As the Senate was voting to elevate Amy Coney Barrett to a lifetime position on the Supreme Court on Monday night, the immediate stakes for the entire country were made suddenly clear by a critical election ruling from the court she now joins. On Monday night, Justice Brett Kavanaugh released a radical and brazenly partisan opinion that dashed any hopes he, as the Supreme Court’s new median justice, might slow-walk the court’s impending conservative revolution, while also threatening the integrity of next week’s election. In an 18-page lecture, the justice cast doubt on the legitimacy of many mail ballots and endorsed the most sinister component of Bush v. Gore. America’s new median justice is not a friend to democracy and we may pay the price for Barrett’s confirmation in just eight days.
Monday’s order from the Supreme Court blocked a federal judge’s order that had tweaked Wisconsin’s voting laws in light of the pandemic. The judge directed election officials to count ballots that were postmarked by Election Day but received by Nov. 9, finding that the unprecedented demand for mail ballots combined with Postal Service delays could disenfranchise up to 100,000 voters. An appeals court blocked his decision on Oct. 8, and on Monday, SCOTUS kept it on hold by a 5–3 vote. …
Kavanaugh’s opinion is the most notable of the bunch because he is the new median justice and the opinion is frankly terrifying. In one passage, Kavanaugh attempted to defend the Wisconsin law disqualifying ballots received after Election Day. He pointed out that “most States” share this policy, explaining:
Those 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. 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.
Kavanaugh then quoted New York University Law Professor Richard Pildes stating that the “longer after Election Day any significant changes in vote totals take place, the greater the risk that the losing side will cry that the election has been stolen.” (Kavanaugh was quoting an article in which Pildes encouraged states to extend their ballot deadlines, directly contradicting Kavanaugh’s argument.)
It is genuinely alarming that the justice cast these aspersions on late-arriving ballots. In at least 18 states and the District of Columbia, election officials do count ballots that arrive after Election Day. And, in these states, there is no result to “flip” because there is no result to overturn until all valid ballots are counted. Further, George W. Bush’s 2000 election legal team—which included Barrett, Kavanaugh, and Roberts—argued during that contested election that ballots arriving late and without postmarks, which were thought to benefit Bush, must be counted in Florida.
Finally, and most importantly, late-arriving ballots have handed the election to a candidate who was behind on election night on many occasions in the United States—most recently, in multiple California congressional races in 2018.
Of course, THAT’S the big worry.
If DJT wins, this is how he will do it.