Conservatives on the US Supreme Court began to blaze a trail that could allow President Donald Trump to win a contested election, issuing a powerful set of opinions just as Amy Coney Barrett was obtaining Senate confirmation to provide which could be a crucial additional vote.
In a 5-3 decision released minutes before the Senate vote Monday night, the court rejected Democratic calls to reinstate a six-day extension for receiving mail-in ballots in Wisconsin, a highly contested state that is experiencing an increase in Covid-19 cases. . The Supreme Court as a whole gave no explanation for the decision.
The result was bad enough for Democrats, but an opinion from Trump-appointed judge Brett Kavanaugh bordered on catastrophe. Kavanaugh suggested sympathy for Trump’s unsubstantiated claims that votes cast after Election Day would be tainted with fraud, warning that “charges from a rigged election could explode” if late ballots change the perceived outcome.
Most states “want to avoid the chaos and suspicions of impropriety that can arise if thousands of absentee ballots flow in after Election Day and potentially reverse the results of an election,” Kavanaugh wrote. “And those states also want to be able to definitively announce the election results on election night, or as soon as possible thereafter.”
Although Trump is behind Democrat Joe Biden in national polls, the race is tightest in Wisconsin and other changing states that will determine who wins and are the focus of the two campaigns. Two other key states, Pennsylvania and North Carolina, await Supreme Court action in cases raising similar issues.
Kavanaugh’s vote, and that of Trump’s appointees Barrett and Neil Gorsuch, could be crucial in any post-election dispute. With Chief Justice John Roberts less willing to question state election decisions, Trump may need the support of his three appointed justices to overturn election results that appear to favor Biden.
The three designated Democrats disagreed Monday night. Writing for the group, Judge Elena Kagan criticized Kavanaugh’s choice of words, as well as his reasoning.
“There are no results to ‘change’ until all valid votes are counted,” Kagan wrote for her and justices Stephen Breyer and Sonia Sotomayor. “And nothing could be more suspicious or inappropriate than refusing to count the votes once the clock strikes 12 on election night.”
The court’s decision Monday means ballots must be received before Election Day for them to be counted in Wisconsin. Democrats were seeking to revive an extension that had been ordered by a federal judge due to the Covid outbreak and later blocked by an appeals court.
Kagan said that the worsening pandemic in Wisconsin means that without the extension voters would have to “choose between defying the polls, with all the risk involved, and losing their right to vote.” Kavanaugh responded that the higher court order would not disenfranchise any voter who had properly planned ahead.
The grieving opinions, however, went well beyond the Wisconsin circumstances. Kavanaugh adopted a legal theory that could allow Republican-controlled state legislatures to override results certified by Democratic officials. That argument, developed by three conservative justices in Bush v. Gore from 2000 says the Supreme Court should intervene in a presidential election dispute even when a state court is interpreting its own laws.
Citing that opinion, Kavanaugh pointed to a constitutional provision that says state legislatures can determine how voters are appointed to the Electoral College, the body that formally selects the president of the United States.
“The text of the Constitution requires federal courts to ensure that state courts do not rewrite state electoral laws,” Kavanaugh wrote. He was one of three current justices, including Roberts and Barrett, who served as attorneys for Republican George W. Bush in the 2000 election fight.
Wisconsin, Pennsylvania, North Carolina, and Michigan have Republican-controlled legislatures and Democratic governors, creating the potential for those states to send lists of bereaved voters to the Electoral College in the event of a contested election.
Kavanaugh’s opinion does not necessarily mean that he would invalidate votes that arrive after Election Day in states where extensions exist, said Edward Foley, director of the electoral law program at The Ohio State University Moritz School of Law.
“There is a principle of due process, at least recognized by the lower courts,” Foley said. “The rules governing elections are not supposed to be changed after the votes have been cast. That could come into play. “
Nonetheless, Kavanaugh’s opinion left many liberals alarmed by the growing possibility of a repeat of Bush v. Gore, when the Supreme Court overturned the Florida Supreme Court and stopped the vote counts that could have led to the election of Democrat Al Gore.
Kavanaugh “noted that at least some of the conservative judges are willing to prevent state and federal courts, and state agencies, from easing voting restrictions and fixing voting problems when doing so deviates from the wishes of the state legislature. “said Rick Hasen, an electoral law expert who teaches at the University of California Irvine School of Law.
Gorsuch expressed views similar to Kavanaugh’s, albeit in less detail. “The Constitution states that state legislatures, not federal judges, not state judges, not state governors, not other state officials, have the primary responsibility for establishing electoral rules,” Gorsuch wrote in an opinion he joined. Kavanaugh.
The views of Kavanaugh and Gorsuch distinguished them from Roberts. Although Roberts joined the majority in the Wisconsin case, he wrote his own opinion to explain why he previously voted to allow an additional three days for the ballots to reach Pennsylvania. The court split 4-4 in that case last week, leaving the extension intact for now.
Roberts said the difference was that the Pennsylvania case involved a state court applying its own constitution.
“Different legal bodies and different precedents govern these two situations and require, in these particular circumstances, that we allow modification of the electoral rules in Pennsylvania but not in Wisconsin,” he wrote Monday.
Pennsylvania Republicans have now filed a new request to block the extension, with the goal of taking advantage of Barrett’s arrival in court.
Barrett, who began working as a judge on Tuesday after taking the second of the two required oaths, may now be in a position to cast the deciding vote in a 2020 version of Bush v. Gore. The dynamic “is putting Judge Barrett in a rush to make that decision,” Foley said.
Although Democrats have asked Barrett to disqualify himself from Trump-related election cases, she has given no indication that she will.
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