Civics books tell us the winners of elections are announced after all the votes are cast and counted.
But Supreme Court Justice Brett Kavanaugh doesn’t have time to consult civics books. He’s too busy doing the political bidding of the man who nominated him for the high court, Donald Trump.
The embattled president, who is grabbing for any procedural straw that might secure him a second term, has for months been peddling nonsense about how and when to count ballots cast in what is likely to be the highest-turnout election in more than a century. “Big problems and discrepancies with Mail In Ballots all over the USA,” Trump tweeted Monday evening. “Must have final total on November 3rd.” That false statement amplified a lie Trump and his aides have been telling with the intent of creating confusion about the count. Twitter duly attached a warning: “Some or all of the content shared in this Tweet is disputed and might be misleading about how to participate in an election or another civic process.”
Unfortunately, no warning was attached to the concurrence filed by Kavanaugh in support of Monday night’s 5-3 decision by the Supreme Court to strike down a lower federal court’s ruling that Wisconsin had to count absentee ballots postmarked on Election Day. The five justices had varying rationales for their intervention, which deviated from a stance the high court took regarding Wisconsin’s April 7 election. But Kavanaugh explicitly channeled the false narrative of Trump and his toadies, who have argued that mail-in votes that are postmarked on November 3 (or even before that date) but arrive afterward will somehow wrongly reverse the Election Day will of the voters. “What we want election night to look like is…a situation where we know who the President of the United States is on election night. That’s how the system is supposed to work,” press secretary Kayleigh McEnany told Fox News last month.
In Monday’s concurring opinion, Kavanaugh echoed Trump and McEnany: “States want 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.” The justice claimed, “States also want to be able to definitively announce the results of the election on election night, or as soon as possible thereafter.”
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Justice Elena Kagan used her dissenting opinion to school the Trump appointee on election law:
Justice Kavanaugh alleges that “suspicions of impropriety” will result if “absentee ballots flow in after election day and potentially flip the results of an election.” But there are no results to ‘flip’ until all valid votes are counted. And nothing could be more “suspicio[us]” or “improp[er]” than refusing to tally votes once the clock strikes 12 on election night. To suggest otherwise, especially in these fractious times, is to disserve the electoral process.
This is not a close call. Kavanaugh’s wrong. Kagan’s right.
Elections are not delegitimized by a long count. In fact, the careful scrutiny of ballots to ensure that a clear winner is determined is the standard that itself ensures legitimacy. Media outlets love to declare winners on election night. And candidates love to claim their victories. It’s an elaborate ritual that people have gotten used to over the years. But the rush to declare the process finished before all the votes are counted has a long history of producing “Dewey Defeats Truman” headlines. To avoid that prospect, and to guard against cynical manipulations of the news cycle by Trump and his minions, election law experts have been telling voters and reporters that it’s necessary to move away from the expectation that we will have results on election night. In some states, they warn, we could be looking at “election month.”
“Regardless of what candidates might say, the default has to be a race or a state is ‘too early to call’ if there are a lot of uncounted mail-in ballots,” election law expert Rick Hasen told The Nation last month. A bipartisan panel Hasen convened urged media outlets to, among other measures, “emphasize the need for a careful count, rather than reporting that [a complicated timeline] reflects an institutional failure,” and “explain why shifts in vote margins are routine as counts of mail ballots are conducted and not indicative of fraud.”
Unfortunately, even if the media gets it, Kavanaugh has signaled that he is prepared to do Trump’s bidding as a member of a high-court majority that will be even more inclined to engage in right-wing judicial activism with the addition Monday night of Justice Amy Coney Barrett. While Justice John Roberts has at times distanced himself from the excesses of his conservative colleagues, he went along with the conservatives on Monday’s ruling regarding Wisconsin. And, now, no matter what Roberts does, there is a chance that a new and more extreme right-wing majority will engage in far more active partisanship—with Trump’s most controversial appointee, Kavanaugh, taking the lead.
Kavanaugh signaled where he might go in a disputed election with the most bizarre component of his concurrence, a footnote that embraced an argument made by former Chief Justice William Rehnquist in the 2000 Bush v. Gore dispute—with the support of Justices Antonin Scalia and Clarence Thomas—that the Supreme Court could overturn rulings by state courts regarding state election laws. This radical view was outlined in a Bush v. Gore concurrence that was not embraced by two members of the conservative majority that decided the case, Justices Anthony Kennedy and Sandra Day O’Connor. Yet, Kavanaugh appeared to treat it as a precedent, writing in a nearly page-long footnote:
As Chief Justice Rehnquist explained in Bush v. Gore, the important federal judicial role in reviewing state-court decisions about state law in a federal Presidential election “does not imply a disrespect for state courts but rather a respect for the constitutionally prescribed role of state legislatures. To attach definitive weight to the pronouncement of a state court, when the very question at issue is whether the court has actually departed from the statutory meaning, would be to abdicate our responsibility to enforce the explicit requirements of Article II.”
The justice’s concurrence signals, on the eve of what could be an even more bitterly contested presidential election than 2000, that he is quite open to going further than the Bush v. Gore decision when it comes to meddling with vote counting in the states.
Kavanaugh knows a good deal about the Bush v. Gore fight. Like Roberts, he assisted the Republican legal team. Kavanaugh advanced arguments that were eventually accepted by the Supreme Court majority in its 5-4 ruling and was an outspoken legal activist who can he heard in an old CNN interview pushing a false narrative about “the arbitrary, standardless nature of the recount process in Florida.” After the high court handed the election to Bush, Kavanaugh went to work for the new president, who eventually appointed him to the US Court of Appeals for the D.C. Circuit.
Kavanaugh will now be able to compare notes about the 2000 fight with one more justice who recalls that “I did work on Bush v. Gore. I did work on behalf of the Republican side”: Amy Coney Barrett.
