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Laurence Tribe: Justice Thomas is out of order on 2020 election

The Hill logo The Hill 2/24/2021 Laurence Tribe, opinion contributor
Clarence Thomas wearing glasses posing for the camera: Laurence Tribe: Justice Thomas is out of order on 2020 election © The Hill Laurence Tribe: Justice Thomas is out of order on 2020 election

The 2020 election revealed rot in this country's institutions. Donald Trump degraded the presidency; senators like Josh Hawley (R-Mo.) and Ted Cruz (R-Texas) degraded the Congress. And, in a direct shot at the legitimacy of Joe Biden's election as our 46th president, Justice Clarence Thomas made clear that the "Big Lie" about the 2020 election - a major source of institutional decay - has infected the Supreme Court, too.

Thomas staked out his Trumpian position in a dissent from the Supreme Court's dismissal of two election-related lawsuits in Pennsylvania. Republicans in Pennsylvania had asked the Supreme Court to answer a recurring question that plagued the 2020 election: Does the United States Constitution permit the members of a state legislature, acting as a gang of elected lawmakers unconstrained by the state's own constitution, to seize control of a presidential election by naming their own slate of electors to replace those chosen by the votes of the state's people?

The answer to that crucial question depends in part on parsing Article II of the U.S. Constitution, which establishes that presidential electors are appointed "in such Manner as the Legislature [of the State] may direct." Some maintain that, by vesting the power to choose electors in state "Legislature[s]," the Constitution has designated a free-range bunch of state representatives to meet wherever they like and do whatever suits their fancy. They claim the Constitution authorized state legislatures to ignore procedural requirements (like the number of votes needed to pass a bill) drawn from the state's constitution and even substantive state constitutional provisions (like those enshrining the right to fair and equal voting opportunities).

Most constitutional scholars, myself included, reject this Wild West view of the Constitution. Instead, when the Constitution empowers a state "Legislature," it takes legislature as it finds it: a body defined and circumscribed both by the state's constitution as authoritatively construed by the state's highest court, and by the federal Constitution as construed by the U.S. Supreme Court.

The Pennsylvania case squarely presented this question. Its legislature had long since fixed a strict deadline for mail-in voting: Any ballot received after 8 p.m. on Election Day was to be tossed out. But in September 2020 - well in advance of the election - the Pennsylvania Supreme Court held that rigidly enforcing that rule during the COVID-19 pandemic would violate Pennsylvania's Constitution by disenfranchising innocent voters whose ballots, because of postal slowdowns and pandemic exigencies beyond the voters' control, might not arrive by the deadline. The Pennsylvania Supreme Court extended the mail ballot deadline by three days and directed that ballots received by the new deadline be counted even if they lacked evidence, such as a postmark, that they had been mailed by Election Day.

At the time, the state supreme court's manifestly reasonable accommodation sparked an outburst by Justice Thomas, joined by Justices Samuel Alito, Neil Gorsuch and Brett Kavanaugh, accusing the state court of trampling on the authority of the Pennsylvania Legislature to set the state's election laws. No fifth vote to invalidate the Pennsylvania Supreme Court's interpretation of the Pennsylvania State Constitution was forthcoming, however. Chief Justice Roberts declined to join the quartet, as did newly seated Justice Amy Coney Barrett.

Now, the election having long since ended, the U.S. Supreme Court's vote against hearing the case was more decisive, 6-3, with only Justices Thomas, Alito and Gorsuch in dissent. As a matter of prudence, I might well have agreed with the six-justice majority that put the 2020 election behind them rather than address the thorny question of just how far a state's highest court can go to revise its legislature's rules in a presidential election without violating Article II. However, Alito and Gorsuch were not plainly wrong, as some argue, for wanting to use the case as an occasion to address what they rightly identified as an unresolved and potentially recurring question and to do so without the pressures, both temporal and political, of an impending presidential election.

Justice Thomas's solo dissent is another matter altogether. The question at hand concerned only the relationship between a state legislature and the state constitution as construed by the state's highest court. But Thomas seized the opportunity to rant against the nonexistent dangers of undetectable fraud and to suggest that the 2020 election - the most secure and reliable election in our nation's history - was clouded by uncertainty that only the U.S. Supreme Court could clarify. While he had to concede that the Pennsylvania Supreme Court's decision "does not appear to have changed the outcome in any federal election," his ominous warning that "we may not be so lucky in the future" stoked the same false and self-fulfilling narrative of fear and victimization that on Jan. 6 wrought death and destruction on the epicenter of democracy.

Moreover, Justice Thomas shamelessly distorted the words of Yale Law School's dean, the distinguished election law scholar Professor Heather Gerken. In the midst of Republicans' push to pass voter ID laws that ostensibly secured elections but actually disenfranchised Democratic voters, Dean Gerken had observed that anyone bent on pulling off voter fraud on a scale large enough to swing an election would be more likely to "steal some absentee ballots or stuff a ballot box or bribe an election administrator or fiddle with an electronic voting machine." So here's the kicker: Gerken's point was simply that polling places are secure, so they don't need extra "security" from voter-suppressing ID laws. Her point was not, as Justice Thomas asserted, that mail-in voting is insecure. Turning Dean Gerken's point upside-down, Justice Thomas cited it for the altogether different and entirely unsubstantiated proposition that voting by mail is unacceptably vulnerable to fraud. Even if that inference could be drawn - which it can't - it had nothing at all to do with the case before the Court.

Justice Thomas's opinion is particularly egregious because those most aggrieved can hardly speak up. Joe Biden's need to govern makes it counterproductive to engage in unending debate about the legitimacy of the 2020 election. Dean Gerken's role as head of one of our great law schools makes it awkward for her to chastise that school's own distinguished alumnus, Justice Thomas, for his intellectual dishonesty.

Dean Gerken's silence may itself speak volumes, but the rest of us cannot remain silent. Justice Thomas's opinion is just the latest reminder that the Supreme Court too bears responsibility for avoiding the degradation of American democracy.

Laurence H. Tribe is the Carl M. Loeb University Professor and Professor of Constitutional Law Emeritus at Harvard, the author of many books about the Constitution and the Court, and an accomplished Supreme Court advocate. Follow him on Twitter @tribelaw.

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