Bench Memos

Law & the Courts

Bizarre Distortion of Justice Thomas’s Election Dissent

On Monday, Justices Thomas, Alito, and Gorsuch dissented from the Supreme Court’s decision to deny review of a Pennsylvania supreme court decision that extended by three days the legislatively enacted deadline for receiving mail-in ballots. The legal question raised by the state Republican party’s certiorari petition concerned whether and to what extent the Constitution’s conferral of authority on the “Legislature” of each state to determine the “Manner” of federal elections precludes nonlegislative officials from altering the rules set by the legislature. Justice Thomas and Justice Alito (joined by Justice Gorsuch) each wrote an opinion explaining why they dissented from the denial of review.

I’m amazed to see that Thomas’s dissent somehow generated this wildly distorted article from CNN’s veteran Supreme Court reporter Joan Biskupic. The article bears the title “Justice Clarence Thomas reveals some sympathy for Trump’s baseless fraud claims.” A tweet by Biskupic that links to the article reads “Justice Clarence Thomas aligns with Trump on baseless election fraud claims.” (Perhaps that was the article’s original title.) Biskupic’s opening sentence reads:

Supreme Court Justice Clarence Thomas on Monday claimed election fraud is a threat to America, revealing in a forceful dissent some support for former President Donald Trump and Republicans who have refused to accept the result of the 2020 election.

Two sentences later, she asserts that Thomas’s dissent “stands out for how much it subscribed to the Trump worldview of fraud.” And she finds it noteworthy that “Thomas referred to ‘fraud’ 10 times and emphasized alleged flaws in ballots that arrive by mail.”

A trusting reader might imagine that Thomas’s dissent is replete with references to Dominion and Smartmatic and to various of Trump’s other allegations of fraud. In fact, Thomas makes no mention of such allegations. Nor does the word “Trump” appear a single time in his opinion. Moreover, Thomas states in his opening paragraph (and repeats twice later) that the Pennsylvania supreme court decision that the Court was asked to review “seems to have affected too few ballots to change the outcome of any federal election.” That’s not a statement you ever heard Donald Trump make. (Biskupic refers to it in the 20th paragraph of her 24-paragraph article.)

Far from “revealing … some support” for those “who have refused to accept the result of the 2020 election,” Thomas states flatly that “the 2020 election is now over.” Although Biskupic’s reader would never know it, all of Thomas’s references to “fraud”—11 by my count, not 10—come in the context of his explaining why it is better for the Court to decide the legal question outside the narrow window between voting and final certification of the election (what he calls “postelection judicial review”). Let’s look at all 11.

Here are the first three:

This expansion [of voting by mail] impedes postelection judicial review because litigation about mail-in ballots is substantially more complicated. For one thing, as election administrators have long agreed, the risk of fraud is “vastly more prevalent” for mail-in ballots. Liptak, Error and Fraud at Issue as Absentee Voting Rises, N. Y. Times, Oct. 6, 2012. The reason is simple: “[A]bsentee voting replaces the oversight that exists at polling places with something akin to an honor system.” Heather Gerken, now dean of Yale Law School, explained in the same New York Times article that absentee voting allows for “simpler and more effective alternatives to commit fraud” on a larger scale, such as stealing absentee ballots or stuffing a ballot box, which explains “‘why all the evidence of stolen elections involves absentee ballots and the like.’” The same article states that “[v]oting by mail is now common enough and problematic enough that election experts say there have been multiple elections in which no one can say with confidence which candidate was the deserved winner.”

That’s right: the first three instances all come from his reliance on a New York Times article. Biskupic’s tweet would be much more accurate if it read “Justice Clarence Thomas aligns with liberal Yale law school dean on fraud risks from absentee voting.”

Here are the remaining eight:

Two years ago, a congressional election in North Carolina was thrown out in the face of evidence of tampering with absentee ballots. Because fraud is more prevalent with mail-in ballots, increased use of those ballots raises the likelihood that courts will be asked to adjudicate questions that go to the heart of election confidence.

[Footnote appended to previous paragraph:] 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. 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.

Fraud is not the only aspect of mail-in ballots that complicates postelection judicial review. Also relevant are the corresponding safeguards that States put in place to ameliorate that heightened risk of fraud. To balance the “strong interest” of ballot access with the “‘compelling interest in preserving the integrity of [the] election process,’” Purcell, 549 U. S., at 4, many States have expanded mail-in ballots but sought to deter fraud—and create mechanisms to detect it—by requiring voters to return ballots in signed, dated secrecy envelopes.

How anyone could mischaracterize Thomas’s dissent as Biskupic does is beyond me.

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