Citizens United - Super PACs - DARK Money (A Primer)

 

Citizens United Explained

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The 2010 Supreme Court decision further tilted political influence toward wealthy donors and corporations.

• Tim Lau

 

PUBLISHED: December 12, 2019

BCJ/Getty/Phil Roeder

• 

  Reform Money in Politics

  • Influence of Big Money
  • Campaign Finance in the Courts

January 21, 2020 will mark a decade since the Supreme Court’s ruling in Citizens United v. Federal Election Commission, a controversial decision that reversed century-old campaign finance restrictions and enabled corporations and other outside groups to spend unlimited funds on elections.

While wealthy donors, corporations, and special interest groups have long had an outsized influence in elections, that sway has dramatically expanded since the Citizens United decision, with negative repercussions for American democracy and the fight against political corruption.

What was Citizens United about?

A conservative nonprofit group called Citizens United challenged campaign finance rules after the FEC stopped it from promoting and airing a film criticizing presidential candidate Hillary Clinton too close to the presidential primaries.

A 5–4 majority of the Supreme Court sided with Citizens United, ruling that corporations and other outside groups can spend unlimited money on elections.

What was the rationale for the ruling?

In the court’s opinion, Justice Anthony Kennedy wrote that limiting “independent political spending” from corporations and other groups violates the First Amendment right to free speech. The justices who voted with the majority assumed that independent spending cannot be corrupt and that the spending would be transparent, but both assumptions have proven to be incorrect.

With its decision, the Supreme Court overturned election spending restrictions that date back more than 100 years. Previously, the court had upheld certain spending restrictions, arguing that the government had a role in preventing corruption. But in Citizens United, a bare majority of the justices held that “independent political spending” did not present a substantive threat of corruption, provided it was not coordinated with a candidate’s campaign. 

As a result, corporations can now spend unlimited funds on campaign advertising if they are not formally “coordinating” with a candidate or political party. 

How has Citizens United changed elections in the United States?

The ruling has ushered in massive increases in political spending from outside groups, dramatically expanding the already outsized political influence of wealthy donors, corporations, and special interest groups.

In the immediate aftermath of the Citizens United decision, analysts focused much of their attention on how the Supreme Court designated corporate spending on elections as free speech. But perhaps the most significant outcomes of Citizens United have been the creation of super PACs, which empower the wealthiest donors, and the expansion of dark money through shadowy nonprofits that don’t disclose their donors.

A Brennan Center report by Daniel I. Weiner pointed out that a very small group of Americans now wield “more power than at any time since Watergate, while many of the rest seem to be disengaging from politics.“

“This is perhaps the most troubling result of Citizens United: in a time of historic wealth inequality,” wrote Weiner, “the decision has helped reinforce the growing sense that our democracy primarily serves the interests of the wealthy few, and that democratic participation for the vast majority of citizens is of relatively little value.”

An election system that is skewed heavily toward wealthy donors also sustains racial bias and reinforces the racial wealth gap. Citizens United also unleashed political spending from special interest groups.

What are PACs and super PACs?

Political action committees, or “PACs,” are organizations that raise and spend money for campaigns that support or oppose political candidates, legislation, or ballot initiatives. Traditional PACs are permitted to donate directly to a candidate’s official campaign, but they are also subject to contribution limits, both in terms of what they can receive from individuals and what they can give to candidates. For example, PACs are only permitted to contribute up to $5,000 per year to a candidate per election. 

In the 2010 case Speechnow.org v. FEC, however, a federal appeals court ruled — applying logic from Citizens United — that outside groups could accept unlimited contributions from both individual donors and corporations as long as they don’t give directly to candidates. Labeled “super PACs,” these outside groups were still permitted to spend money on independently produced ads and on other communications that promote or attack specific candidates.

In other words, super PACs are not bound by spending limits on what they can collect or spend. Additionally, super PACs are required to disclose their donors, but those donors can include dark money groups, which make the original source of the donations unclear. And while super PACs are technically prohibited from coordinating directly with candidates, weak coordination rules have often proven ineffective.

