Justice Kavanaugh seems to argue no votes should be counted after Election Day. He may get his wish in key states.
The Supreme Court sided with Republicans in Wisconsin on Monday, ruling 5-3 along ideological lines that Wisconsin can count only those absentee ballots that arrive by Election Day — even if they were mailed days earlier. Since first-class mail has been taking an average of 10 days to be delivered in the state, Wisconsin's Democratic Party urged mail-in Democrats to hand-deliver their absentee ballots or vote in person.
The practical issue involves what happens with Wisconsin's 700,000 outstanding absentee ballots. "But the deeper issue is about the extent to which a ballot should be considered as valid," Phillip Bump writes in The Washington Post. In a factually sloppy concurring opinion, Justice Brett Kavanaugh evidently embraced President Trump's baseless conspiracies about voter fraud and bizarre demand that the winner be announced election night.
Many states require absentee ballots to arrive by Election Day because they "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 wrote. "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."
Subscribe to The Week
Escape your echo chamber. Get the facts behind the news, plus analysis from multiple perspectives.
Sign up for The Week's Free Newsletters
From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.
From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.
Justice Elena Kagan, in her dissent, noted that "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."
More broadly, Kavanaugh — and Justice Neil Gorsuch — embraced late Chief Justice William Rehnquist's concurring opinion in 2000's Bush v. Gore, which invented a legal theory "so radical, so contrary to basic principles of democracy and federalism, that two conservative justices" rejected it, even as they agreed to hand the White House to George W. Bush in what was supposed to be a one-off decision, Mark Joseph Stern writes at Slate.
Rehnquist argued that state courts cannot interpret state election laws in federal elections, Stern writes, "a breathtaking assault on state sovereignty" that would transform the Supreme Court "into a national board of elections with veto power over each state's election rules." With Judge Amy Coney Barrett on the court, the conservatives likely have five votes to enact Rehnquist's theory, throwing out ballots in Pennsylvania and North Carolina as well as Wisconsin, he added. "In other words, Barrett's first decisions as a justice may determine the outcome of the election."
Create an account with the same email registered to your subscription to unlock access.
Sign up for Today's Best Articles in your inbox
A free daily email with the biggest news stories of the day – and the best features from TheWeek.com
Peter has worked as a news and culture writer and editor at The Week since the site's launch in 2008. He covers politics, world affairs, religion and cultural currents. His journalism career began as a copy editor at a financial newswire and has included editorial positions at The New York Times Magazine, Facts on File, and Oregon State University.
-
6 queer poets to read whenever but especially now
The Week Recommends April is National Poetry Month
By Scott Hocker, The Week US Published
-
How women's pain is often ignored in health care
the explainer The gap in care is especially glaring compared to how men are treated
By Theara Coleman, The Week US Published
-
6 serene homes in Vermont
Features Featuring a four-level Shaker barn in Hartland and a Scandinavian-inspired home in Stowe
By The Week US Published
-
Trump's first criminal trial starts with jury picks
Speed Read The former president faces charges related to hush money payments made to adult film star Stormy Daniels
By Peter Weber, The Week US Published
-
How will Israel respond to Iran's direct attack?
Speed Read Iran’s weekend attack on Israel could escalate into a wider Middle East war
By Peter Weber, The Week US Published
-
US, Israel brace for Iran retaliatory strikes
Speed Read An Iranian attack on Israel is believed to be imminent
By Peter Weber, The Week US Published
-
Congress honors real-life Rosie the Riveters
Speed Read These American women reshaped the work force during World War II
By Peter Weber, The Week US Published
-
Outgunned Ukraine could fall, US general warns
Speed Read Without more US aid, Ukraine is at risk of losing the war
By Peter Weber, The Week US Published
-
House GOP scuttles FISA vote at Trump's urging
Speed Read Right-wing lawmakers blocked Speaker Mike Johnson's surveillance bill
By Rafi Schwartz, The Week US Published
-
Arizona court reinstates 1864 abortion ban
Speed Read The law makes all abortions illegal in the state except to save the mother's life
By Rafi Schwartz, The Week US Published
-
How green onions could swing South Korea's election
The Explainer Country's president has fallen foul of the oldest trick in the campaign book, not knowing the price of groceries
By Sorcha Bradley, The Week UK Published