A Supreme Court order that backed a Wisconsin voter restriction served as a jumping off point for two President Trump-appointed justices to air a hardcore approach to election disputes. The approach they laid out could prove pivotal in the event of a contested presidential election in which Trump is asking the U.S. Supreme Court to overturn state court decisions that favor his opponent.
In an 18-page, error–filled concurring opinion, Justice Brett Kavanaugh leaned into the Supreme Court’s controversial Bush v. Gore case, while echoing Trump’s own baseless suggestions that a slow process of counting absentee ballots could be sign of fraud.
The signaling done by Kavanaugh, as well as by his fellow Trump-appointed Justice Neil Gorsuch, came with an order that preserved Wisconsin’s Election Day deadline for receiving absentee ballots. A federal judge had previously extended the deadline by six days, allowing ballots that are postmarked by Election Day but arrive after to be counted.
The court’s three liberal justices dissented from Supreme Court’s move to back the tighter deadline.
The move had the practical effect of making it more likely that thousands of voters will see their ballots rejected in the general election. During the April primary, some 80,000 ballots postmarked by Election Day arrived in the week after the primary.
But the dispute also allowed Gorsuch, Kavanaugh and Justice Elena Kagan — whose dissenting opinion was joined by the court’s two other Democratic appointees — to lay out their views on how the Supreme Court has been handling various pandemic-related election disputes over the past several months.
The volleys they traded could be seen as a proxy war over the vote of Justice Amy Coney Barrett. Barrett was confirmed by the Senate shortly after the Wisconsin order was released and she will likely be the deciding vote in multiple election disputes that are already before the Supreme Court.
In a concurrence joined by Kavanaugh, Gorsuch expressed an extreme view of courts’ role in fights over election rules. He said only state legislatures — “not federal judges, not state judges, not state governors, not other state officials” — should “bear primary responsibility for setting election rules.”
The concurrence made explicit what was hinted in a previous voting rules case out of Pennsylvania. In that case, the justices deadlocked 4-4 on a request by Republicans to reverse a state Supreme Court decision that extended the deadline for mail ballots in that state. The Republicans had argued state courts are not allowed, under the U.S. Constitution, to make adjustments to election rules.
Gorsuch’s and Kavanaugh’s concurrences in the Wisconsin case made clear that they agreed with that argument.
In the Pennsylvania dispute, Chief Justice John Roberts sided with the liberals, which allowed a state Supreme Court decision to extend that deadline by three days to stay in place.
In a concurrence to the Wisconsin order, Roberts explained why he voted in favor of the stricter deadline in Wisconsin while voting to preserve the state court-ordered extension in Pennsylvania. Roberts’ rationale was an implicit pushback to the views laid out by Gorsuch and Kavanaugh as he said situations in which state courts are interpreting election rules present “[d]ifferent bodies of law and different precedents” than when federal courts are making the changes.
Kavanaugh, writing a concurrence by himself, went even further than the Gorsuch concurrence that he had also joined. Kavanaugh emphasized that federal courts should abstain from issuing any orders that would disrupt voting laws in the weeks and months before an election.
Like Gorsuch, he stressed an extreme deference to the election laws as written by a state legislature, no matter how burdensome they are to voters when changing circumstances increase the barriers to the ballot box.
To take aim at state courts in particular, Kavanaugh cited Bush v. Gore. The citation was notable, given that at the time, the court’s majority said that the decision should not be used as guidance for future cases. Bush v. Gore has been cited frequently by the Trump campaign in its own lawsuits challenging changes to election laws that make voting easier in the pandemic.
Kavanugh quoted extensively from a concurrence from then-Chief Justice William Rehnquist that was only joined by two other conservative justices. Kavanaugh used the concurrence to argue that “the text of the Constitution requires federal courts to ensure that state courts do not rewrite state election laws.”
Kavanaugh additionally laid out a third consideration — not voiced previously in Supreme Court orders in pandemic-related election disputes — discouraging changes to election rules that could cause delays in tabulating results.
States with Election-Day ballot deadlines “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.”
Kavanaugh’s insinuation that people might think something is amiss if they don’t get their election results shortly after polls close parroted President Trump’s own false claims that if the presidential election results can’t be determined within a few hours of polls closing, it could be evidence of fraud.
In her dissent, Kagan bashed that Supreme Court conservative majority’s broader handling of pandemic-related election disputes while aiming several barbs specifically at Kavanaugh.
She said the courts should consider other factors besides the timing of an election in deciding whether to loosen voting rules. And she questioned the extreme deference the Supreme Court was giving legislatures to decide how to deal with the pandemic by noting that Wisconsin’s has not even met since April.
She dismissed Kavanaugh’s rhetoric about court orders that could somehow “flip” the results.
“[T]here 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,” she said. “To suggest otherwise, especially in these fractious times, is to disserve the electoral process.”