Why Kavanaugh's mistakes in a key voting-rights case matter

Aside from the obvious problems associated with a Supreme Court justice getting things wrong, it's worth appreciating the context of Kavanaugh's errors.
Image: Brett Kavanaugh
Judge Brett Kavanaugh speaks after being nominated by President Donald Trump to the Supreme Court in the East Room of the White House on July 9, 2018.Saul Loeb / AFP - Getty Images file

A federal judge recently struck a blow for common sense in Wisconsin. In light of the coronavirus pandemic -- which is hitting the Badger State especially hard -- and widespread delays surrounding the U.S. Postal Service, District Court Judge William Conley recently ordered the state to accept ballots that arrive up to six days after Election Day, just so long as the ballots are postmarked before the polls close.

Earlier this month, three Republican-appointed judges on the 7th Circuit Court of Appeals blocked that ruling, and last night, five Republican-appointed justices on the U.S. Supreme Court also agreed to make voting in Wisconsin harder.

Wisconsin cannot count mail ballots that arrive well after the polls close under an order issued Monday by the Supreme Court, a defeat for Democrats in a battleground state. By a vote of 5-3, the justices declined to lift a lower court ruling preventing the state from counting mail ballots that arrive as much as six days after Election Day. Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan said they would have granted the request.

The practical effects of the order are of great electoral importance: voters casting absentee ballots in Wisconsin must make sure their ballots are received by the time polls close on Election Day. The postmark no longer matters: if election officials receive a ballot the day after Election Day, it will not count.

But it's also worth dwelling on the concurrence from Justice Brett Kavanaugh.

Part of what made the Trump-appointed justice's perspective extraordinary is its implications. Kavanaugh warned, for example, that states invite "chaos and suspicions of impropriety" if "thousands of absentee ballots flow in after election day and potentially flip the results of an election."

As Slate's Mark Joseph Stern explained overnight, "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 ballots arriving late and without postmarks, which were thought to benefit Bush, must be counted in Florida."

Also note Kavanaugh's factual errors. For instance, the justice pointed to Vermont as an example of a state where officials "decided not to make changes to their ordinary election rules," despite the pandemic. That's not true: the Vermont Secretary of State's office noted soon after that it was authorized, for the first time, to automatically mail ballots to each of the state's registered voters, as well as implementing a first-time, pre-election ballot-processing policy.

What's more, CNN's Marshall Cohen noted that Kavanaugh cited for support an article from NYU law professor Rick Pildes, though the article in question argues that states should, in fact, extend postmark deadlines, which is the opposite of the conclusion drawn by the justice.

A Washington Post analysis added overnight that Kavanaugh's entire argument for rejecting late-arriving ballots "is riddled with dubious arguments."

Aside from the obvious problems associated with a Supreme Court justice getting things wrong, it's important to emphasize the context: Kavanaugh made dubious arguments in a voting rights case, during an election in which the president who chose him for the bench hopes justices will help shield him from voters' will.

And as of this morning, Kavanaugh is suddenly the median justice on the ideological scale.