… post election 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. That occurred last year. After a court wrongly altered South Carolina's witness requirement for absentee ballots, this Court largely reinstated the original rule, but declined to apply it to ballots already cast.
The shortcomings of the current system of post-election judicial review were summarised by Justice Thomas:
In short, the postelection system of judicial review is at most suitable for garden-variety disputes. It generally cannot restore the state of affairs before an election. And it is often incapable of testing allegations of systemic maladministration, voter suppression, or fraud that go to the heart of public confidence in election results. That is obviously problematic for allegations backed by substantial evidence. But the same is true where allegations are incorrect… An incorrect allegation, left to fester without a robust mechanism to test and disprove it, "drives honest citizens out of the democratic process and breeds distrust of our government. [Purcell, 549 U. S., at 4]
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Justice Thomas was left to lament:
The issue presented is capable of repetition, yet evades review
Until reviewed – the declared results of the 2020 elections will remain a burning issue.
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