In Wisconsin, the court rejected a democratic attempt to allow mail-in ballots to be cast for six days after the election.
“Under the U.S. Constitution, state courts do not have a blank check to rewrite state election law for federal elections,” Kavanaugh wrote in a follow-up to his agreed opinion.
Kavanagh’s language as a whole mirrors President Donald Trump’s rhetoric about calling the winner on election night.
States that need to withdraw mail-in ballots by election day, Kavanaugh wrote in his unanimous opinion, “want to avoid chaos and suspicion of disadvantage if thousands of absentee ballots flow after election day and could flip potential results.”
But those announcements are by no means official: allegations made by national broadcast networks and wire services are based on how partial results compare to historical results – not by states, which take weeks before the election is certified.
In several states, including Pennsylvania, Republican state legislatures have blocked efforts to speed up the counting of mail-in ballots on election night. In Pennsylvania, the GOP-led legislature before Nov. 3, cut by more Democrats than Republicans – who opposed changing policies to allow the process of absentee ballots to begin, meant they would have to open them and scrutinize voters. . Eligibility on election day, perhaps, results in a slower pace that consistently favors Democrats.
Bush v. Gore quotes
Kevnaho agreed with the then Chief Justice William Rehnquist’s argument that only two Justices – Justice Antonin Scalia and Justice Clarence Thomas – had voted on Tuesday.
“The text of Article II means that ‘the clearly stated purpose of the legislature must prevail’ and the state court cannot deviate from the State Election Code framed by the MLA,” Kavanahot wrote.
In the Wisconsin case Monday, Kevnaho wrote to explain why he agreed with a 3-3 majority of the court to overturn a federal district court ruling that would extend the deadline for obtaining absentee ballots in Wisconsin amid the epidemic.
Kavanaugh said he thinks the district court has changed the state rules in the run-up to the election and the court should adjourn state legislatures to address health concerns about Covid-19. He said he thinks Wisconsin’s deadline is the same as many other states and is “reasonable considering all conditions.”
But then the state courts turned to the role they should play. The court has not yet decided how far the state courts can go to change the election rules laid down by the state legislatures. The court deflocked the issue after a recent split-4 split from Pennsylvania without explanation.
CNN election law expert Rick Hussein said Kavanagh’s writing is the key.
“The court’s rhetoric is to view the judgments of any state court in a very skeptical manner that may extend or change the time limit for post-election activities or other counting activities,” Hussein said.
He noted that the court split the issue 4-4 last week and that Barrett could make a difference. Barrett “could be with the servicers in politically charged cases, if she refuses to take part in it herself,” he added.
Kavanagh’s consent came down before Barrett would be sworn in as Trump’s third candidate at the White House. For many, its addition to the court will mark a right-wing shift. After the retirement of Judge Anthony Kennedy, Roberts, who at one time served as a swing vote, could well be represented by the new Rs. This may mean to some that Kavanagh is acting as a new swing vote at some point.
CNN’s Eric Bradner contributed to this report.
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