Super PAC money started influencing elections almost immediately after Citizens United. From 2010 to 2018, super PACs spent approximately $2.9 billion on federal elections. Notably, the bulk of that money comes from just a few wealthy individual donors. In the 2018 election cycle, for example, the top 100 donors to super PACs contributed nearly 78 percent of all super PAC spending.

What is dark money?

Dark money is election-related spending where the source is secret. Citizens United contributed to a major jump in this type of spending, which often comes from nonprofits that are not required to disclose their donors.

In its decision, the Supreme Court reasoned that unlimited spending by wealthy donors and corporations would not distort the political process, because the public would be able to see who was paying for ads and “give proper weight to different speakers and messages.” But in reality, the voters often cannot know who is actually behind campaign spending.

That’s because leading up to Citizens United, transparency in U.S. elections had started to erode, thanks to a disclosure loophole opened by the Supreme Court’s 2007 ruling in FEC v. Wisconsin Right to Life, along with inaction by the IRS and controversial rulemaking by the FEC.

Citizens United allowed big political spenders to exploit the growing lack of transparency in political spending. This has contributed to a surge in secret spending from outside groups in federal elections. Dark money expenditures increased from less than $5 million in 2006 to more than $300 million in the 2012 election cycle and more than $174 million in the 2014 midterms. In the top 10 most competitive 2014 Senate races, more than 71 percent of the outside spending on the winning candidates was dark money. These numbers actually underestimate the impact of dark money on recent elections, because they do not include super PAC spending that may have originated with dark money sources, or spending that happens outside the “electioneering communications window” 30 days before a primary or 60 days before a general election.

Finally, because they can hide the identities of their donors, dark money groups also provide a way for foreign countries to hide their activity from U.S. voters and law enforcement agencies. This increases the vulnerability of U.S. elections to international interference.

How can reformers address the consequences of Citizens United?

In the short term, a Supreme Court reversal or constitutional amendment to undo Citizens United is extremely unlikely, and regardless, it would leave many of the problems of big money in politics unsolved. But even without a full reversal of Citizens United in the near future, there are policy solutions to help combat the dominance of big money in politics and the lack of transparency in the U.S. campaign finance system.

First, publicly funded elections would help counter the influence of the extremely wealthy by empowering small donors. Specifically, a system that matches small-dollar donations with public funds would expand the role of small donors and help candidates rely less on big checks and special interests. In recent years, public financing has gained support across the United States. As of 2018, 24 municipalities and 14 states have enacted some form of public financing, and at least 124 winning congressional candidates voiced support for public financing during the 2018 midterm election cycle.

Lawmakers on the national, state, and local level can also push to increase transparency in election spending. For example, the DISCLOSE Act, which has been introduced several times in Congress, would strengthen disclosure and disclaimer requirements, enabling voters to know who is trying to influence their votes. Congress could also pass stricter rules to prevent super PACs and other outside groups from coordinating directly with campaigns and political parties. 

Fixing the U.S. elections system will also require fixing the FEC.

Long dysfunctional thanks to partisan gridlock, the FEC is out of touch with today’s election landscape and has failed to update campaign finance safeguards to reflect current challenges. For example, FEC rules do not even include the term “super PAC,” and it has declined to find violations or even open an investigation in high-profile allegations of coordination. The agency’s failure to enforce federal disclosure laws helped allow dark money to pour into U.S. federal elections since 2010.

In an April 2019 report, the Brennan Center outlined a number of structural reforms that Congress can pursue to help tackle dysfunction in the FEC. 

Finally, addressing the impacts of Citizens United requires building a movement in favor of campaign finance reform. There’s public support for such reforms. In recent polls, 94 percent of Americans blamed wealthy political donors for political dysfunction, and 77 percent of registered voters said that “reducing the influence of special interests and corruption in Washington” was either the “single most” or a “very important” factor in deciding their vote for Congress.

