Justice Kavanaugh seems to argue no votes should be counted after Election Day. He may get his wish in key states.
The Supreme Court joined the Republicans on Monday in Wisconsin and ruled 5: 3 on an ideological basis that Wisconsin can only count postal votes that come in by election day - even if they were sent days before. Because it took an average of 10 days to deliver premium mail across the state, the Wisconsin Democratic Party urged Mail-In Democrats to hand-deliver their postal ballots or vote in person.
The practical question concerns what happens to Wisconsin's 700,000 outstanding postal ballot papers. "But the deeper problem is how far a ballot should be considered valid," writes Phillip Bump in the Washington Post. In a factually sloppy consensus opinion, Justice Brett Kavanaugh apparently welcomed President Trump's baseless conspiracies over election fraud and the bizarre demand for the winner to be announced on election night.
Many states require postal ballot papers to arrive by election day because they want "to avoid the chaos and suspicion of inappropriateness that can arise when thousands of postal ballots are received after election day and potentially turn the results of an election," wrote Kavanaugh. "And these states also want to be able to finally announce the election results on election night or as soon as possible afterwards."
Justice Elena Kagan noted in her dissent that "there are no results that can be" flipped "until all valid votes are counted. And nothing could be" more suspicious [us] "or" inappropriate "than to refuse, once Counting votes The clock strikes 12 on election night. "
In a broader sense, Kavanaugh - and Justice Neil Gorsuch - took the consensus opinion of the late Chief Justice William Rehnquist in Bush v. Gore in 2000, who invented a legal theory that was "so radically, so contrary to the basic principles of democracy and federalism, that two conservative judges opposed" Mark Joseph Stern writes in Slate after they agreed to the White House to be handed over to George W. Bush in a supposedly one-time decision.
Rehnquist argued that state courts cannot interpret state election laws in federal elections, Stern writes, "a breathtaking assault on state sovereignty" that would transform the Supreme Court "into a national electoral authority with veto power over the electoral rules of any state." . After Judge Amy Coney Barrett goes on trial, Conservatives will likely have five votes to implement Rehnquist's theory and cast ballots in Pennsylvania and North Carolina as well as Wisconsin, he added. "In other words, Barrett's first decisions as justice can determine the outcome of the election."
More stories from theweek.com
The very different emotional lives of Trump and Biden voters
The 19 biggest and worst ads for 2020 presidential campaign
The Trump administration surrendered to the pandemic
Click to receive the most important news as a notification!
This eye-opening experience has me rethinking how Social Security figures into my retirement planning
‘Picture of Elegance’ Scottish Deerhound Captures Best in Show at National Dog Show
'Betrayed' Black asylum seekers say Trump administration is ramping up deportations by force and fraud
Alibaba vies for a piece of China's booming EV market
Oil Tries To Settle Above $45.50
China wields patriotic education to tame Hong Kong's rebellious youth