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The Errors, Misrepresentations And Weird Analogies In Kavanaugh’s WI Opinion

on September 4, 2018 in Washington, DC.
Supreme Court nominee Judge Brett Kavanaugh appears before the Senate Judiciary Committee during his Supreme Court confirmation hearing on September 4, 2018. (Photo by Drew Angerer/Getty Images)
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October 27, 2020 4:27 p.m.

Sometimes, Supreme Court justices could use an editor. In the case of a concurrence that Justice Brett Kavanaugh wrote in a Wisconsin voting dispute, Kavanaugh could have used an editor, a fact checker and someone who could explain the basics of how an election works.

Kavanaugh penned the 18-page concurrence to explain why he was voting to preserve Wisconsin’s requirement that absentee ballots be received by Election Day in order to be counted. Here’s a (non-exhaustive) list of all the errors, cherry-picking and faulty analogies the concurrence deployed:

Kavanaugh Overstated How Much SCOTUS Has Said About The Timing Concerns Of Election Cases

Kavanaugh said that the Supreme Court has “repeatedly emphasized that federal courts ordinarily should not alter state election laws in the period close to an election,” while citing seven cases (six of them arising in the pandemic) where the justices put on hold lower court decisions that changed election rules.

“The Court’s precedents recognize a basic tenet of election law,” he wrote. But in chastising the lower court, he overstated how much the Supreme Court has said about weighing timing concerns against claims that election rules violate a person’s right to vote. Only two of the seven cases he cited came with an opinion from the court’s majority that could serve as any sort of precedent.

To Argue For Deferring To State Legislatures, Kavanaugh Cited A Dispute That Wasn’t About A Policy The State Legislature Had Put In Place

In addition to his timing arguments, Kavanaugh pointed to a supposed need to let state legislatures decide how to adjust their election rules for the pandemic. But one of the Supreme Court orders he cited, “Merrill II,” wasn’t about a policy that the state legislature had passed. When that specific dispute was before the Supreme Court, the justices were only weighing whether Alabama’s Secretary of State John Merrill should be allowed to implement a ban on curbside voting. That was a prohibition he had implemented unilaterally, without any state law explicitly banning the practice.

When the Supreme Court put on hold lower courts’ order blocking Merrill’s de facto ban on curbside voting, it didn’t give any explanation why.

Kavanaugh Falsely Said That Vermont Made No Changes To Its Election Rules For The Pandemic

To reiterate his emphasis about deference to state legislatures, he brought up states  like Vermont that haven’t made any changes to their elections because of the pandemic. The problem? Vermont has made a very big change: It’s proactively sending all its voters absentee ballots.

In designing this program, as the Vermont Secretary of State’s Twitter account noted, it factored in an Election Day receipt deadline by sending voters their postage paid ballots more than a month in advance of November 3. Wisconsin, meanwhile, lets voters request mail-in ballots through Oct. 29, creating a much greater risk of voters not receiving their ballots in time to send them back in the mail.

Kavanaugh Makes Wrong And Worrisome Claims About Election Results Being Reported Soon After the Polls Close

Going farther than what some of the other justices have said about pandemic voting disputes, Kavanaugh leaned into the idea that “chaos and suspicions of impropriety” will ensue if states must count mail ballots that arrive after election day.

This rhetoric echoes baseless claims that Trump has made that somehow, if an election winner cannot be declared right away, it’s a sign of fraud. Even before the pandemic, established vote-by-mail states have taken several days to declare their winners, and there has been no reason to question those results, even when the counting of mail ballots have shifted who was in the lead.

But another statement by Kavanaugh in this section is even more directly at odds with reality.

States never definitively announce election result on election night. Those calls, which are often just projections made by the media, are always based on unofficial tallies that don’t include the counting of provisional and overseas ballots that will last several days after an election.

Kavanaugh’s larger argument — that courts should defer to policy decisions made by states to ensure a quick reporting of election results — doesn’t make much sense in the context of Wisconsin, either. Not only has the state not moved the earlier request deadline, its has resisted calls to allow processing to begin before Election Day.

Kavanaugh Repeatedly Conflates A Receipt Deadline With A Submission Deadline

Under the district court order extending the receipt deadlines, voters still had to submit their absentee ballots by Election Day, as a postmark reflecting such was required to count the ballots coming in after.

Kavanaugh repeatedly conflated a deadline by which someone must submit something with a deadline by which he received.

He conflated it when comparing absentee voting policies to in person voting policies.

He conflated it when he compared Wisconsin’s receipt deadline to the IRS deadline for filing taxes.


He conflated it when making a weird baseball comparison.

Kavanaugh Thinks No One Is Worried About Voters Being Confused By Wisconsin’s Other Deadlines When A Lot of People — Including the U.S. Postal Service! — Are Actually Quite Worried That There Will Be Confusion.

Kavanaugh says, without evidence, that “no one” would think that they could request a mail ballot on Oct. 29 and have time to mail it back by Nov. 3. Actually, there’s widespread concern that voters will make that assumption. In fact, the U.S. Postal Service sent several states including Wisconsin letters pointing out that very threat.

His Backup Plan For Voters Creates It Own Headaches

Kavanaugh claims that if voters see, via ballot tracking technology, that ballots they put in the mail haven’t made it to election officials, they can show up to vote in-person instead. But this supposed failsafe is by no means a panacea. For one, in Wisconsin in particular, the state Elections Board has advised that voters should get in touch with their local election officials to spoil their ballots first. What happens if voters aren’t able to connect with local election officials to give that heads up first?

Furthermore, in other states like Pennsylvania, voters who request a mail ballot but then show up to vote in person will have to vote provisionally unless they bring the mail ballot with them.

2. In other states, like PA, the voter in the scenario Kavanaugh describes will have to vote provisionally… which will further delay the process of tabulating the results.

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