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The 2020 election still hovers over the Supreme Court


So far, the justices declined several requests to dive into one of the most litigious elections in history, denying petitions from then-President Donald Trump and other Republicans seeking to overturn election result in multiple states Biden won.

But at their closed-door conference on Friday the justices discussed a case that has been lingering on the docket since just after the election, brought by a former GOP congressional candidate concerning a state Supreme Court decision that allowed an expansion of ballot deadlines amidst the pandemic.

Trump’s name isn’t on the case and the court’s action wouldn’t impact the last election. But the justices surely know that if they engage now, even with a promise to look toward future elections, the former President would likely link their action to his own loss.

“With the election finally settled, the justices might believe now is the time to wade into the issue, though certainly they may prefer to do so in a case where the word ‘Trump’ would not have to be uttered and give the former president more fodder to advance the false claim that he actually won the election,” said election law expert Richard L. Hasen of the University of California, Irvine School of Law.

It was a hotly debated issue in the weeks before and after the election as some Republicans charged that state courts might not have the final say on their state voting rules. The arguments goes that the Constitution gives the state legislature — not the governor or state courts — the final word on elections and the manner by which states choose electors. Critics of the so called “independent state legislature” doctrine say that “legislature” is a broad term including commissions given legislative powers by the state constitution.

After the election, Trump invited leaders of the Pennsylvania legislature to the White House as he continued to make baseless claims that widespread voter fraud had occurred although no court agreed. Biden won the state by roughly 82,000 votes.

Although the court never waded into the election, on February 22, three justices, Clarence Thomas, Samuel Alito and Neil Gorsuch dissented when their colleagues declined to take up similar cases concerning the same Pennsylvania Supreme Court decision.

The cases, Alito said, present “important and recurring constitutional question” that should be determined. “Now the election is over, and there is no reason for refusing to decide the important question that these cases pose,” he added. And while Justice Brett Kavanaugh sided with the conservatives in an early point in the dispute, neither he nor Amy Coney Barrett provided the necessary vote last winter.

“A majority of Supreme Court justices could well believe that state legislatures have extraordinary power when it comes to setting the rules for federal elections, even if it means overruling state supreme courts relying on state constitutions to limit legislative power,” Hasen said. “It would be a remarkable shift in election power in the states.”

Republicans claimed that state legislatures had been cut out of the process of setting the rules for federal elections.

Democratic congressman calls on Justice Stephen Breyer to retire

The case is brought by a former republican congressional candidate, Jim Bognet, and four individual voters who argued the state high court exceeded its authority when it ordered the expansion amidst the pandemic.

In court papers, they make clear that the case is forward looking — not meant to impact the last election but future challenges going forward. But it comes as the former president is still bitter that the Supreme Court did not step into reverse election results, raising the possibility that if the court agrees to take up the case Trump will react once again rekindling battles over the 2020 election.

The 3rd US Circuit Court of Appeals dismissed this case holding that the challengers did not have the legal right to bring the case. The challengers are asking the Supreme Court to reverse that decision and hold that the Pennsylvania…



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