Citizens United was a blow to democracy — but it doesn’t have to be the final word. Politicians can listen to what the vast majority of the public wants, even if big donors don’t like it.

Biden blocked the first Black woman from the Supreme Court.

 PAST PERFORMANCE IS NO GUARANTEE OF FUTURE TRUNALIMUNUMAPRZURE: 

Biden blocked the first Black woman from the Supreme Court. 

“Today, Biden calls the filibuster a 

‘relic of the Jim Crow era.’

 But he threatened to use that relic as a tool to keep a Black woman who actually lived under Jim Crow off the highest court in the land. The irony is that now he wants to get rid of the filibuster, and claim credit for putting the first Black woman on the court. There were many conservatives on Bush’s shortlist whose legal philosophy Biden opposed. But Biden only promised to filibuster the one Black woman. Why? Perhaps a clue lies in another confirmation fight that Biden helped wage. In 2001, Democrats blocked the nomination of Miguel Estrada to serve on the U.S. Court of Appeals for the D.C. Circuit. According to internal strategy memos obtained by the Wall Street Journal, they targeted Estrada at the request of liberal interest groups who said Estrada was

 ‘especially dangerous’ 

because ‘he is Latino, and the White House seems to be grooming him for a Supreme Court appointment.’ They did not want Republicans to put the first Hispanic on the Supreme Court. So, Biden and his fellow Democrats killed Estrada’s nomination —

 the first appeals court nominee in history to be successfully filibustered. 

It paid off when President Barack Obama nominated Sonia Sotomayor as the first Hispanic justice. Democrats’ commitment to diversity is a ruse. Biden was willing to destroy the careers of an accomplished Latino lawyer and a respected Black female judge, and stop Republicans from putting either on the Supreme Court. For Democrats, it’s all about identity politics.”

 

11Posted at 8:22 am by Ed Driscoll   

K

In 2003, Joe Biden Filibustered and Voted Against Nomination of a Black Woman to the Federal Bench

BY RICK MORAN JAN 27, 2022 2:27 PM ET I

n 2003, then-President George W. Bush nominated Janice Rogers Brown, an associate justice on the California Supreme Court to serve as a Judge on the United States Court of Appeals for the District of Columbia Circuit. She was the first black woman nominated for the federal bench.

 But Rogers Brown had a problem; she was a libertarian-conservative and refused to play ball with civil rights organizations.

One of her major decisions was a dissent in the case of forcing cigarette manufacturers to put warning labels on packs and cartons. A truly libertarian decision. She also attacked the New Deal, which gave us Social Security and other programs as “the triumph of our socialist revolution.” You can imagine the anger of her liberal colleagues over that one.

But Joe Biden, champion of civil rights and the president who has gloried in naming the first minorities to several positions in his administration, filibustered against her nomination and voted twice against her. When Biden had the chance to vote for a black woman, he declined.

Breitbart:

On Wednesday’s broadcast of the Fox News Channel’s “Ingraham Angle,” host Laura Ingraham contrasted President Joe Biden’s vow to nominate a black woman to the Supreme Court to replace outgoing Justice Stephen Breyer with then-Sen. Biden’s opposition to and multiple filibusters of the nomination of Janice Rogers Brown to the federal bench by then-President George W. Bush in 2003 and 2005 and remarked that “race and gender, they only count if you’re thought to be a committed judicial activist, judicial leftist.”

DOJ CHARGES OATH KEEPERS WITH ‘SEDITIOUS CONSPIRACY

 DOJ CHARGES OATH KEEPERS WITH ‘SEDITIOUS CONSPIRACY:’

 Interestingly, the DOJ announcement describes the charges with reference to the statute’s inclusion of efforts to oppose or delay execution of a law, not its reference “to conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them …” But watch, the MSM and the Schumer/Pelosi crowd will frame it rhetorically as if the defendants are being charged with conspiracy to overthrow the government.

