I have written this new piece for WaPo’s PostEverything. It begins:
Should we panic about Justice Brett M. Kavanaugh’s concurring opinion in the Wisconsin voting case that the Supreme Court decided Monday night? Does it mean that the Supreme Court is going to do something crazy that will hand the election to President Trump even if Joe Biden is ahead in the count?
The short answer is that an intervention by the Supreme Court to decide the presidential election is still extremely unlikely — but if the extremely unlikely happens, there’s great reason to be worried about the court’s protection of voting rights and the integrity of the vote….
Kavanaugh’s opinion advanced a controversial theory about near-absolute power of state legislatures to set rules in federal elections. It also was sloppy in talking about facts and the law, and it echoed Trump’s false talking points about the perils of voting by mail.
Let’s start with the point about legislative power, which could be key to any potential post-election dispute. Under Kavanaugh’s reading of the Constitution, which was echoed by Justice Neil M. Gorsuch in his separate opinion, state legislatures have almost absolute power to set the manner for conducting presidential and congressional elections (subject to congressional override for congressional elections).AD
Kavanaugh cited a case that came to the Supreme Court during the disputed 2000 presidential election before Bush v. Gore — Bush v. Palm Beach County Canvassing Board — as standing for the proposition that state legislatures have this power — negating the power of state courts to expand voting rights under state constitutional provisions that protect the right to vote. As law professor Justin Levitt pointed out, though, Kavanaugh was wrong: The Supreme Court in the Palm Beach case unanimously raised but did not resolve that question. Kavanaugh further embraced this theory as advanced again by then-Chief Justice William Rehnquist in Bush v. Gore itself, but that was an opinion joined only by Justices Antonin Scalia and Clarence Thomas.
This theory would matter if, say, Pennsylvania or North Carolina were having a dispute about a recount in which Biden was behind and the state was running out of time to resolve disputes over the ballots. Both states have Democratic-majority state supreme courts, which could order rules for resolving these disputes consistent with their state constitutions but against the wishes of the states’ Republican-dominated legislatures. The conservatives on the court could embrace Kavanaugh’s version of Rehnquist’s Bush v. Gore theory and say that the state court’s changes to allow a full vote count were impermissible, stopping the count.
And although the Supreme Court deadlocked 4-4 on a similar issue last week out of Pennsylvania, with Justice Amy Coney Barrett seated the court could now be 5-4 on this issue, even if Chief Justice John G. Roberts Jr. does not buy into the theory of broad legislative power endorsed by Kavanaugh and Gorsuch. There’s even a small chance the court will reconsider last week’s ruling in the Pennsylvania case now that Barrett has been confirmed.
Even putting aside the question about the power of state legislatures, there are further reasons to worry about Kavanaugh, a veteran of the Bush side in Bush v. Gore, in any future election law dispute. He is usually a careful analyst of legal issues, but this election law opinion was sloppy, much like the unsigned opinion (that I suspect he also wrote) in the RNC v. DNC case about deadlines in Wisconsin’s April primary. Aside from misstating the holding in the Palm Beach case, Kavanaugh mischaracterized an article by professor Richard Pildes about whether deadlines should be extended for receipt of ballots in light of the pandemic. And he mischaracterized how absentee ballot counting works.
Kavanaugh suggested without evidence that there would be a problem if voting results were not final on election night and results of the election could “flip” to another candidate, even though vote totals are never final on election night and require weeks to count. As a veteran of Bush v. Gore, Kavanaugh surely knows this; he may have even been involved in efforts in the weeks after the vote took place in Florida in 2000 to make sure that late-arriving military and overseas absentee ballots would be included in the state’s vote totals. The statement about vote totals this fall was unnecessary to his legal argument, and it served only to echo Trump’s false talking points about mail-in ballots.
The overall tenor of Kavanaugh’s opinion was not only dismissive of voting rights, but it also appeared to suggest that decisions to limit counting and enfranchisement are constitutionally mandated. If Barrett does not recuse from election disputes next month, there’s every reason to worry that a 5-4 court could interfere in the election to help Trump if a case that might swing the outcome gets before the court.