POLITICS
27/10/2020 4:22 PM AEDT

Brett Kavanaugh Just Endorsed A Radical Legal Theory That Could Cause Election Chaos

The Trump appointee affirms Trump’s suspicions about late-counted ballots and lays out his desire to block state courts from expanding voting rights.

The five conservatives on the Supreme Court affirmed an appeals court ruling overturning a decision that would have extended Wisconsin’s mail-in ballot receipt deadline by six days. Absentee ballots in Wisconsin now must be received by the close of polls on Election Day.

This 5-3 ruling comes as part of a string of decisions by the conservatives on the court blocking lower court rulings that would have made it easier to vote during the coronavirus pandemic. But hidden within the main concurrence written by Justice Brett Kavanaugh are two threats much greater than overturning six extra days for ballots to arrive by mail: He explicitly endorsed legal theories that could help President Donald Trump stop the counting of mailed ballots after Election Day or, worse, override results with the help of Republican state legislatures. 

First, Kavanaugh, who was appointed by Trump, affirmed the sentiment expressed by the president that it is somehow necessary for the election to be decided on election night and that suspicion should be cast upon valid ballots counted after November 3 in states that allow election officials to do so.

“For important reasons, most States, including Wisconsin, require absentee ballots to be received by election day, not just mailed by election day,” Kavanaugh writes. “Those States want to avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election. And those States also want to be able to definitively announce the results of the election on election night, or as soon as possible thereafter. Moreover, particularly in a Presidential election, counting all the votes quickly can help the State promptly resolve any disputes, address any need for recounts, and begin the process of canvassing and certifying the election results in an expeditious manner.”

These are highly controversial statements, as someone like Kavanaugh, who worked as a lawyer on the Bush v. Gore case that decided the 2000 presidential election for George W. Bush, should know. The 2004 election that followed, reelecting Bush, was not officially decided until the day after the election. Late-counted ballots, whether they be absentee or provisional ballots, decided the 2018 Arizona Senate election. These were all valid ballots. But Trump, in his quest to undermine faith in democratic elections and lay the groundwork for contesting the 2020 election results, says all ballots that are counted after Election Day are either suspicious or fraudulent. This is the sentiment Kavanaugh echoed.

In fact, minutes after Kavanaugh’s decision came down, Trump tweeted, “Big problems and discrepancies with Mail In Ballots all over the USA. Must have final total on November 3rd.” Twitter placed restrictions on this tweet for containing false information. There are no reported “Big problems or discrepancies” with absentee or mailed ballots.

It’s unclear what Kavanaugh’s affirmation of the president’s election lies means. But Trump stated after nominating Barrett that he was “counting on [the court] to look at the ballots.”

Justice Elena Kagan understood the severity of Kavanaugh’s assertion. She chided Kavanaugh in her lengthy dissent, joined by Justices Sonia Sotomayor and Stephen Breyer, for his Trumpian dismissal of counting all the votes.

Susan Walsh/ASSOCIATED PRESS
Supreme Court Justice Brett Kavanaugh issued a decision casting suspicion on late-counted ballots while affirming his support for blocking state courts from expanding voting rights.

“JUSTICE KAVANAUGH alleges that ‘suspicions of impropriety’ will result if ‘absentee ballots flow in after election day and potentially flip the results of an election.’ But there are no results to ‘flip’ until all valid votes are counted,” Kagan wrote. “And nothing could be more ‘suspicio[us]’ or ‘improp[er]’ than refusing to tally votes once the clock strikes 12 on election night. To suggest otherwise, especially in these fractious times, is to disserve the electoral process.”

Kavanaugh’s nightmarish concurrence does not end there. While the Wisconsin decision solely related to a federal court changing state election laws, Kavanaugh decided to append a lengthy footnote to his decision revealing his support for a radical doctrine that would prevent state courts from interpreting their own state constitutions to expand voting rights within their own state borders.

This doctrine was initially rejected by the Supreme Court in Bush v. Gore and other related decisions. Then-Chief Justice William Rehnquist wrote a concurrence to Bush v. Gore, joined by Justices Antonin Scalia and Clarence Thomas, that argued that only state legislatures are able to interpret and change state election laws and not state courts. Kavanaugh affirmatively cited Rehnquist’s 2000 concurrence in his ruling Monday.

“[U]nder the US Constitution, the state courts do not have a blank check to rewrite state election laws for federal elections,” Kavanaugh wrote, adding that a state court “may not depart from the state election code enacted by the legislature.”

In a separate concurrence, Justice Neil Gorsuch, another Trump appointee, also affirmed his support for this doctrine: “The Constitution provides that state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules.”

This is exactly the argument Pennsylvania Republicans made in a challenge to a Pennsylvania Supreme Court decision extending the state’s absentee ballot receipt deadline that was rejected on October 20. The court chose not to stay the state court’s decision in a 4-4 tie. That state court decision appears to have been saved by Chief Justice John Roberts, the only conservative who still thinks state courts should be able to rule on state election laws.

Pennsylvania Republicans are currently petitioning the Supreme Court to rehear their challenge to their state court’s ruling. Kavanaugh and Gorsuch have now openly stated their support for the Pennsylvania Republicans’ argument. Thomas’s support was already known as he joined Rehnquist’s 2000 concurrence. Justice Samuel Alito has not made his thoughts known on this, but he did join the other three in their vote to stay the Pennsylvania Supreme Court’s decision the first time. 

The only thing standing in their way right now is Chief Justice John Roberts, who sided with the three liberals to create the 4-4 tie. Roberts also revealed his hand here in Monday’s Wisconsin decision to show that he does not agree with Rehnquist’s Bush v. Gore concurrence and thinks state courts should be allowed to interpret their own state’s election laws.

“While the Pennsylvania applications implicated the authority of state courts to apply their own constitutions to election regulations, this case involves federal intrusion on state lawmaking processes,” Roberts wrote. “Different bodies of law and different precedents govern these two situations and require, in these particular circumstances, that we allow the modification of election rules in Pennsylvania but not Wisconsin.”

But now there’s Amy Coney Barrett. Barrett’s Senate confirmation on Monday night means there may now be five conservative justices to take up the case. Roberts’ disagreement will no longer matter. It is a preview of a court where any deviation from a conservative outcome requires two conservative justices to switch sides.

A ruling on such a case could greatly complicate the election in Pennsylvania. The court could potentially toss the Pennsylvania Supreme Court’s ruling quickly. This would cause increased voter confusion so close to the election — but worse, the court could theoretically make this determination after the election if Trump challenges the results because he does not want “the ballots” to be counted.

Trump and state Republicans have reportedly discussed a nightmare scenario whereby “the chaos and suspicions of impropriety” that Kavanaugh says cloud late-counted ballots will be used to justify the Republican-controlled legislature invalidating the popular vote entirely and handing the state’s electoral votes to Trump.

Such a decision would plummet the nation into a crisis far greater than Bush v. Gore did. It seems fitting for this ominous case to be the first test of a new six-vote conservative court majority.