Brett Kavanaugh foreshadows how Supreme Court docket may disrupt vote counting

Brett Kavanaugh foreshadows how Supreme Court docket may disrupt vote counting

Because the courtroom rejected a Democratic try to permit mail-in votes, postmarked by Election Day, to be acquired as much as six days after the election in Wisconsin, Kavanaugh additionally urged that state courts could not have the final phrase in decoding state election guidelines.

“Below the U.S. Structure, the state courts should not have a clean test to rewrite state election legal guidelines for federal elections,” Kavanaugh wrote in a footnote of his concurring opinion.

Kavanaugh’s language total mirrors President Donald Trump’s rhetoric about calling a winner on election night time.

States that require mail-in ballots to be returned by the Election Day, Kavanaugh wrote in his concurring opinion, “wish to keep away from the chaos and suspicions of impropriety that may ensue if hundreds of absentee ballots movement in after Election Day and probably flip the outcomes of an election.”

However these bulletins are by no means official: They’re projections made by nationwide broadcast networks and wire companies, based mostly on how partial outcomes evaluate to historic outcomes — not by the states themselves, which generally take weeks earlier than certifying elections.

READ: Supreme Court order and Kavanaugh concurrence rejecting attempt to extend Wisconsin ballot deadline

Republican state legislatures in some states, together with Pennsylvania, have blocked efforts to hurry up the counting of mail-in ballots on election night time. In Pennsylvania, the GOP-led legislature opposed altering insurance policies to permit clerks to start processing absentee ballots — which have been forged by extra Democrats than Republicans there — earlier than November 3. Meaning they’re going to should open them and confirm voters’ eligibility on the day of the election, probably leading to a slower-than-usual depend that steadily builds in Democrats’ favor.

Citing Bush v. Gore

Kavanaugh referenced Bush v. Gore, the courtroom’s opinion that determined the 2000 election alongside partisan and ideological traces and continues to be so controversial that it’s not often cited as precedent. He’s one in all three present justices — together with John Roberts and Amy Coney Barrett — who labored on Bush’s aspect through the authorized combat on the time.

Kavanaugh picked up on the reasoning of then-Chief Justice William Rehnquist in a concurrence that solely garnered the votes of two different justices — the late Justice Antonin Scalia and Justice Clarence Thomas.

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“The textual content of Article II signifies that the ‘clearly expressed intent of the legislature should prevail’ and {that a} state courtroom could not depart from the state election code enacted by the legislature,” Kavanaugh wrote.

Within the Wisconsin case Monday, Kavanaugh wrote to clarify why he agreed with the courtroom’s 5-3 majority to dam a federal district courtroom’s ruling that may have prolonged the deadline for the receipt of absentee ballots in Wisconsin amidst the pandemic.

Kavanaugh mentioned he thought the district courtroom modified the state’s guidelines too near an election and that courts ought to defer to state legislatures to deal with well being issues about Covid-19. He mentioned he thought that Wisconsin’s deadline is similar as that of a number of different states and is “affordable given the all of the circumstances.”

However then he shifted to the function state courts ought to play. The courtroom has but to resolve how far can state courts go to vary election guidelines put in place by state legislatures. The courtroom deadlocked on that situation in a current 4-4 break up out of Pennsylvania with out rationalization.

CNN election regulation professional Rick Hasen mentioned Kavanaugh’s writing is a serious clue.

“The conservatives on the courtroom are going to look very skeptically at any state courtroom rulings that may prolong deadlines or change guidelines for recounts or different post-election exercise,” Hasen mentioned.

Supreme Court rejects Democratic attempt to extend Wisconsin mail-in voting deadline

He famous that the courtroom had break up 4-4 on that situation final week and that Barrett may make a distinction. Barrett “may aspect with conservatives in these politically charged circumstances if she doesn’t recuse herself from collaborating in them,” he added.

Kavanaugh’s concurrence got here down simply earlier than Barrett appeared on the White Home to be sworn in as Trump’s third nominee. To many, her addition to the courtroom will mark a rightward shift. Roberts, who because the retirement of Justice Anthony Kennedy has at occasions served as a swing vote, may effectively be outflanked by the brand new conservative wing. That might imply, to some, that Kavanaugh serves as the brand new swing vote at occasions.

CNN’s Eric Bradner contributed to this report.

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