Before Chief Justice John Roberts’ Decades-Long Crusade Against the Voting Rights Act, there was Chief Justice William Rehnquist, a prominent figure during the years of the Republican Party’s Operation Eagle Eye to suppress minority voting.
Rehnnquist was a poll watcher with direct involvement in challenging voters as the head of a group of lawyers who challenged voters in minority Democratic precincts in Arizona. Years later during Rehnquist’s Senate confirmation hearings to become Chief Justice, a US District Attorney in Phoenix at the time testified that he had seen Rehnquist challenging black and hispanic voters at precincts in South Phoenix. Rehnquist In Arizona: A Militant Conservative In 60’s Politics. This was not disqualifying to his nomination.
Justice Rehnquist led the five Republican appointed justices who decided Bush v. Gore, the case that decided the disputed 2000 presidential election. The Court specifically declared that the case was not to be cited as precedent. Since then, I believe only Justice Clarence Thomas has cited the case, in a dissenting opinion, and not for its equal protection principles.
That is until yesterday, when Justice Brett “I like beer” Kavanaugh cited Rehnquist’s concurring opinion in Bush v. Gore as a limitation on state supreme courts to change legislative rules pursuant to equitable remedies, even in a pandemic, in blocking a federal court from extending the deadline for receipt of mail-in ballots in Wisconsin pursuant to equitable remedies. This was a clear signal on how he intends to rule on any election challenge the Trump campaign plans to file to dispute the election results.
Note: Supreme Court now has 3 Bush v. Gore alumni sitting on the bench: Chief Justice John Roberts, Justice Brett Kavanaugh and new arrival Justice Amy Coney Barrett.
Ari Berman explains at Mother Jones how Brett Kavanaugh Lays Out a Plan to Help Trump Steal the Election:
Minutes before the US Senate confirmed Amy Coney Barrett to the Supreme Court on Monday evening, the court issued a 5-3 decision to throw out mail ballots in Wisconsin that are postmarked by Election Day but arrive afterward. The ruling by the court’s conservative majority is a sharp reversal from April, when the Supreme Court allowed 80,000 late-arriving votes to be counted in Wisconsin’s primary.
Wisconsin voters can request a mail ballot until October 29, but it takes an average of 10 days to deliver a letter in Wisconsin because of Postal Service delays. The ruling could put tens of thousands of ballots at risk of being thrown out, given that 700,000 requested mail ballots have yet to returned. Trump won Wisconsin by 23,000 votes in 2016.
“The Court’s decision will disenfranchise large numbers of responsible voters in the midst of hazardous pandemic conditions,” Justice Elena Kagan wrote in her dissent.
But the ruling’s significance goes well beyond Wisconsin. In a chilling concurring opinion, Justice Brett Kavanaugh echoed President Trump’s rhetoric that ballots postmarked by Election Day but arriving afterward—which are legally required to be counted in at least 18 states—could lead to perceptions of voting malfeasance and signaled he might be prepared to throw out such ballots in any post-election dispute.
Would Kavanaugh invalidate the laws of 18 states? Or just courts extending the deadline as an equitable remedy during a pandemic?
States that require ballots to be received by Election Day “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,” Kavanaugh wrote. “And those States also want to be able to definitively announce the results of the election on election night, or as soon as possible thereafter.”
Kavanagh’s ruling, which no other justice joined, was released at nearly the exact same time Trump tweeted: “Big problems and discrepancies with Mail In Ballots all over the USA. Must have final total on November 3rd.” [Twitter concealed his tweet with a warning its content is “disputed and might be misleading about how to participate in an election.”]
Kagan sharply responded to Kavanaugh’s assertion that “suspicions of impropriety” would result if mail ballots changed the result of the election. “There are no results to ‘flip’ until all valid votes are counted,” she wrote. “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.” Some key swing states, such as Pennsylvania, Wisconsin, and Michigan, have said that the winner of their states will not be known on election night, largely because the Republican-controlled legislatures have refused to allow election officials to begin counting ballots before Election Day.
Trump has openly admitted that he wanted Barrett confirmed before the election so that she could provide the decisive vote for him in any post-election dispute over the counting of mail ballots, in a repeat of Bush v. Gore. The opinion by Kavanaugh, who may now be the swing justice on a court with a 6-3 conservative majority, makes such a doomsday scenario far more likely.
Indeed, Kavanaugh cited Bush v. Gore in his opinion, in particular a controversial section by then-Chief Justice William Rehnquist joined by only two other justices saying that the authority of state legislatures should supersede the rulings of state courts. (Kavanaugh, Roberts, and Barrett all worked on the Florida 2000 recount for George W. Bush.) This matters greatly because last week, the Supreme Court deadlocked 4-4 on whether to overturn a Pennsylvania Supreme Court ruling giving voters until the Friday after the election to return their ballots as long as they were sent by Election Day.
