SCOTUS: Ballots Received After Election Day Should Not Be Counted

Official White House Photo by Joyce N. Boghosian / Public Domain


Brett Kavanaugh gave Trump a path to steal the election by stopping the count of mail-in ballots arriving after Nov. 3.

In an opinion last night, Supreme Court Justice Brett Kavanaugh gave President Donald Trump a path to steal the 2020 election by stopping the count of mail-in ballots received after Election Day.

Kavanaugh’s opinion is riddled with bad-faith arguments, even mischaracterizing the work of a legal scholar to justify his rationale and cast aspersions on ballots arriving after November 3.

Salon explains:

Monday’s order from the Supreme Court blocked a federal judge’s order that had tweaked Wisconsin’s voting laws in light of the pandemic. The judge directed election officials to count ballots that were postmarked by Election Day but received by Nov. 9, finding that the unprecedented demand for mail ballots combined with Postal Service delays could disenfranchise up to 100,000 voters.

An appeals court blocked his decision on Oct. 8, and on Monday, SCOTUS kept it on hold by a 5–3 vote. The court offered no majority opinion, but Chief Justice John Roberts, Justice Neil Gorsuch, and Kavanaugh all wrote concurrences. Justice Elena Kagan penned a trenchant dissent joined by Justices Stephen Breyer and Sonia Sotomayor.

  • “Kavanaugh’s opinion is the most notable of the bunch because he is the new median justice and the opinion is frankly terrifying,” Salon writes.
  • The justice defended the disqualification of ballots arriving after Election Day, saying that “most states” have implemented this policy.
  • “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,” Kavanaugh writes. “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.”
  • He went on to quote New York University law professor Richard Pildes, Salon notes, though Kavanaugh misrepresented the academic’s intent.
  • Pildes wrote that 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,” but Salon notes that “Kavanaugh was quoting an article in which Pildes encouraged states to extend their ballot deadlines, directly contradicting Kavanaugh’s argument.”
  • Election officials in at least 18 states and the District of Columbia do count late-arriving ballots, Salon notes, adding: “And, in these states, there is no result to “flip” because there is no result to overturn until all valid ballots are counted.”
  • Kavanaugh, Roberts and the recently-confirmed Justice Amy Coney Barrett all worked on George W. Bush’s 2000 election legal team, Salon writes, which “argued during that contested election that ballots arriving late and without postmarks, which were thought to benefit Bush, must be counted in Florida.”

Finally, and most importantly, late-arriving ballots have handed the election to a candidate who was behind on election night on many occasions in the United States—most recently, in multiple California congressional races in 2018.

Now the country’s highest court is ready to give any such challenges the ammunition they need heading into one of the most fraught election days this country has ever seen due to the COVID-19 pandemic and a would-be strongman in the White House.

  • Salon notes that President Donald Trump, who has continuously sown seeds of doubt about the legitimacy of mail-in voting, was right on top of this latest development: “roughly 15 minutes after Kavanaugh’s opinion came down, Trump tweeted: ‘Big problems and discrepancies with Mail In Ballots all over the USA. Must have final total on November 3rd.’”

And there was another, even more startling assertion in Kavanaugh’s dissent. While referencing an earlier case, Kavanaugh dropped a bombshell in a footnote: He endorsed an argument that was too extreme for even the Bush v. Gore majority that decided the 2000 election, one that would give the Supreme Court the wholly new right to overrule state courts on their own election laws.

In Bush v. Gore, three justices—William Rehnquist, joined by Antonin Scalia and Clarence Thomas—tried to overturn the Florida Supreme Court’s interpretation of the state’s own election law. As a rule, state Supreme Courts get final say over the meaning of their own state laws. But Rehnquist, Scalia, and Thomas argued that SCOTUS must review their decisions to ensure they comply with the “intent of the legislature.”

Yet Kavanaugh cited Rehnquist’s concurrence as if it were precedent. As Rehnquist “persuasively explained in Bush v. Gore,” Kavanaugh wrote, “the text of the Constitution requires federal courts to ensure that state courts do not rewrite state election laws.” It is surreal to read these words. Rehnquist’s concurrence garnered just three votes, so it is not precedent at all.

Salon concludes:

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 analysis.

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