Justice Kavanaugh seems to argue no votes should be counted after Election Day. He may get his wish in key states.

 Justice Kavanaugh seems to argue no votes should be counted after Election Day. He may get his wish in key states.

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The Supreme Court sided with Republicans in Wisconsin on Monday, ruling 5-3 along ideological lines that Wisconsin can count only those absentee ballots that arrive by Election Day — even if they were mailed days earlier. Since first-class mail has been taking an average of 10 days to be delivered in the state, Wisconsin’s Democratic Party urged mail-in Democrats to hand-deliver their absentee ballots or vote in person.

The practical issue involves what happens with Wisconsin’s 700,000 outstanding absentee ballots. “But the deeper issue is about the extent to which a ballot should be considered as valid,” Phillip Bump writes in The Washington Post. In a factually sloppy concurring opinion, Justice Brett Kavanaugh evidently embraced President Trump’s baseless conspiracies about voter fraud and bizarre demand that the winner be announced election night.

Many states require absentee ballots to arrive by Election Day because they “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,” Kavanaugh wrote. “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.”

Justice Elena Kagan, in her dissent, noted that “there are no results to ‘flip’ until all valid votes are counted. And nothing could be more ‘suspicio[us]’ or ‘improp[er]’ than refusing to tally votes once the clock strikes 12 on election night.”

More broadly, Kavanaugh — and Justice Neil Gorsuch — embraced late Chief Justice William Rehnquist’s concurring opinion in 2000’s Bush v. Gore, which invented a legal theory “so radical, so contrary to basic principles of democracy and federalism, that two conservative justices” rejected it, even as they agreed to hand the White House to George W. Bush in what was supposed to be a one-off decision, Mark Joseph Stern writes at Slate.


Rehnquist argued that state courts cannot interpret state election laws in federal elections, Stern writes, “a breathtaking assault on state sovereignty” that would transform the Supreme Court “into a national board of elections with veto power over each state’s election rules.” With Judge Amy Coney Barrett put on the court, the conservatives likely have five votes enact Rehnquist’s theory, throwing out ballots in Pennsylvania and North Carolina as well as Wisconsin, he added. “In other words, Barrett’s first decisions as a justice may determine the outcome of the election.”

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