The U.S. Supreme Court’s conservatives started carving a path that could let President Donald Trump win a contested election, issuing a far-reaching set of opinions just as Amy Coney Barrett was getting Senate confirmation to provide what could be a crucial additional vote.
In a 5-3 decision released minutes before the Senate vote Monday night, the court rejected Democratic calls to reinstate a six-day extension for the receipt of mail ballots in Wisconsin, a hotly contested state that is experiencing a surge of COVID-19 cases. The Supreme Court as a whole gave no explanation for the decision.
The outcome was bad enough for Democrats, but an opinion by Trump-appointed Justice Brett Kavanaugh bordered on catastrophic. Kavanaugh suggested sympathy for Trump’s unsubstantiated contentions that votes received after Election Day would be tainted by fraud, warning that “charges of a rigged election could explode” if late-arriving ballots change the perceived outcome.
Most 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 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.”
Although Trump is trailing Democrat Joe Biden in national polls, the race is tighter in Wisconsin and other swing states that will determine who wins and are the focus of the two campaigns. Two other pivotal states, Pennsylvania and North Carolina, are awaiting Supreme Court action in cases raising similar issues.
Kavanaugh’s vote—and those of fellow Trump appointees Barrett and Neil Gorsuch—could be crucial in any post-election dispute. With Chief Justice John Roberts showing less willingness to second-guess state election decisions, Trump could need the support of all three of his appointed justices to overturn election results that seem to favor Biden.
All three Democratic appointees dissented Monday night. Writing for the group, Justice Elena Kagan blasted Kavanaugh’s word choice, as well as his reasoning.
Nothing to ‘flip’
“There are no results to ‘flip’ until all valid votes are counted,” Kagan wrote for herself and Justices Stephen Breyer and Sonia Sotomayor. “And nothing could be more suspicious or improper than refusing to tally votes once the clock strikes 12 on election night.”
The court’s decision Monday means ballots must be received by Election Day to count in Wisconsin. Democrats were seeking to revive an extension that had been ordered by a federal trial judge because of the Covid outbreak and then blocked by an appeals court.
Kagan said the worsening pandemic in Wisconsin means that without without the extension voters would have to “opt between braving the polls, with all the risk that entails, and losing their right to vote.” Kavanaugh countered that the high court order wouldn’t disenfranchise any voter who had adequately planned ahead.
The dueling opinions, however, went well beyond the Wisconsin circumstances. Kavanaugh embraced a legal theory that could let Republican-controlled state legislatures override results certified by Democratic officials. That argument, developed by three conservative justices in the 2000 Bush v. Gore case, says the Supreme Court should intervene in a presidential election dispute even when a state court is interpreting its own laws.
Dueling electors
Citing that opinion, Kavanaugh pointed to a constitutional provision that says state legislatures get to determine how electors are appointed to the Electoral College, the body that formally selects the U.S. President.
“The text of the Constitution requires federal courts to ensure that state courts do not rewrite state election laws,” Kavanaugh wrote. He was one of three current justices, including Roberts and Barrett, who worked as lawyers for Republican George W. Bush in the 2000 election fight.
Wisconsin, Pennsylvania, North Carolina and Michigan all have Republican-controlled legislatures and Democratic governors, creating the possibility those states could send dueling slates of electors to the Electoral College in the event of a disputed election.
Kavanaugh’s opinion doesn’t necessarily mean he would invalidate votes that arrive after Election Day in states where extensions are in place, said Edward Foley, director of the election law program at Ohio State University’s Moritz College of Law.
“There’s a due process principle, at least that’s recognized by lower courts,” Foley said. “You’re not supposed to change rules governing elections after ballots have been cast. That might come into play.”
Roberts alone
The Kavanaugh opinion nonetheless left many liberals alarmed at the growing possibility of a replay of Bush v. Gore, when the Supreme Court reversed the Florida Supreme Court and stopped ballot recounts that might have led to Democrat Al Gore’s election.
Kavanaugh “signaled that at least some of the conservative justices are willing to stop both state and federal courts, and state agencies, from easing voting restrictions and fixing voting problems when doing so deviates from the wishes of the state legislature,” said Rick Hasen, a election-law expert who teaches at the University of California, Irvine School of Law.
Gorsuch expressed views similar to Kavanaugh’s, if in less detail. “The Constitution provides that state legislatures—not federal judges, not state judges, not state governors, not other state officials—bear primary responsibility for setting election rules,” Gorsuch wrote in an opinion Kavanaugh joined.
Kavanaugh’s and Gorsuch’s opinions distinguished them from Roberts. Although Roberts joined the majority in the Wisconsin case, he wrote his own opinion to explain why he previously voted to allow an extra three days for ballots to arrive in Pennsylvania. The court split 4-4 in that case last week, leaving the extension intact for the time being.
Roberts said the difference was that the Pennsylvania case involved a state court applying its own constitution.
“Different bodies of law and different precedents govern these two situations and require, in these particular circumstances, that we allow the modification of election rules in Pennsylvania but not Wisconsin,” he wrote Monday.
Pennsylvania Republicans have now filed a new request to block the extension, aiming to take advantage of Barrett’s arrival on the court.
Barrett, who began work as a justice Tuesday after taking the second of two required oaths, could now be positioned to cast the deciding vote in a 2020 version of Bush v. Gore. The dynamic “is putting Justice Barrett on the spot to make that decision,” Foley said.
Although Democrats have called on Barrett to disqualify herself from Trump-related election cases, she has given no indication she will do so.
