On Monday, the U.S. Supreme Court refused to hear Pennsylvania Republicans’ months-long dispute over an extended deadline for receiving mail-in ballots, saying it was moot. However, Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch objected in a pair of dissents, saying the case raised concerns that should be decided before the next election, including whether state courts can override legislators in setting election rules. There is no suggestion that Justice Barrett recused herself in consideration of the merits of these cases. Justice Thomas wrote:

“These cases provide us with an ideal opportunity to address just what authority non-legislative officials have to set election rules and to do so well before the next election cycle. The refusal to do so is inexplicable.”

The Supreme Court majority said the Republican Party of Pennsylvania’s case against the state over the Supreme Court of Pennsylvania’s three-day extension to the deadline for ballots mailed on Election Day to arrive and be counted was moot because the 2020 election was over. They went on to say there were not enough ballots that arrived within that window—which had been set aside and not included in official results, per an earlier order from Justice Alito—to overthrow President Joe Biden’s win in Pennsylvania. Justice Thomas wrote, “That decision to rewrite the rules seems to have affected too few ballots to change the outcome of any federal election. But that may not be the case in the future.”

The ruling included an appeal of U.S. Rep. Mike Kelly’s (R-PA) challenge to mail-in voting in Pennsylvania. Kelly, an associate of former President Donald Trump, claimed the 2019 state law that expanded mail-in voting was unconstitutional. Kelly, a lead plaintiff in the case, started his legal battle against the presidential election results within weeks after Trump lost the election to Democrat Joe Biden. He claimed that Act 77, the 2019 state law that authorized universal, no-excuses mail-in voting, was unconstitutional because of a lack of a constitutional amendment. Act 77 passed the GOP-controlled General Assembly with bipartisan support. 

Kelly denounced the Supreme Court’s decision, saying in a statement:

“It is astounding that our nation’s highest court was unwilling to hear arguments in a case that called on the Court to require states to follow their own constitutions in the conduct of federal elections. Act 77 expressly violates the Pennsylvania Constitution and the only court to consider the merits acknowledged the strength of our argument and said we were likely to succeed. I call on the governor and the General Assembly to do the right thing by repealing the no-excuse mail-in voting system, starting the constitutional amendment process, and letting Pennsylvania voters decide the issue.”

In addition to Kelly’s appeal, the Supreme Court also rejected two other Republican challenges to voting in Pennsylvania in 2020. Kelly and the other Republican plaintiffs initially filed their lawsuits hoping to change the outcome of the presidential race. But, with those votes certified and Biden sworn in, the Republican plaintiffs, including Kelly, focused on changing future elections procedures.

The dissenting justices said there was still a possibility the circumstances of this case could reoccur in the 2022 midterms if the pandemic were still an issue or if parties sought to have the courts “change the rules” in their favor before a future election. Justice Alito wrote, “Indeed, it would be surprising if parties who are unhappy with the legislature’s rules do not invoke this decision and ask the state courts to substitute rules that they find more advantageous.” 

Justice Thomas said the close deadlines in the lead-up to the next election, or in the time between when ballots are cast and when they’re officially counted, made it more suitable to consider the argument of the state justices’ power before it comes up again in a future election. He wrote:

“Postelection litigation sometimes forces courts to make policy decisions that they have no business making. For example, when an official has improperly changed the rules, but voters have already relied on that change, courts must choose between potentially disenfranchising a subset of voters and enforcing the election provisions—such as receipt deadlines—that the legislature believes are necessary for election integrity. Because the judicial system is not well suited to address these kinds of questions in the short time period available immediately after an election, we ought to use available cases outside that truncated context to address these admittedly important questions.”

Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch would have heard the cases, but they were one vote shy of the four votes required for the Supreme Court to accept an appeal.