79Posted at 2:29 pm by Mark Tapscott   

Attack on SCOTUS - Damn the Left

 THE SUPREME COURT WAS “ILLEGITIMATE” WHEN IT WAS A BARRIER TO LEFTY GOALS, SACRED WHEN IT WAS ADVANCING THEM, AND WILL RETURN TO “ILLEGITIMATE” STATUS WHEN IT STARTS THWARTING THEM: 

A Preemptive Attack on the Supreme Court.

AMERICA’S progressives have spent most of the past year wailing about people who undermine faith in democratic institutions. “Misinformation” that casts doubt on the election of President Biden, they tell us, must be combated at every level — by “calling it out” where possible and censoring it where necessary.

Unfortunately for their case, these same people call into question the legitimacy of virtually every election they lose: George W. Bush “stole” the 2000 election; the Koch brothers’ wicked weaponization of Citizens United gave us the Tea Party wave of 2010; and of course the 2016 election was handed to Donald Trump by Vladimir Putin. And all the while, they have pushed relentlessly to loosen voter-integrity laws, as if making election procedures a partisan issue can’t reasonably lead anyone to question election results.

Simply put, throwing a temper tantrum every time you lose an election has become a bipartisan habit, one that Democrats are at least as prone to as Republicans. Witness the preemptive strikes on the legitimacy of today’s Supreme Court.

The progressive narrative here is based on an essential piece of misinformation, albeit one whose falsity is lost on most proponents, including more than a few law professors. That is the contention that Republicans in the Senate illegitimately blocked Barack Obama’s nominee to fill a vacant seat during the 2016 election but then turned around and confirmed Donald Trump’s nominee four years later. Thus, through what Harry Reid used to call an “untoward maneuver” on Mitch McConnell’s part, the Republicans erected an illegitimate supermajority of conservative justices.

Lawrence Douglas, who holds the James Grosfeld chair in Law, Jurisprudence, and Social Thought at Amherst College, recently argued in The Guardian that, to protect the Supreme Court’s legitimacy, one of the conservative justices should summarily step down so the Democrats can fill the seat. Douglas asserts:

And just as we might hope that a person who, through no fault of their own, has come into possession of a good not rightfully theirs, would return that object, Coney Barrett and Gorsuch could do the right thing for the nation by agreeing that one of them should step down.

Douglas argues that one of the two justices’ seats is “not rightfully theirs” because, “if presidents do not get to replace justices in an election year, then Coney Barrett’s confirmation is illegitimate; if presidents do, then Gorsuch’s is illegitimate. You can’t have it both ways.”

In fact, both confirmations complied with constitutional requirements.

The Constitution provides that Supreme Court seats are to be filled by the president, with the advice and consent of the Senate. This assignment of roles can get confusing, but it’s not rocket science. Critics have argued that Obama’s nomination of Merrick Garland was the same as Trump’s nomination of Amy Coney Barrett: Both occurred in an election year, and Mitch McConnell should have brought both of them up for a vote.

But the two situations were not analogous, for in both situations the Republicans controlled the Senate, and in Obama’s case, that required negotiating with the opposition party, not exactly his forte. In reality, Obama could easily have filled Antonin Scalia’s seat: All he had to do was nominate someone conservative enough that Republicans would be happy to confirm the nominee. But, with the 2016 election looming, Obama naturally saw a chance to flip the seat long held by Scalia and establish a solid progressive majority on the Court. He decided to nominate a solid progressive who was mainstream enough that Republicans might be pressured into confirming him; and if they didn’t, he was betting that Democrats would win both White House and Senate and would soon be able to fill the seat with anyone they liked.

The Constitution provides that Supreme Court seats are to be filled by the president, with the advice and consent of the Senate. This assignment of roles can get confusing, but it’s not rocket science. Critics have argued that Obama’s nomination of Merrick Garland was the same as Trump’s nomination of Amy Coney Barrett: Both occurred in an election year, and Mitch McConnell should have brought both of them up for a vote.

