WASHINGTON – A blistering dissent in a high-profile election case written by Supreme Court Justice Clarence Thomas prompted blowback Monday from Democrats who accused one of the court’s most conservative members of embracing baseless claims of voter fraud promoted by President Donald Trump after the November election.
In an 11-page dissent from the court’s decision not to take up a challenge to the expanded use of mail ballots in Pennsylvania, Thomas acknowledged that the outcome of the election was not changed by the way votes were cast in the battleground state. But he raised questions about the reliability of mail-in voting that echoed many of the same arguments Trump raised in the weeks before and after the election.
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The dissent followed the court’s decision Monday to turn away a challenge to accommodations the Pennsylvania state Supreme Court made for mail-in voting during the coronavirus pandemic. The state, one of a handful of tossups that ultimately led to the election of President Joe Biden, allowed absentee ballots to be received up to three days after Election Day, even in cases where those ballots did not have a clear Nov. 3 postmark.
In the end, despite the partisan rancor over the issue and a bevy of lawsuits, there were too few ballots at issue to make a difference in the outcome in the Keystone State. But Thomas and two other conservative justices, Samuel Alito and Neil Gorsuch, said the legal questions should have been taken up by the high court to guide future elections.
“That decision to rewrite the rules seems to have affected too few ballots to change the outcome,” Thomas wrote. “But that may well not be the case in the future.”
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But much of the pushback against Thomas was focused on another argument of his dissent in which he appeared to cast doubt on the reliability of mail-in ballots more broadly. Thomas pointed specifically to a case of fraud from the 1990s in a state Senate election in Philadelphia. In a footnote, he asserted that “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,” he wrote.
Critics said Thomas’ argument played into an idea espoused by Trump and others that fraud could have existed, even though the former president did not ever prove it. Groups such as the Brennan Center for Justice have found voter fraud is exceedingly rare.
“None of us should be shocked that Justice Thomas would write an out of touch, radical & unhinged opinion,” the chairman of the Democratic National Committee, Jaime Harrison, tweeted. “He and his wife showed us who they were a very long time ago.”
Harrison’s response was in part a reference to a report this month that Virginia Thomas, a conservative activist and the justice’s wife, apologized to her husband’s former law clerks for posting a series of messages supporting Trump’s claims of fraud. Thomas has declined to comment on his wife’s apology or her earlier pro-Trump statements.
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Trump’s weekslong assault on the election results, which came without evidence of problems on a scale that could have changed the result, culminated in a riot at the U.S. Capitol on Jan. 6 in which a mob of the president’s supporters disrupted the counting of Electoral College votes. The riot resulted in five deaths and a second Trump impeachment.
“You don’t have to be a prosecutor to understand how ludicrous Justice Thomas’ dissent is,” tweeted Rep. Ted Lieu, D-Calif., noting a conspiracy theory raised by some of Trump’s attorneys that Venezuelan socialists hand a hand in helping Biden win.
“Fraud requires a perpetrator; that’s why Trump folks came up with Hugo Chavez,” Lieu said. “Otherwise you’re saying over 7 million uncoordinated voters figured out how to commit voter fraud undetected.”
Thomas, nominated by President George H.W. Bush in 1991, argued in his dissent that the questions raised in Pennsylvania should have been heard by the Supreme Court because they could come up again in future elections. Republicans say the extension for receiving mail-in ballots was never approved by the state legislature and was allowed by courts that relied on a vague provision of state law requiring elections to be “free and equal.”
An evenly divided Supreme Court allowed the deadline extension to stand in October. At the time, the court still had a vacancy following the death of Justice Ruth Bader Ginsburg. The tie meant the state court decision stood. Republicans returned to the court again days later – this time after Justice Amy Coney Barrett, a Trump nominee had been confirmed. But Barrett did not take part in the review, and the court denied a motion to expedite the case, noting that the election was at that point only days away.
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Quoting from a 2012 New York Times article, Thomas wrote in his dissent that the risk of fraud was “vastly more prevalent” for mail-in ballots than for in-person voting. That article also quoted election administrators saying they believed fraud was less common in mail-in voting than innocent errors. Thomas said the nation was fortunate the case alleged only “improper” rules changes, not fraud, but said that was a “small comfort.”
Thomas himself seemed to acknowledge that allegations of fraud were not part of the Pennsylvania case. Rather the question before the justices turned on whether the state supreme court had erred by allowing the extended deadline for ballots to stand.
Alito and Gorsuch wrote a separate dissent that did not raise fraud.
“I thought it was notable Justice Thomas was alone in these comments, even though two other justices agreed that the case should have been heard,” said Rick Hasen, an election law expert at the University of California-Irvine. “Justice Thomas gives the most credence to unsupported claims of voter fraud, or the potential for such fraud in his opinion, which is an issue that is wholly divorced from the actual legal question 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 election issues in their state, which she described as a “direct violation” of the division of power between the states and federal government.
“The state legislature does not have free reign to limit access to the ballot without judicial review,” Albert said. “In this case, the court found that the laws as written in the current state of a global pandemic were unconstitutional infringements on the right to vote.”