot.

So far the Court has managed to avoid what may be the greatest crisis of confidence in America’s electoral process in U.S. history.

But it still faces another test.

A month prior to the 2020 election, the Court agreed to decide a challenge by the Democratic National Committee (DNC) to an Arizona law that prohibits ballot harvesting, a practice where a third-party often is paid by an advocacy group to fan out across poor neighborhoods to collect and then file absentee ballots. The DNC also wants to overturn an AZ policy requiring ballots be cast in the precinct that matches the voter’s home address.

The case is scheduled to be heard next month.

Ballot Harvesting

The AZ case arose after a Republican official posted on-line security footage of a Hispanic male carrying a box full of hundreds of ballots into a Maricopa County Elections Department in 2014.

The practice of ballot harvesting is acknowledged to be fraught with opportunity for fraud.

A bipartisan Commission on Federal Election Reform, chaired by former-President Jimmy Carter and former-Secretary of State James Baker, urged states in 2004 to prohibit people other than the actual voter from handling absentee ballots, except for family members, the post office, or election officials. The commission said “[a]bsentee ballots remain the largest source of potential voter fraud.”

The DNC claims limiting ballot harvesting would weaken the Voting Rights Act and states it is “directly tied” to race discrimination. The media seems to be falling into line.  Reuters on Wednesday summed up the dispute as an effort to enact “Republican-backed voting curbs.”

AZ’s GOP Attorney General Mark Brnovich called the policies “commonsense election provisions” designed to protect voter integrity.

Moot?

The Court earlier this month voted to dismiss challenges to the 2020 election in Pennsylvania, Wisconsin, Georgia, Arizona and Michigan.

One of the cases alleged Pennsylvania ‘s Supreme Court violated the U.S. Constitution by summarily invalidating the state legislature’s explicit deadline for mail-in ballot and extending the deadline for three days. Articles I and II of the Constitution reserve to state legislatures the power to set rules for federal elections.

In a dissent, Justice Clarence Thomas, joined by Justices Samuel Alito and Neil Gorsuch, criticized as “inexplicable” and “befuddling” the majority’s dismissal of the PA case. “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,” he wrote.

He said when the Court denied a request to expedite consideration of the case prior to election day at least four justices agreed the question was of national importance and there was a “strong likelihood that the State Supreme Court decision violates the Federal Constitution.”

Justice Thomas said the high court has repeatedly blocked rule changes made by courts close to an election because unclear rules “undermine the system. They sow confusion and ultimately dampen confidence in the integrity and fairness of elections.”

He concluded: “One wonders what this Court waits for… The decision to leave election law hidden beneath a shroud of doubt is baffling. By doing nothing, we invite further confusion and erosion of voter confidence. Our fellow citizens deserve better and expect more of us.”

 Pointedly, Justices Amy Coney Barrett and Brett M. Kavanaugh, both appointed by former GOP President Donald J. Trump, and Chief Justice John G. Roberts Jr., an appointee of former GOP President George W. Bush, did not decide with the dissenters.

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