But the two situations were not analogous, for in both situations the Republicans controlled the Senate, and in Obama’s case, that required negotiating with the opposition party, not exactly his forte. In reality, Obama could easily have filled Antonin Scalia’s seat: All he had to do was nominate someone conservative enough that Republicans would be happy to confirm the nominee. But, with the 2016 election looming, Obama naturally saw a chance to flip the seat long held by Scalia and establish a solid progressive majority on the Court. He decided to nominate a solid progressive who was mainstream enough that Republicans might be pressured into confirming him; and if they didn’t, he was betting that Democrats would win both White House and Senate and would soon be able to fill the seat with anyone they liked.

So Obama decided to raise the stakes and put the onus on Mitch McConnell. Unfortunately for him, playing political poker against Mitch McConnell rarely turns out well. McConnell raised the bet and announced that no vote would be held on Garland’s nomination, thereby making the crucial seat a key issue in the 2016 election. McConnell has been endlessly pilloried for that move, but all he did was make precisely the same calculation that Obama had made, with just as much right and reason, except that he was arguably cornered into it by Obama’s high-stakes gamble.

It was a considered risk on Obama’s part and would have paid off hugely for progressives — if Democrats hadn’t lost the 2016 election. Instead of paving the way for someone even more progressive than Merrick Garland, the 2016 election paved the way for someone even more conservative than Scalia, if that was possible: Trump quickly nominated Neil Gorsuch, and the Senate quickly confirmed him. Brett Kavanaugh and Coney Barrett followed.

Douglas’s implied argument of “constitutional but illegitimate” recalls Dan Rather’s “fake but accurate” defense of misinformation that he peddled during the 2004 election. But the tactic is even more unavailing here, for Douglas’s position is based not on any democratic principle, but rather on his reading of a principle that he vehemently disputes, namely the “McConnell rule.”

McConnell’s narrow justification for not holding a vote over Garland’s nomination in 2016 was basically this: When nominations occur during an election year, and White House and Senate are controlled by different parties, either the president or the Senate may elect to keep the seat vacant until after the election.

As noted previously, the failure to fill Scalia’s vacant seat during 2016 resulted from a combination of moves in which Obama had first-mover advantage. In fact, if the Democrats had won both White House and Senate in 2016, McConnell’s best move in the lame-duck session would have been to push for the immediate confirmation of Garland, to limit the damage. Obama’s best move would then have been to withdraw the nomination so Hillary Clinton could nominate someone even more progressive. These “manipulations” of the rules are not only not illegitimate — they are precisely the interplay of elected bodies that the Framers had in mind when they chose to divide the power to appoint federal judges between president and Senate.

Like the phrase “our democracy,” which just means “untrammeled Democratic Party power,” Democrats’ talk of legitimacy and the Constitution is just about . . . untrammeled Democratic Party power.

310Posted at 7:00 pm by Glenn Reynolds   

Y

Biden's Fascist Speech 

The F-Word Biden’s Play for the Courts

Biden’s fascist COVID order is not a serious effort to stem the tide of the pandemic.

By Ken Masugi

September 16, 2021

In his remarks justifying his vaccine mandate, Joe Biden gave the most fascistic speech ever delivered by a president of the United States. It demanded unconstitutional and illegal powers and replaced the rule of law with partisanship, timed solely to distract attention from his Afghanistan fiasco. 

 Who is Running This Country , Rally?

Landlords Ask 5th Circuit Court to Stay CDC Eviction Moratorium

By Matthew Vadum

 

August 22, 2021 Updated: August 22, 2021

 

biggersmaller 

Print

Landlords in Louisiana are asking a federal appeals court to block the Centers for Disease Control and Prevention’s legally dubious nationwide eviction moratorium while that court considers an appeal from the landlords.

The Centers for Disease Control and Prevention (CDC) extended the moratorium earlier this month after President Joe Biden acknowledged doing so would be illegal and after Congress opted not to extend it.

