“Kavanaugh’s Opinion in Wisconsin Voting Case Raises Alarms Among Democrats”

NYT:

The Supreme Court decision on Monday barring the counting of mail-in ballots in Wisconsin that arrive after Election Day was not a surprise for many Democrats, who had pressed for it but expected to lose.

But a concurring opinion by Justice Brett M. Kavanaugh set off alarms among civil rights and Democratic Party lawyers, who viewed it as giving public support to President Trump’s arguments that any results counted after Nov. 3 could be riddled with fraudulent votes — an assertion unsupported by the history of elections in the United States.

The decision also unnerved Democrats and local election officials in Pennsylvania, where Republicans are asking the Supreme Court to weigh in again on whether the state can accept ballots received up to three days after Election Day. While Democrats in Wisconsin had been appealing for an extension, the current rules in Pennsylvania allow for ballots to arrive three days after the election. Any change could threaten the more than 1.4 million absentee ballots not yet returned.

In his opinion, attached to the 5-to-3 ruling against the deadline extension in Wisconsin, Justice Kavanaugh wrote that Election Day mail-in deadlines were devised “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.”

He added, “Those states also want to be able to definitively announce the results of the election on election night, or as soon as possible thereafter.”

Justice Kavanaugh’s statement mirrored in some ways Mr. Trump’s efforts to suggest that only ballots counted by Election Day should decide the result, and more generally to push unfounded claims about widespread voter fraud.

Earlier on Monday, the president had posted on Twitter that election officials “must have final total on November 3rd,” alleging without evidence that there are “big problems” with mail-in ballots. Twitter labeled the tweet “misleading.”…

Mr. Kavanaugh’s concurrence was met by a dissent from Justice Elena Kagan, who wrote that “there are no results to ‘flip’ until all valid votes are counted.”

Justice Kagan wrote that nothing could be more suspicious or improper “than refusing to tally votes once the clock strikes 12 on election night.”

“To suggest otherwise,” she added, “especially in these fractious times, is to disserve the electoral process.”

Justice Kagan chastised the majority for disregarding the overriding effects of the pandemic, adding, “What will undermine the ‘integrity’ of that process is not the counting but instead the discarding of timely cast ballots that, because of pandemic conditions, arrive a bit after Election Day.”

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