Jurisprudence

Let’s Count All the Errors and Lies in Brett Kavanaugh’s Defense of Voter Suppression

Brett Kavanaugh and Donald Trump at the Supreme Court in November 2018.
The White House

While the Senate confirmed Amy Coney Barrett on Monday night, Justice Brett Kavanaugh handed down a startling opinion that laid out how the Supreme Court could steal the election for Donald Trump. Kavanaugh’s opinion was an assault on the integrity of America’s upcoming election; it was also extraordinarily sloppy, riddled with errors that would make even a traffic court judge blush. It’s worth highlighting these mistakes, not just to set the record straight but also to show how Kavanaugh uses falsehoods to twist the law against voting rights.

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Mistake No. 1: Vermont hasn’t changed its election laws in response to the pandemic.

Monday’s order required Wisconsin to disqualify ballots that are mailed by Election Day but arrive shortly thereafter. A federal judge had ordered the state to count these ballots, but SCOTUS shot him down by a 5–3 vote. Kavanaugh defended his vote by writing that some states modified their voting rules in light of the pandemic while some did not. This divided response, Kavanaugh suggested, demonstrates that it’s perfectly reasonable for states to ignore the pandemic’s impact on elections and refuse to make voting easier and safer. Kavanaugh cited Vermont as an example of a state that has “decided not to make changes to their ordinary election rules.”

As the Vermont Secretary of State’s Office pointed out on Tuesday, Kavanaugh’s claim is “simply not true.” Because of COVID-19, Vermont chose to mail every registered voter a ballot on Oct. 1 this year. This action limits the risk that voters will receive their ballots when it is too late to mail them back on time. Vermont also authorized ballot processing 30 days out from the election to speed up vote-counting. “Those are our VT specific solutions,” the office wrote. It also provided the relevant state guidance to a commenter who considered sending a correction to Kavanaugh. Clearly, Vermont Secretary of State Jim Condos is not happy that a sitting Supreme Court justice spread misinformation about his state’s election procedures.

Mistake No. 2: States declare the winner of an election on election night.

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In one shocking passage, Kavanaugh baselessly cast doubt on the validity of mail ballots that arrive after Election Day in language echoing Trump’s. Noting that some states throw out these ballots, he wrote:

These 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.

There are really two errors here. The first is that late-arriving ballots can “flip” an election, which is obviously false; as Justice Elena Kagan retorted in dissent, “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.”

The second error lies in Kavanaugh’s claim that states “definitively announce the results of the election on election night.” That is untrue: The media may call an election on election night; a candidate may call an election on election night; but the states do not “definitively announce the results” on election night. To the contrary, every state formally certifies results in the days or weeks following an election; zero certify results on election night. There is a good reason why: It takes a while to count every ballot, including those from members of the military, which frequently arrive late. A state’s duty is not to satisfy anxious candidates and voters but to get the count right. It is only cynical politicians who insist that a state must announce the results immediately.

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Mistake No. 3: The Supreme Court unanimously endorsed a radical theory during the 2000 election litigation.

The most eye-popping part of Kavanaugh’s opinion was tucked away in a lengthy footnote that sought to retcon a theory too radical for the Bush v. Gore majority into the law of the land. To recap briefly: In Bush v. Gore, George W. Bush’s legal team—which included Kavanaugh, Barrett, and John Roberts—claimed that SCOTUS must police state courts’ interpretation of their own state’s election laws. These lawyers asserted that state courts unconstitutionally usurp power from state legislatures when they construe election laws in a way that SCOTUS doesn’t like. Sandra Day O’Connor and Anthony Kennedy ultimately balked at this theory, favoring a different rationale to hand Bush the election.

