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Kavanaugh Tips Hand on How He Might Rule in Contested Election Case


Just before receiving Amy Coney Barrett as its newest member, the Supreme Court of the United States voted 5-3 to prevent Wisconsin from counting ballots that arrive after Election Day.

The ruling, coming down just moments before the Senate voted on Barrett’s confirmation, affirmed the Seventh Circuit’s stay of an injunction that was granted by the district court. The stay was accompanied by concurrences from Chief Justice John Roberts, Justice Neil Gorsuch, and Justice Brett Kavanaugh; Justice Elena Kagan penned a passionate dissent that was joined by Justices Stephen Breyer and Sonia Sotomayor. In their written opinions, the justices not only swiped at each other, but also raised several issues that may foreshadow SCOTUS involvement in litigation over the 2020 presidential election.

The Wisconsin District Court ruled that the Wisconsin law requiring absentee ballots to be received by election day was unconstitutional. Now reviewing that decision on appeal, Gorsuch summed up the issue bluntly:

Why did the district court seek to scuttle such a long-settled tradition in this area? COVID. Because of the current pandemic, the court suggested, it was free to substitute its own election deadline for the State’s.

Wisconsin, according to Gorsuch, had already made “considerable efforts” to allow early voting and make accommodations for the pandemic. The lower court overstepped by imposing its own  judgment in place of the state’s.

“The judge in this case tacked 6 days onto the State’s election deadline,” wrote Gorsuch, “but what about 3 or 7 or 10?”

Plus, there’s a slippery-slope issue at play. “And what’s to stop courts from tinkering with in-person voting rules too?” asked Gorsuch.  He concluded with a statement that he was determined to follow constitutional limits on the scope of judicial power:

No one doubts that conducting a national election amid a pandemic poses serious challenges. But none of that means individual judges may improvise with their own election rules in place of those the people’s representatives have adopted.

Justice Gorsuch’s concurrence, though, did not go far enough for Justice Kavanaugh. Accordingly, Kavanaugh wrote his own concurrence. In it, he gave three main reasons for voting to adhere to Wisconsin’s earlier deadline.

First, he wrote, making changes so close to an election invites chaos and confusion. Second, it’s not the not the job of the courts to handle COVID-19 – but rather, that of the legislature. There’s no practical reason to substitute the judgment of a court for that of a legislature.

“[F]ederal judges do not possess special expertise or competence about how best to balance the costs and benefits of potential policy responses to the pandemic, including with respect to elections,” explained Kavanaugh.

Kavanaugh took the opportunity to call out his brethren for contributing to just the kind of problems about which he warned. “Over the last seven months,” he wrote, “this Court has stayed numerous federal district court injunctions that second-guessed state legislative judgments about whether to keep or make changes to election rules during the pandemic.”

Third, Kavanaugh simply likes deadlines. Elections, he said, require deadlines; it’s not a burden on voters to impose them – it’s just part of how elections work. If Wisconsin wanted to require only that its ballots were postmarked by Election Day, then it was free to do so. Given that Wisconsin chose differently, the court must not interfere.

Noteworthy was Kavanaugh’s page-long footnote in which he explains his view that federal courts (such as the United States Supreme Court) have different authority over issues about state elections than do state courts. Should a court throw out a state election law, it implies disrespect to the state legislature; Kavanaugh’s take is that federal courts are there to keep state courts in line. “The text of the Constitution,” he clarified, “requires federal courts to ensure that state courts do not rewrite state election laws.”

That rationale did not originate with Brett Kavanaugh; rather, as Kavanaugh cited, it came from Chief Justice William Rehnquist’s concurrence in Bush v. Gore. That reasoning was specifically disputed by the four dissenting justices (Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer). Even Justices Anthony Kennedy and Sandra Day O’Connor–who voted with the majority–declined to join Justice Rehnquist’s concurrence (no one joined Kavanaugh’s concurrence).

Some interpreted Kavanaugh’s concurrence, along with the addition of Justice Barrett, as a clear sign of what’s to come.

Justice Elena Kagan’s dissent, joined by Justices Breyer and Sotomayor, called COVID-19 in Wisconsin, “much worse” than it had been in the spring (when the presidential primaries were held). An extended deadline, according to Kagan, “would prevent the State from throwing away the votes of people actively participating in the democratic process.” Responding to Kavanaugh’s warnings that court involvement could undermine the election process, Kagan wrote:

And what will undermine the “integrity” of that process is not the counting but instead the discarding of timely cast ballots that, because of pandemic conditions, arrive a bit after Election Day.

Kagan specifically called out Kavanaugh in a footnote while emphasizing the fundamentals of fair election procedures in the “fractious times” we live in:

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.” 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.

Legal observers immediately said that Kavanaugh’s analysis on mail-in ballots was basically “Trumpian”:

Kagan took several opportunities to eschew the logic of Kavanaugh’s concurrence. Calling Kavanaugh’s position a “federal-judges-know-best vision of election administration,” Kagan called Kavanaugh’s approach inconsistent with his views about the federal judiciary’s role in voting rights cases.

Kagan ended on a note of pragmatism, writing that a lesson could have been learned from Wisconsin’s primary–that “a slightly altered ballot-receipt deadline can save thousands of timely cast mail ballots from the garbage bin.”

The Court’s decision Monday in Democratic National Committee v. Wisconsin State Legislature sets the stage for any upcoming legal battles that may determine the winner of the 2020 presidential election. Justices Clarence Thomas and Stephen Breyer are the only two remaining justices who decided Bush v. Gore. In 2000, they were on opposite sides of the vote.

Before becoming a Supreme Court justice, John Roberts assisted George W. Bush’s legal team in Bush v. Gore. Bush nominated Roberts as chief justice after Rehnquist’s death in 2005.

Kavanaugh also worked on Bush’s case in 2000 as a private lawyer.

After the election, Bush hired Kavanaugh to be a counsel and staff secretary, and later, appointed Kavanaugh to the U.S. Court of Appeals for the District of Columbia Circuit. Kavanaugh’s wife, Ashley, served as Bush’s personal secretary.

Amy Coney Barrett worked on Bush v. Gore as well. Her law firm represented Bush, and Barrett traveled to Florida to assist while the case was in the Florida courts.  During Barrett’s confirmation hearings, she responded to questioning saying she could not recall specifics of her involvement in the case. During confirmation hearings, Barrett refused to preemptively commit to recusing herself from any case involving the upcoming presidential election; she said she thinks the case will come before the high court, and that “it’s very important that we have nine justices.”

The question of recusal, Barrett said, is “not a question I can answer in the abstract.”

“You’ll do what the Supreme Court requires of every justice?” Sen. Lindsey Graham (R-S.C.) asked.

“I will,” Barrett answered.

[image via Chip Somodevilla/Getty Images.]

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos