A longtime conservative, Thomas’ legal views naturally aligned with the Trump administration. But his dissent stands out for how much it subscribed to the Trump worldview of fraud, a notion debunked by election law experts and that has failed overwhelmingly in dozens of state and federal court challenges.
“We are fortunate that many of the cases we have seen alleged only improper rule changes, not fraud. But that observation provides only small comfort,” Thomas said, dissenting as the court rejected a long-pending challenge to Pennsylvania mail-in voting procedures.
“An election free from strong evidence of systemic fraud is not alone sufficient for election confidence,” Thomas wrote.
In his 11-page dissent on Monday, Thomas referred to “fraud” 10 times and emphasized alleged flaws in ballots that arrive by mail. He said review of them may be particularly subjective, for example on the validity of signatures, and require state officials to sift through millions of ballots. Each state determines its own election procedures, for balloting in person or by mail, within the safeguards of the federal Voting Rights Act and Constitution.
“The decision to leave election law hidden beneath a shroud of doubt is baffling,” he wrote. “By doing nothing, we invite further confusion and erosion of voter confidence. Our fellow citizens deserve better and expect more of us.”
The 2020 election, occurring in the midst of the coronavirus pandemic, increased mail-in voting and then led to a raft of lawsuits, ending with no proof of election fraud, let alone widespread cheating that could have flipped an election result.
Defenders of Trump, who lost the November 3 presidential contest to Joe Biden, have claimed rampant fraud and a “stolen” election, without evidence.
“Many of us are hurting, after leaving it all on the field, to preserve the best of this country,” she wrote in one post-election email.
“Look, Joe Biden’s the president, there were a few states that did not follow their state laws, that’s really the dispute that you’ve seen continue on,” he said on ABC’s “This Week.” “Once the electors are counted, yes, he is the legitimate president. But if you’re going to ignore the fact that there were states that did not follow their own state legislatively set laws, that’s the issue at heart.”
Election experts reject such contentions, and former Attorney General William Barr, a Trump appointee, said in December the Justice Department found no evidence of widespread fraud in the 2020 election.
Thomas, a 1991 appointee of GOP President George H.W. Bush, has made clear in written opinions and statements during oral arguments that he believed Trump and his administration were unfairly targeted in litigation.
The constitutional question with Pennsylvania
The Supreme Court has generally sidestepped Trump election controversies, and even as Justices Samuel Alito and Neil Gorsuch dissented and said the majority should hear the Pennsylvania dispute to clarify rules for the future, they declined to mention fraud or voter irregularities on the ground and did not join Thomas’ dissent.
The legal question centered on the power of a state court to alter electoral rules. Alito and Gorsuch insisted that open-ended query should be resolved, especially because it could arise in future elections. Thomas went further to suggest the GOP challengers could win their case.
“Because the Federal Constitution, not state constitutions, gives state legislatures authority to regulate federal elections,” Thomas wrote, “petitioners presented a strong argument that the Pennsylvania Supreme Court’s decision violated the Constitution by overriding the clearly expressed intent of the legislature.”
Thomas observed that the state court’s decision involved too few ballots to affect the outcome of any federal election. “But that may not be the case in the future,” he said, reinforcing his larger point regarding election integrity.
“An election system lacks clear rules when, as here, different officials dispute who has authority to set or change those rules,” Thomas wrote. “This kind of dispute brews confusion because voters may not know which rules to follow. Even worse … competing candidates might each declare victory under different sets of rules.”
Pennsylvania state election officials enforced the state court deadline and, under a prior court order, segregated the late-arriving ballots, of which there were only about 10,000, according to the secretary of state’s office.
“If state officials have the authority they have claimed, we need to make it clear,” Thomas argued. “If not, we need to put an end to this practice now before the consequences become catastrophic.”
The court’s majority may have believed the dispute no longer legally relevant or considered it too politically fraught to hear even with the 2020 election over. After having sat on the lawsuit for four months, none of the justices in the majority explained their reasoning.