You can find Justice Thomas’s opinion, dissenting from denial of cert. in two-Pennsylvania election cases, and Justice Alito’s separate dissent joined by Justice Gorsuch in the same cases HERE. The Court without noted dissent denied cert. in another PA case, the Kelly case. It takes four votes to agree to hear the case, and 5 to rule on the merits. There is no indication that Justice Barrett recused herself in consideration of the merits of these cases.
None of the dissenting Justices believed that these cases could somehow retroactively affect the outcome of the 2020 election. Indeed, they say it would not, but that the cases, while moot, should still have been heard because they present issues that will return to the federal courts. The main issue is the extent to which state courts, relying on state constitutions, may change rules for federal elections put in place by state legislatures. In the run-up to the 2020 elections, these three Justices, along with Justice Kavanaugh (who did not note a dissent in any of these cases today) expressed the view that the Constitution constrains the actions of state courts in such circumstances (viewing the legislature’s power as very broad).
This “independent state legislature” doctrine is a ticking time bomb, and it is an issue the Court is going to have to resolve, because these issues will return. As I explained back in November in a NY Times oped:
The worst appears yet to come....KEEP READING
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