On Monday, however, Kavanaugh claimed that a “unanimous” Supreme Court endorsed the very theory that O’Connor and Kennedy rejected in Bush v. Gore. This position never drew support from a majority of the justices, let alone all of them. So how did Kavanaugh pass off this lie? He cited Bush v. Palm Beach County Canvassing Board, the decision that preceded Bush v. Gore. But Palm Beach County did not say that federal courts must police state courts’ interpretation of election law. In fact, it barely said anything at all. Palm Beach County merely asked the Florida Supreme Court to clarify an earlier decision. It even included a disclaimer that the decision declined to review “the federal questions asserted to be present.”

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In other words, Palm Beach County did not enshrine Kavanaugh’s theory into law. It did not make any law, or even accept Bush’s contention that he had raised a genuine constitutional claim.

Mistake No. 4: There is a rule against federal courts changing voting rules before an election.

Kavanaugh alleged that the Supreme Court “has repeatedly emphasized that federal courts ordinarily should not alter state election laws in the period close to an election.” That’s false. The Supreme Court has never stated this rule in a majority opinion. It has enforced it in a series of unsigned orders released without oral arguments, full briefing, or an opinion of the court—the so-called shadow docket cases. Kavanaugh is pretending that these shadow docket orders qualify as bona fide precedent. They do not.

Mistake No. 5: No one thinks they can return their ballot by Election Day if they request it by Oct. 29.

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Kavanaugh wrote: “No one thinks that voters who request absentee ballots as late as October 29 can both receive the ballots and mail them back in time to be received by election day.” He cites no support for this assumption, probably because it’s wrong. Many states explicitly allow voters to request absentee ballots even closer to Election Day and instruct them to mail their ballots back. A large number of voters do wait until the last minute to ask for a ballot, which is why a strict deadline disenfranchises so many people. In August, the Postal Service encouraged 46 states to change their deadlines, warning them that ballots requested and returned in accordance with state law might not make it back in time. The Postal Service would not have sent out this warning if “no one” thought the states’ existing deadlines were unrealistic.

There are several other confusing and dishonest aspects of Kavanaugh’s opinion, many of them spotted by Talking Points Memo’s eagle-eyed Tierney Sneed. Here’s a sampling:

● Kavanaugh quoted New York University law professor Richard Pildes warning about the destabilizing effects of late-arriving ballots. But this quote came from an article in which Pildes supported extending the deadline for mail ballots—exactly what Kavanaugh sought to condemn. By plucking the quote out of context, the justice falsely implied that Pildes shared his hostility to counting every ballot.

● Again, one of Kavanaugh’s chief arguments is that only state legislatures have power to alter election laws. He wrote that the Supreme Court has blocked multiple lower court orders “that second-guessed state legislative judgments” about voting rules. The first example he cited was Merrill v. People First, in which the court halted an order that would’ve allowed Alabama counties to offer curbside voting. But the Alabama Legislature never banned curbside voting. Its Republican secretary of state simply concocted this ban out of whole cloth. By preserving a ban the Legislature never approved, Kavanaugh violated his own rule that legislatures, not governors or courts, have constitutional authority to make election laws.

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● A key premise of Kavanaugh’s opinion is that the Wisconsin Legislature is eager to count ballots as quickly as possible so a winner emerges on election night. But the Legislature has preserved an antiquated law that forbids officials from processing ballots until Election Day. Many other states, including Florida, start processing ballots much earlier so they can get out results quickly. Wisconsin Republicans rejected this reform. There are thus good reasons to question the sincerity of the Legislature’s alleged desire to count ballots fast. Kavanaugh did not even engage with this issue.

By deploying so many falsehoods in his 18-page opinion, Kavanaugh sent a signal to lower court judges: Uphold voter suppression at all costs, even if you have to ignore or contort the factual record to do it. Trump’s dozens of hackish judicial nominees will hear this message loud and clear. At least one member of the Supreme Court is willing to construct a fantasy world that is utterly detached from our grim reality of mass disenfranchisement. If we cannot trust the justices to tell the truth now, why should we believe them if they decide the election next week?

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