Constitutionally, while federal courts only have the power to hear a “case or controversy,” meaning the Supreme Court lacks jurisdiction to hear “moot” cases, here there is a well-established exception to the mootness doctrine: the capable-of-repetition-but-evading-review exception.

This exception to the mootness doctrine provides that federal courts hold authority to resolve cases where “the challenged action is in its duration too short to be fully litigated prior to cessation or expiration” and where “there is a reasonable expectation that the same complaining party will be subject to the same action again.”

Both criteria exist here, Justice Thomas wrote, as the Pennsylvania Supreme Court’s decision came a mere six weeks before the election, and the petitioners in the cases—the state Republican party and state legislators—are likely to “again confront nonlegislative officials altering election rules.”

In his separate dissent, Justice Alito also concluded that certiorari should be granted because the cases “present an important and recurring constitutional question.” His dissent, joined by Justice Gorsuch, focused mainly on the mootness question. //

Maybe the six justices who voted against certiorari believe the country will be better off without relitigating the election. The denial, however, will not heal a country that witnessed state officials and courts change the rules mid-vote—not just in Pennsylvania, but in Wisconsin and Michigan too. Then her citizens saw the Supreme Court seemingly ignore those violations of the Electors Clause when Texas sought relief in the Supreme Court.

Worse yet will be the damage done to our republic when the bending and breaking of election laws repeats in the future. For now, as Justice Thomas concluded, “by doing nothing,” the Supreme Court invites “erosion of voter confidence.” We “citizens deserve better and expect more.”