“The Constitution provides that state legislatures – and not federal judges, state judges, state governors, or other state officials – bear the primary responsibility for establishing electoral rules,” Judge Gorsuch wrote on Monday, in a concurring opinion in a 5-to-3 that refused to reactivate a federal judge’s order that would have extended the deadline for receiving postal votes in Wisconsin.
That leaves Judge Kavanaugh. He joined Justice Gorsuch’s opinion in the Wisconsin case and drafted his own concurring opinion, an opinion which attracted considerable attention for echoing the president’s criticism of the postal vote, for his Bush’s quote against Gore and for a factual error about voting procedures in Vermont which he corrected on Wednesday.
In his opinion in the Wisconsin case, Justice Kavanaugh devoted a long footnote to the central role that state legislatures play in establishing electoral rules. “The Constitution,” he wrote, “requires federal courts to ensure that state courts do not rewrite state election laws.”
Likewise, Justice Kavanaugh voted with the three-member Conservative bloc last week when the court stuck on whether to block a three-day extension to the deadline for receiving postal votes in Pennsylvania, which has left a decision of the highest court in the state ordering the extension in place. Neither side gave a reason, but Judge Kavanaugh’s side appeared ready to bypass state court in favor of the state legislature.
Yet on Wednesday, when the court issued two rounds of orders at least temporarily helping Democrats in Pennsylvania and North Carolina, Judge Kavanaugh remained silent even as the three-member Conservative bloc opposed it. An ordinance denied an appeal by Republicans in Pennsylvania to put their second challenge to the three-day extension on an extremely fast track that could have resulted in a decision before election day.
Judge Alito, joined by Justices Thomas and Gorsuch, echoed what Judge Kavanaugh wrote two days earlier in the Wisconsin case.
“The provisions of the Federal Constitution conferring on state legislatures, and not on state courts, the power to make rules governing federal elections would make no sense,” Judge Alito wrote, “if a court of The state could override the rules adopted by the legislature simply by asserting that a constitutional provision of the state gave the courts the power to make the rules they deemed appropriate for the conduct of a fair election. “