CDC Director Dr. Rochelle Walensky signed an order on Aug. 3 determining that allowing tenants to be evicted for failing to make rent or housing payments could harm public health control measures aimed at slowing the spread of the CCP virus, also known as SARS-CoV-2, which causes the disease COVID-19. The order will expire on Oct. 3.

“The emergence of the delta variant has led to a rapid acceleration of community transmission in the United States, putting more Americans at increased risk, especially if they are unvaccinated,” Walensky said in a statement at the time.

Update on the Left and it's affect on Labor

 ABOUT THAT ALABAMA AMAZON VOTE: And 

speaking of CRC, 

the mainstream media hasn’t given it much coverage, but the anti-unionization vote last week by workers at an Alabama Amazon facility is hugely important. This is especially so, according to CRC’s Michael Watson, given the Democrats’ PRO Act proposal now before the Senate.

 Posted at 7:55 am by Mark Tapscott   

A FINDING THAT SHOULD SHOCK NO ONE: ‘Anti-Racist’ Messaging Makes Democrat Policies Less Popular.

1Posted at 7:45 am by Ed Driscoll   

WHO IS HANS WYSS? If the name doesn’t instantly ring a bell like that of George Soros, don’t feel bad because Hans Wyss, a Swiss billionaire with a checkered record of involvement in the medical research and liberal political donor fields, is not well-known. Thanks to 

Capital Research Center’s Hayden Ludwig, 

however, that should be about to change.

0Posted at 7:42 am by Mark Tapscott   

THEY’LL BE MADE TO KEEP HOLDING VOTES UNTIL THE DESIRED RESULT IS ACHIEVED: 

Biden Labor Board Invalidates Workers’ Vote to Reject Union. 

“The National Labor Relations Board overruled hundreds of Delaware poultry workers who had voted to reject union leadership. The agency said in a 3-1 ruling released Wednesday that a provision prohibiting workers from leaving a union for a set time period after a contract is signed allowed the board to ignore the workers’ March 2020 vote. The decision reversed a regional NLRB director who had initially ruled in the workers’ favor.”

10Posted at 7:32 am by Stephen Green   

Meet Kimberly Gardner, the Rogue Prosecutor

 Soros' Prosecutor in St. Louis

Meet Kimberly Gardner, the Rogue Prosecutor Whose Policies Are Wreaking Havoc in St. Louis

SCOTUS Rules Against California's Anti-Religion Laws

 SCOTUS Says No to Cal vs Church

Biden Justice Department Sides Against Free Speech

 Biden's DOJ Against Free Speech

SUPREME COURT

Biden Justice Department Sides Against Free Speech Advocates in Big First Amendment Case

The federal government weighs in on Mahanoy Area School District v. B.L..

SCOTUS Denial of "We The People"

 SCOTUS Drops Scantuary City Cases By Biden's (DOJ) Request

This is Treason o Unconstitutional o  Anti --American o Communism

 

Clarence Thomas Blasts the Supreme Court for Ducking the Pennsylvania Election Challenge

By DAN MCLAUGHLIN

February 22, 2021 12:35

Few things are worse for public confidence in elections than having the rules changed in the middle of the game (or after it). An epidemic of late-in-the-day changes to the rules was particularly corrosive in 2020. Courts are ill-equipped to referee those changes when partisan tempers are running hot. The Supreme Court just threw away its last opportunity to remedy that problem before the next election cycle.

The Court this morning turned away the remaining challenges to the 2020 election in Pennsylvania, Wisconsin, Georgia, Arizona, and Michigan. Some of these challenges were legally meritless, and none of them offered any legitimate grounds to change the outcome of the presidential election, but the Pennsylvania case in particular raised a serious, recurring issue of election law: whether state courts or state executive officials can use the general, open-ended terms of state constitutional provisions to throw out specific rules passed by state legislatures governing federal elections. Articles I and II of the Constitution reserve to state legislatures the power to set rules for federal elections.

