Why a new opinion from Brett Kavanaugh is disturbing to so many readers
Just about the time the Senate was voting 52-48 to confirm Amy Coney Barrett to become the ninth justice on the Supreme Court, the court itself released a decision Monday night on an election case centered on Wisconsin, a key swing state.
By a 5-3 ruling, the conservative majority upheld a decision blocking a district court from extending the state's deadline for accepting mail-in ballots. Because of the court's decision, Wisconsin voters' mail-in ballots won't count unless they arrive at the election office by Election Day itself, Nov. 3, even if they're postmarked before that day. That means anyone mailing in a ballot in Wisconsin who hasn't done so already should try to find alternatives to mailing in their ballots if they're not confident the postal service, which has recently faced longer delays than normal, will deliver it on time. Some election offices will accept ballots delivered in person, and some set up official drop boxes where voters can deposit their ballots without having to rely on the postal service at all. (Wisconsin voters can find more information here.)
But while the decision was disappointing for those who would like to voting access expanded and for as many ballots as possible to count, it wasn't unexpected. The conservative majority, which will shortly be expanded to six out of nine justices with the addition of Barrett, has proven itself hostile to efforts to expand the franchise.
What really disturbed many close readers of the case wasn't the predictable if unfortunate conclusion — it was a concurrence written by Justice Brett Kavanaugh.
One passage, in particular, drew a lot of attention, because it seemed to echo many of President Donald Trump's disturbing efforts to delegitimize the elections ahead of time:
For important reasons, most States, including Wisconsin, require absentee ballots to be received by election day, not just mailed by election day. Those 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." Pildes, How to Accommodate a Massive Surge in Absentee Voting, U. Chi. L. Rev. Online (June 26, 2020) (online source archived at www.supremecourt.gov). 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."
Had this been a throwaway sentence, it might have been ignored. But instead, Kavanaugh went on at length casting doubt on election results that take awhile to fully count, even though this is commonplace in the United States. And it seemed in line with many comments Trump has made trying to cast doubt on the election, including a tweet he sent Monday night (partially censored by Twitter because it violates rules around election misinformation):
Trump has also said he expects a dispute about the election to go before the Supreme Court, clearly suggesting he thinks he can't win unless the conservative judiciary hands him victory. Kavanaugh might be indicating that the president would have at least one receptive justice.
In a dissent, Justice Elena Kagan criticized Kavanaugh's remarks:
JUSTICE KAVANAUGH alleges that "suspicions of impropriety" will result if "absentee ballots flow in after election day and potentially flip the results of an election." Ante, at 7. But there 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. To suggest otherwise, especially in these fractious times, is to disserve the electoral process.
However, it's possible Kavanaugh's remarks were being over-interpreted by critics. In the context of his ruling, he was arguing that states may have the concerns he cites as a reason for having a strict Election Day deadline for receiving ballots, and that federal judges should respect that decision. That's not the same as saying the considerations are overriding or definitive in all cases, and he admitted in the subsequent paragraph that other states may legitimately make different decisions:
One may disagree with a State's policy choice to require that absentee ballots be received by election day. Indeed, some States require only that absentee ballots be mailed by election day. ... But the States requiring that absentee ballots be received by election day do so for weighty reasons that warrant judicial respect. Federal courts have no business disregarding those state interests simply because the federal courts believe that later deadlines would be better.
Still, the length at which he went to describe the concerns about ballots coming in after Election Day and the credulity he showed is understandably concerning.
There's another portion of Kavanaugh's remarks that also caused significant alarm among some court watchers, though the issue is more technical. In a footnote, he approvingly cited former Chief Justice William Rehnquist's concurring opinion in the infamous 2000 election case Bush v. Gore, which handed the Republican candidate victory in the year's disputed presidential election.
Kavanaugh's footnote echoed one part of the concurrence, which was so extreme that not even all five conservative justices in the majority would sign on to it and which asserted the power of the Supreme Court to overrule state courts on matters of state law. This assertion is a massive expansion of the federal judiciary's power, a particularly notable gambit at a time conservatives are securing a two-thirds stranglehold on the highest court. It also suggests that the Supreme Court could have even more power to insert itself into a disputed election than might otherwise be the case.
"This is a red alert," said Slate's Mark Joseph Stern. "I can't believe he put it in a footnote. This is terrifying."
Others pointed out, however, that it's notable that Kavanaugh alone signed his concurrence, suggesting that the views he expressed therein are not widely held on the court. Chief Justice John Roberts even wrote a short concurrence explaining that there was a difference between the current Wisconsin case, which involved the Supreme Court ruling against the actions of a federal district court, and a recent Pennsylvania case, in which the question was whether to overturn the actions of state supreme court. Roberts did not expound on what these differences are.