Monday’s Supreme Court ruling to ban the counting of mail-order ballots in Wisconsin arriving after election day came as no surprise to many Democrats, who had insisted on it but expected to lose .
But a concurring opinion from Judge Brett M. Kavanaugh raised alarms among civil rights and Democratic Party lawyers, who saw him as public support for President Trump’s arguments that any outcome counted after November 3 could be riddled with fraudulent votes – an unsubstantiated claim. through the history of elections in the United States.
The decision also baffled Democrats and local election officials in Pennsylvania, where Republicans are asking the Supreme Court to re-examine whether the state can accept ballots received up to three days after election day. . While Wisconsin Democrats had asked for an extension, current rules in Pennsylvania allow ballots three days after the election. Any change could threaten the more than 1.4 million missing ballots not yet returned.
In his opinion, coupled with the 5-3 decision against the extension of the deadline in Wisconsin, Justice Kavanaugh wrote that the mailing deadlines on election day were designed “to avoid chaos and suspicion. irregularities that can ensue if thousands of missing ballots are circulating. after polling day and potentially reverse the results of an election. “
He added: “These states also want to be able to definitively announce election results on election night, or as soon as possible thereafter.”
Judge Kavanaugh’s statement in some ways mirrored Mr. Trump’s efforts to suggest that only ballots counted on election day should decide the outcome, and more generally to assert unfounded allegations of widespread voter fraud.
Earlier Monday, the president posted on Twitter that election officials “must have the final total by November 3,” alleging without evidence that there are “big problems” with the postal ballots. Twitter called the tweet “misleading”.
The Wisconsin decision was the latest in a series of court rulings setting the rules for how voters in different states can vote during the coronavirus pandemic and when the deadline is to receive them.
The Wisconsin ruling revealed a clear division between judges in their understanding of the courts’ role in protecting the franchise during a pandemic and left-wing voting activists concerned about how the court’s conservative majority would rule in the post-election battles.
With Trump indicating that he plans to dispute a loss, Democrats have kept a particularly cautious eye on the Supreme Court.
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It was the court that made the final decision in the 2000 Florida recount, effectively handing the state over to George W. Bush against Al Gore by just 537 votes and, with him, the presidency. In rushing to name a successor to Judge Ruth Bader Ginsburg after her death last month, Mr Trump indicated he believed the Supreme Court could again determine the winner, saying, “I think this will work out. at the Supreme Court, and I think it’s very important that we have nine judges.
He hinted that he expected the court to weigh in on his electoral fraud charges, saying: “The scam will be before the United States Supreme Court. And I think having a 4-4 situation is not a good situation.
The concept expressed by Justice Kavanaugh that the late ballot count could “reverse the results” distorts the voting process, where official results are often not fully tabulated for days or even weeks after an election.
And, this year, both sides expect Democrats to vote by mail in greater numbers than Republicans, and Republicans to vote in person in greater numbers than Democrats will – leading to a potential scenario in which the early results might appear favorable to Mr. Trump, only to go in the direction of Joseph R. Biden Jr., the Democratic candidate, as the mail-in ballot counts are made public.
Due to an increase in the number of postal ballots due to the pandemic, as well as delays at the postal service, civil rights groups and Democrats have pushed for the suspension of some voting rules. by correspondence in order to guarantee the greatest possible number of ballots. arrive on time and so that states and counties have more time to count them.
Republicans insisted the more restrictive rules stay in place.
Mr. Kavanaugh’s agreement was greeted by a dissenting judge Elena Kagan, who wrote that “there is no outcome to ‘return’ until all valid votes have been counted.
Justice Kagan wrote that nothing could be more suspicious or inappropriate “than refusing to count the votes once the clock strikes 12 on election night.”
“To say otherwise,” she added, “especially in these difficult times, is to undermine the electoral process.”
Justice Kagan reprimanded the majority for ignoring the overriding effects of the pandemic, adding: “What will compromise the ‘integrity’ of this process is not the count, but rather the rejection of the timely cast ballots which, due to pandemic conditions, arrive shortly after Election Day. “
Democrats have openly feared that Mr. Trump’s attacks would create the false impression that the fraud is a serious threat to the integrity of the election and use it as a basis for challenging the postal vote. For Democrats, Judge Kavanaugh’s opinion seemed to reward the approach, treating voters’ perceptions of fraud – which Mr. Trump tries so hard to influence – as potentially crucial.
The Supreme Court’s decision in the Wisconsin case came in response to an emergency petition, so it did not have the weight of a case that had been fully argued before it. But it took on added significance for both sides in the run-up to an election many expect to be challenged, and because it came on a day when Mr. Trump won a sixth Tory vote in court. with confirmation from Justice Amy Coney Barrett.
Richard L. Hasen, professor of law and political science at the University of California at Irvine, said Judge Kavanaugh’s reference to “suspicion of impropriety” revealed a “Trumpian state of mind.” More substantially, Mr Hasen said, his opinion bodes well for a more difficult climb for civil rights groups and Democrats in election year cases that come before the Supreme Court.
The president’s success in placing his candidates throughout the federal court system led to a shift to the right in the ideological balance of several important federal appeal circuits and cemented the conservative majority in the Supreme Court.
They joined with other Tories in staying several lower court rulings that had been in favor of expanding voting access during the pandemic, including in Wisconsin, where District Court Judge William M. Conley, had decided for the Democrats by extending the deadline. to count the ballots.
It was the second time the Supreme Court has intervened in a decision by Justice Conley this year. In the spring, he suspended his decision granting an extension for postal votes on the eve of the primary elections, which included races for the Democratic nomination and a major race for justice from the state’s Supreme Court. In that case, however, the court allowed election officials to continue counting the ballots for several days after polling day, provided the ballots were postmarked on or before it.
Judge Kavanaugh played a leading role in both cases and agreed with other Conservatives on voting rights matters, relying on state legislatures and their rights to enact strict measures. to institute remains extremely rare.
The opinions expressed by Judge Kavanaugh rocked the voting rights groups.
“Even without the reasoning, it is very clear that what the Court has done throughout this election season has made it clear that federal courts will not be important sources of protecting the right to vote before the election,” said Wendy R. Weiser, the director of the democracy program at the Brennan Center for Justice.
“It is the unique constitutional role of the courts to protect individual rights like the right to vote, and they treat it as political decisions,” she added.
Democrats had anticipated the court ruling in the Wisconsin case and focused on efforts on Tuesday to persuade voters not to wait until the last minute and risk not having their ballots in the mail arrive at time to be counted.
Judge Kavanaugh’s opinion has also worried voting groups in Pennsylvania.
Previously, the court had blocked 4 to 4 on a challenge to a similar extension of the voting deadline in the state, although it was Republicans who appealed a decision of the state Supreme Court, rather than a decision of the federal court.
The deadlocked decision meant that the state’s Supreme Court decision was held and that ballots stamped on polling day could be counted as long as they arrived within three days.
The state’s Republicans, however, immediately returned to federal court for the Western District of Pennsylvania, with an almost identical argument against extending the ballot. Their apparent plan was a return appearance before the Supreme Court with newly installed Justice Barrett, who hoped to side with the other Tory members and overturn the extension.