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.
-
'Republicans want to silence Israel's opponents'
Instant Opinion Opinion, comment and editorials of the day
By Harold Maass, The Week US Published
-
Poland, Germany nab alleged anti-Ukraine spies
Speed Read A man was arrested over a supposed Russian plot to kill Ukrainian President Zelenskyy
By Peter Weber, The Week US Published
-
Today's political cartoons - April 19, 2024
Cartoons Friday's cartoons - priority delivery, USPS on fire, and more
By The Week US Published
-
Poland, Germany nab alleged anti-Ukraine spies
Speed Read A man was arrested over a supposed Russian plot to kill Ukrainian President Zelenskyy
By Peter Weber, The Week US Published
-
Israel hits Iran with retaliatory airstrike
Speed Read The attack comes after Iran's drone and missile barrage last weekend
By Peter Weber, The Week US Published
-
Is there a peaceful way forward for Israel and Iran?
Today's Big Question Tehran has initially sought to downplay the latest Israeli missile strike on its territory
By Sorcha Bradley, The Week UK Published
-
Peter Murrell: Sturgeon's husband charged over SNP 'embezzlement' claims
Speed Read SNP expresses 'shock' as former chief executive rearrested in long-running investigation into claims of mishandled campaign funds
By Arion McNicoll, The Week UK Published
-
Mark Menzies: Tories investigate MP after 'bad people' cash claims
Speed Read Fylde MP will sit as an independent while party looks into allegations he misused campaign funds on medical expenses and blackmail pay-out
By Arion McNicoll, The Week UK Published
-
Why Johnson won't just pass Ukraine aid
Speed Read The House Speaker could have sent $60 billion in military aid to Ukraine — but it would have split his caucus
By Peter Weber, The Week US Published
-
Sudan on brink of collapse after a year of war
Speed Read 18 million people face famine as the country continues its bloody downward spiral
By Peter Weber, The Week US Published
-
How powerful is Iran?
Today's big question Islamic republic is facing domestic dissent and 'economic peril' but has a vast military, dangerous allies and a nuclear threat
By Harriet Marsden, The Week UK Published