Justice Kavanaugh's 'sloppy' opinion is an embarrassing mess riddled with errors
Late Monday night, the Supreme Court issued a ruling blocking a lower court's decision to force Wisconsin election officials to extend the deadline for accepting mail-in ballots, as long as they were post-marked by Election Day. This decision to limit ballot access was unsurprising given the conservative majority on the court, but as I noted, Justice Brett Kavanaugh's concurring opinion disturbed many readers because of the views it seemed to express about voting and elections.
But there's a related aspect of Kavanaugh's opinion that has attracted significant attention in addition to its ideological bent. It was, many commentators noted, extraordinarily sloppy for a Supreme Court ruling. The opinion was riddled with errors, embarrassingly so, and some of which even relate to the substance of his argument.
For instance, Kavanaugh wrote:
To be sure, in light of the pandemic, some state legislatures have exercised their Article I, §4, authority over elections and have changed their election rules for the November 2020 election. Of particular relevance here, a few States such as Mississippi no longer require that absentee ballots be received before election day. See, e.g., Miss. Code Ann. §23–15–637 (2020). Other States such as Vermont, by contrast, have decided not to make changes to their ordinary election rules, including to the election-day deadline for receipt of absentee ballots. [emphasis added]
But as Vermont's own secretary of state confirmed, the state had changed its election rules this year. It sent every voter a ballot by the first of October:
That doesn't really change the substance of Kavanaugh's ruling, but it does throw doubt on his understanding of the current environment and shed light on his lackluster fact-checking.
Another mistake from Kavanaugh, though, really is important to his argument. He wrote of the reasons that states have for limiting the deadline for absentee ballot returns to Election Day itself:
States 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. 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. Moreover, particularly in a Presidential election, counting all the votes quickly can help the State promptly resolve any disputes, address any need for recounts, and begin the process of canvassing and certifying the election results in an expeditious manner. See 3 U. S. C. §5. The States are aware of the risks described by Professor Pildes: "[L]ate-arriving ballots open up one of the greatest risks of what might, in our era of hyperpolarized political parties and existential politics, destabilize the election result. If the apparent winner the morning after the election ends up losing due to late-arriving ballots, charges of a rigged election could explode."
But Kavanaugh's quote here from Professor Richard Pildes in The University of Chicago Law Review Online is extremely misleading. Pildes argued in the article cited for the opposite outcome. He urged that states extend deadlines for receiving ballots past Election Day:
States that require absentees to be received by election night or shortly after should move this date back. Even if this fall the same percentage of absentee ballots as in normal elections would be rejected for coming in too late, the same point noted above holds true: a 3 percent rejection rate risks undermining the perceived legitimacy of the election if 70 percent of the vote is cast by absentee ballot. And this problem would be compounded, of course, if mailing back ballots five days before the election is normally sufficient to get them back in time, but not this year. The overall burden on the U.S. Postal Service makes that five-day figure less realistic this time around. Moreover, if a significant number of votes come in after a receipt deadline that has not been changed and that is much tighter than in other states, ex post litigation challenging that deadline is easy to imagine. This is exactly what we do not want to face for a risk that can be mitigated in advance.
Now, Pildes' argument here isn't on exactly the same topic as the question before the court. But it's disingenuous for Kavanaugh to present him as if his argument supported the Supreme Court's decision. Pildes did agree that a long vote count could undermine trust in the election, but he also said that cutting off the deadline by Election Day also "risks undermining the perceived legitimacy of the election." It was dishonest and alarming for Kavanaugh not to acknowledge that the risks cut both ways, especially since the president that appointed him has been trying to discredit mail-in ballots.
In Wisconsin's election, the federal court pushed the date back six days. But that was for a presidential primary. In the general election, participation rates will be much higher. In choosing an updated receipt deadline that anticipates a dramatic rise in mailed-in ballots, policymakers face a trade-off. The longer the permitted time, the more ballots will be valid. But the longer that time, the longer it will take for the final result to be known. If we thought voters would be patient, that would not pose any risk. But in our climate of existential politics—with partisans all too prepared to believe or charge that elections are being manipulated, and a social-media environment poised to heap fuel onto the fire—the longer after Election Day any significant changes in vote totals take place, the greater the risk that the losing side will cry that the election has been stolen.
