In 2000, Kavanaugh Argued Ballots Received After Election Day Should Be Counted


Brett Kavanaugh was on the legal team that argued late ballots should be counted in 2000. Now, he says the opposite.

In a decision posted yesterday evening, Supreme Court Justice Brett Kavanaugh argued it would be unfair if mail-in ballots received after Election Day were counted.

However, in Bush v. Gore — the Supreme Court decision that handed the presidency to a man who lost the popular vote — a younger Kavanaugh argued it would be unfair if ballots received after election day were not counted.

  • Kavanaugh was on the legal team that “argued during that contested election that ballots arriving late and without postmarks, which were thought to benefit Bush, must be counted in Florida,” Salon noted on Tuesday.
  • In 2001, The New York Times laid out how Bush’s team went about ensuring his presidential win.

On the morning after Election Day, George W. Bush held an unofficial lead of 1,784 votes in Florida, but to his campaign strategists the margin felt perilously slim. They were right to worry. Within a week, recounts would erode Mr. Bush's unofficial lead to just 300 votes.

With the presidency hanging on the outcome in Florida, the Bush team quickly grasped that the best hope of ensuring victory was the trove of ballots still arriving in the mail from Florida residents living abroad. Over the next 18 days, the Republicans mounted a legal and public relations campaign to persuade canvassing boards in Bush strongholds to waive the state's election laws when counting overseas absentee ballots.

Their goal was simple: to count the maximum number of overseas ballots in counties won by Mr. Bush, particularly those with a high concentration of military voters, while seeking to disqualify overseas ballots in counties won by Vice President Al Gore.

  • The newspaper’s six-month investigation of the situation included this finding: “Of the 2,490 ballots from Americans living abroad that were counted as legal votes after Election Day, The Times found 680 questionable votes.”
  • In the end, “Bush's final margin in the official total was 537 votes.”

In its investigation, The Times found that these overseas ballots -- the only votes that could legally be received and counted after Election Day -- were judged by markedly different standards, depending on where they were counted.

The unequal treatment of these ballots is at odds with statements by Bush campaign leaders and by the Florida secretary of state, Katherine Harris, that rules should be applied uniformly and certainly not changed in the middle of a contested election. It also conflicts with the equal protection guarantee that the United States Supreme Court invoked in December when it halted a statewide manual recount and effectively handed Florida to Mr. Bush.

  • Now, Kavanaugh — as well as a slew of Republicans, including President Donald Trump — argue that ballots received after Election Day should not be counted, claiming it opens the door to fraud and will cast doubt on the legitimacy of the election results.
  • As Salon noted,

Whatever the reasons behind Kavanaugh’s performance on Monday, he has given the nation another legitimate reason to fear that this election may end with a Bush v. Gore–like disaster for American democracy, but even worse than the original.

Read the full New York Times analysis.


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