That’s exactly what happened in Pennsylvania: The Pennsylvania supreme court used the Pennsylvania Constitution’s general guarantees of “free and equal” elections and “free exercise of the right of suffrage” as an excuse to invalidate the state legislature’s explicit deadline for mail-in ballots to be received by 8 p.m. on Election Day — the same time the in-person polls close. That deadline was enacted in 2019 and left untouched in revisions to the mail-in ballot rules during the pandemic in 2020. The Court should have heard the case before Election Day, in order t0 ensure that the rules of the road were set in advance. Refusing to hear the case either before the election or after the election guarantees that the issue remains unsettled for the next election.

Justice Clarence Thomas, joined by Justices Samuel Alito and Neil Gorsuch, wrote a dissent blasting the Court for repeatedly ducking this issue (Alito added his own dissent). Normally, federal courts will not hear cases once they are moot, and that would normally be the situation here: Justice Thomas noted that there was no evidence in the record that the Pennsylvania deadline extension changed the result of any federal election. Normally, federal courts will also not hear cases when there is no injury yet or when they are not ripe — that is, nobody has been harmed yet. That was the argument raised by the dissent in a challenge to Minnesota changing its mail-in ballot deadline: We shouldn’t even require ballots to be segregated until we see if it would change the outcome. But that can risk creating a Catch-22: a case is always too early or too late. So, there is an exception to the mootness rule to deal specifically with situations where the ripeness and mootness rules together would make it impossible ever to hear a properly brought case: for an issue that is “capable of repetition, yet evades review.” As Thomas noted, the Court has invoked this rule in election cases before, and should have done so here to avoid repeating the problem:

[The Pennsylvania Supreme Court’s] 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. These cases provide us with an ideal opportunity to address just what authority nonlegislative officials have to set election rules, and to do so well before the next election cycle. The refusal to do so is inexplicable. . . . An election system lacks clear rules when, as here, different officials dispute who has authority to set or change those rules. This kind of dispute brews confusion because voters may not know which rules to follow. Even worse, with more than one system of rules in place, competing candidates might each declare victory under different sets of rules.

That does sound familiar, doesn’t it? Thomas detailed why contests involving mail-in ballots, which were once treated with skepticism even by the New York Times and election-law experts, were more complicated to litigate quickly, and thus presented even greater mootness problems: “Five to six weeks for judicial testing is difficult enough for straightforward cases. For factually complex cases, compressing discovery, testimony, and appeals into this timeline is virtually impossible.” He specifically noted the compressed timeline imposed in presidential elections by the Electoral Count Act of 1887. And Justice Thomas warned of the particular problems the Court faces in trying to handle politically charged cases in the middle of voting, pointing to a South Carolina case where the Court ended up ordering one rule for ballots cast after its decision, and another for ballots already cast. The Purcell rule, under which federal courts try to avoid changing rules late in the game, reflects some wisdom, but it is counterproductive if the courts will not clarify who has power to set the rules ahead of time.

As Thomas noted, while the Supreme Court had ordered that late-arriving ballots be segregated in order to allow post-election challenges, a different fight in a state election illustrated what can go wrong:

We may not be so lucky in the future. Indeed, a separate decision by the Pennsylvania Supreme Court may have already altered an election result. A different petition argues that after election day the Pennsylvania Supreme Court nullified the legislative requirement that voters write the date on mail-in ballots. . . . According to public reports, one candidate for a state senate seat claimed victory under what she contended was the legislative rule that dates must be included on the ballots. A federal court noted that this candidate would win by 93 votes under that rule. . . . A second candidate claimed victory under the contrary rule announced by the Pennsylvania Supreme Court. He was seated. That is not a prescription for confidence. Changing the rules in the middle of the game is bad enough. Such rule changes by officials who may lack authority to do so is even worse.

Justice Kavanaugh, who joined the dissenters in the fall, did not join them today, presumably concluding that the Court should avoid taking a case that was moot. But the Court should have decided this case now, if not earlier. This issue will not go away, and it may return next time surrounded by the same sorts of popular rage that led to the Capitol riot. This was the time for cooler heads to say what the law is.