Election administrators in different states must weigh in on whether, in their circumstances, a six-day deadline post-election is appropriate, as the federal district court held for Wisconsin. The National Vote at Home Institute, one of the leading advocacy organizations for absentee and mail-in voting, suggests the deadline should be three business days after the election, which seems unduly short under our new circumstances. But state legislatures and election officials need to start facing this issue soon.
Others picked up on another error in the section of Kavanaugh's opinion cited above. He warned about a situation in which "thousands of absentee ballots flow in after election day and potentially flip the results of an election" [emphasis added]. But this is completely wrong. Additional ballots don't flip the "results" of an election because there are no results until all the legitimate votes are counted. Kavanaugh surely knows this, because he worked on the Republican side in Bush v. Gore, which was an extensive argument about the counting of ballots after Election Day in Florida. There was no result until the election was certified. States don't typically "definitively announce the results of the election on election night," either, as Kavanaugh claimed. The media, of course, makes projections about what the final vote will be prior to certification, but that's not the same — as we learned in 2000 when the media incorrectly projected the Florida results. It's rhetoric like Kavanaugh's that truly serves to undermine the legitimacy of this process, rather than extensions of deadlines.
Kavanaugh's argument also incorrectly claimed that the the desire to obtain a quick election result was the Wisconsin legislator's reason for not extending the mail-in ballot deadline. But as Talking Points Memo reporter Tierney Sneed pointed out, this is clearly not so. Otherwise, Wisconsin would have permitted mail-in ballots that were received prior to Election day to be counted ahead of time, making the final count much more efficient. It has not done so, which likely means the ballot counting will extend past Election Night.
Despite Kavanaugh's claim, it's more plausible that the Republican-dominated Wisconsin legislature doesn't want to receive late mail-in ballots because they think those votes will advantage Democrats.
Kavanaugh cited a case that came to the Supreme Court during the disputed 2000 presidential election before Bush v. Gore — Bush v. Palm Beach County Canvassing Board — as standing for the proposition that state legislatures have this power — negating the power of state courts to expand voting rights under state constitutional provisions that protect the right to vote. As law professor Justin Levitt pointed out, though, Kavanaugh was wrong: The Supreme Court in the Palm Beach case unanimously raised but did not resolve that question. Kavanaugh further embraced this theory as advanced again by then-Chief Justice William Rehnquist in Bush v. Gore itself, but that was an opinion joined only by Justices Antonin Scalia and Clarence Thomas.
At another point in the opinion, Kavanaugh tried a clever argument to suggest that no matter the deadline that is set, some voters will miss it:
But moving a deadline would not prevent ballots from arriving after the newly minted deadline any more than moving first base would mean no more close plays. And more to the point, the fact that some ballots will be late in any system with deadlines does not make Wisconsin's widely used deadline facially unconstitutional.
This is true, but Kavanaugh seems to misunderstand the difference between a deadline for sending a ballot and the deadline for receiving it. Extending the deadline for receiving the ballot give more grace to voters for a consideration that is out of their hands: how quickly the postal service can deliver ballots. That's how many such deadlines work; for example, you only need to send your taxes into the government by April 15 — it doesn't need to receive them by that date. Kavanaugh's failure to notice the difference in this analogy is telling.
It's notable that, in all the tumult controversy that surrounded Kavanaugh's confirmation to the Supreme Court, many people told us that — whatever his personal faults — he was an excellent and upstanding jurist. This latest opinion gives us reason to question that conclusion.
Hasen, in particular, seemed disturbed by this turn of events.
"Why was Justice Kavanaugh so sloppy with the facts and law here (and presumably in the earlier Wisconsin election per curiam)?" he asked on Twitter. "He is usually a careful writer. It just undermines his points. A huge, unforced error."
The errors and sloppiness reflect another sad fact about the court: There's little we can do to encourage good behavior among Supreme Court justices. Short of impeachment or expansion of the court — either of which would be heavy lifts, though they're possible — there are few ways to limit their power. That means Kavanaugh can write sloppy and erroneous opinions on the bench with little fear it will cost him.
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