Justice Brett Kavanaugh is being accused of paving the way for President Donald Trump to “steal the election” after the Supreme Court on Monday rejected an effort by Wisconsin Democrats to have mail-in absentee ballots postmarked by Election Day counted even if they arrive after the election.
In a 5-3 decision, the court ruled that absentee ballots in Wisconsin could only be counted if they were in the possession of election clerks by 8 p.m. on Nov. 3. State Democrats attempted to have the deadline for counting absentee ballots extended a full six days after Election Day, CNBC reports. They argued the extension was necessary due to the surge in mail-in voting caused by the coronavirus pandemic.
Last month, District Court Judge William Conley agreed with the Democrats’ arguments, ordering the deadline to be extended. The 7th U.S. Circuit Court of Appeals reversed Conley’s decision in October and Democrats appealed the case to the Supreme Court.
The Supreme Court ruled against the Democrats. Justice Neil Gorsuch, writing for himself and joined in part by Justice Brett Kavanaugh, said that the Constitution gives elected legislators the power to set election rules and that judges cannot overstep the separation of powers when the Legislature fails to act.
“Legislators can be held accountable by the people for the rules they write or fail to write; typically, judges cannot,” Gorsuch wrote. “Legislatures make policy and bring to bear the collective wisdom of the whole people when they do, while courts dispense the judgment of only a single person or a handful.”
In his concurring opinion, Kavanaugh said that while he understands the concerns over COVID-19, “you need deadlines to hold elections — there is just no wishing away or getting around that fundamental point. And Wisconsin’s deadline is the same as that in 30 other States and is a reasonable deadline given all the circumstances.”
“Moving a deadline would not prevent ballots from arriving after the newly minted deadline any more than moving first base would mean no more close plays,” he added.
Kavanaugh’s concurring opinion has been cited by critics on the left as evidence he wants to help Trump “steal the election” by discounting mail-in votes.
“Brett Kavanaugh Lays Out a Plan to Help Trump Steal the Election” reads one headline at Mother Jones, while “Brett Kavanaugh Signals He’s Open to Stealing the Election for Trump” is a piece by Mark Joseph Stern for Slate. These articles accuse Kavanaugh’s “frankly terrifying” opinion (Stern’s words) of echoing Trump’s rhetoric opposing mail-in voting in one passage wherein Kavanaugh defends states that have statutes similar to a Wisconsin law that disqualifies ballots received after Election Day:
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.
“It is genuinely alarming that the justice cast these aspersions on late-arriving ballots,” Stern writes.
Another area of Kavanaugh’s opinion that’s under attack is a footnote where he positively cites Chief Justice William Rehnquist’s opinion in Bush v. Gore on why federal courts should step in to review state court interpretations of state election laws that affect federal elections, such as presidential election.
“Whatever the reasons behind Kavanaugh’s performance on Monday, he has given the nation another legitimate reason to fear that this election may end with a Bush v. Gore–like disaster for American democracy, but even worse than the original,” he concludes.
A CNN report on Kavanaugh’s opinion shares a similar premise with the headline “Brett Kavanaugh foreshadows how Supreme Court could disrupt vote counting,” suggesting that Wisconsin following state election law would disrupt the election. Another article for USA Today also suggests Kavanaugh is “echoing Trump.”
President Trump has frequently criticized mail-in voting, predicting that fully counting votes could take months after the election and suggesting “mail ballots are very dangerous for this country because of cheaters. They go collect them. They are fraudulent in many cases. They have to vote. They should have voter ID, by the way.”