Pennsylvania Republicans have asked the US Supreme Court to reconsider the case before the election with Barrett seated. Even if the court declines to rehear the case before the election, Trump could try to challenge the legality of late-arriving ballots after the election and ask the court to throw them out. That could make the difference in a close election. Kavanaugh’s ruling is a green light for Trump to contest the results of the election and sends a disturbing signal about the willingness of a conservative-dominated Supreme Court to once again install a GOP president.
Mark Joseph Stern adds at Slate, Brett Kavanaugh Signals He’s Open to Stealing the Election for Trump:
[O]n Monday night, Justice Brett Kavanaugh released a radical and brazenly partisan opinion that dashed any hopes he, as the Supreme Court’s new median justice, might slow-walk the court’s impending conservative revolution, while also threatening the integrity of next week’s election. In an 18-page lecture, the justice cast doubt on the legitimacy of many mail ballots and endorsed the most sinister component of Bush v. Gore. America’s new median justice is not a friend to democracy, and we may pay the price for Barrett’s confirmation in just eight days.
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Kavanaugh’s opinion is the most notable of the bunch because he is the new median justice and the opinion is frankly terrifying. In one passage, Kavanaugh attempted to defend the Wisconsin law disqualifying ballots received after Election Day. He pointed out that “most States” share this policy, explaining:
Those 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. And those States also want to be able to definitively announce the results of the election on election night, or as soon as possible thereafter.
Kavanaugh then quoted New York University law professor Richard Pildes stating that the “longer after Election Day any significant changes in vote totals take place, the greater the risk that the losing side will cry that the election has been stolen.” (Kavanaugh was quoting an article in which Pildes encouraged states to extend their ballot deadlines, directly contradicting Kavanaugh’s argument.)
It is genuinely alarming that the justice cast these aspersions on late-arriving ballots. In at least 18 states and the District of Columbia, election officials do count ballots that arrive after Election Day. And, in these states, there is no result to “flip” because there is no result to overturn until all valid ballots are counted. Further, George W. Bush’s 2000 election legal team—which included Barrett, Kavanaugh, and Roberts—argued during that contested election that ballots arriving late and without postmarks, which were thought to benefit Bush, must be counted in Florida.
Finally, and most importantly, late-arriving ballots have handed the election to a candidate who was behind on election night on many occasions in the United States—most recently, in multiple California congressional races in 2018. Two years ago, California anticipated this possibility after extending the deadline for mail ballots, a move that signaled no chicanery. Yet Republicans seized upon it to delegitimize multiple Democratic victories. Even putative moderate Republican Young Kim raised the notion when she lost her lead after Election Day. Now the country’s highest court is ready to give any such challenges the ammunition they need heading into one of the most fraught election days this country has ever seen due to the COVID-19 pandemic and a would-be strongman in the White House.
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And there was another, even more startling assertion in Kavanaugh’s concurrence. While referencing an earlier case, Kavanaugh dropped a bombshell in a footnote: He endorsed an argument that was too extreme for even the Bush v. Gore majority that decided the 2000 election, one that would give the Supreme Court the wholly new right to overrule state courts on their own election laws. In Bush v. Gore, three justices—William Rehnquist, joined by Antonin Scalia and Clarence Thomas—tried to overturn the Florida Supreme Court’s interpretation of the state’s own election law. As a rule, state Supreme Courts get final say over the meaning of their own state laws. But Rehnquist, Scalia, and Thomas argued that SCOTUS must review their decisions to ensure they comply with the “intent of the legislature.” In other words, the Supreme Court gets to be a Supreme Board of Elections that substitutes state courts’ interpretation of state law with its own subjective view of a legislature’s “intent.” Anthony Kennedy and Sandra Day O’Connor balked at this theory, refusing to sign onto it.
Yet Kavanaugh cited Rehnquist’s concurrence as if it were precedent. As Rehnquist “persuasively explained in Bush v. Gore,” Kavanaugh wrote, “the text of the Constitution requires federal courts to ensure that state courts do not rewrite state election laws.” It is surreal to read these words. Rehnquist’s concurrence garnered just three votes, so it is not precedent at all. Neither, for that matter, is the majority decision in Bush v. Gore, which warned future courts never to rely on it as precedent. To set a good example, SCOTUS itself has never cited any part of Bush v. Gore as precedent. Its opinions are ghosts that haunt modern constitutional law. Yet Kavanaugh just declared in a footnote that he not only agrees with Rehnquist but actually views his opinion as bona fide precedent.
[W]e can probably expect Kavanaugh, along with Thomas, Alito, Gorsuch, and now Barrett, to smack down state Supreme Courts that try to expand voting rights, or even just count every ballot.
[T]he most generous explanation of Monday’s frightening opinion is that Kavanaugh started to defend his vote in these election cases and got carried away, digging a deeper hole for himself as he tried to respond to the unanswerable rejoinders in Kagan’s dissent.
The most pessimistic view is that Kavanaugh knows exactly what he’s doing: laying the groundwork to reject enough ballots to hand Trump an unearned second term while daring Democrats to do something about it, or to potentially decide critical congressional races at least. Perhaps Kavanaugh is planting his flag now, proclaiming that he won’t strike compromises for the sake of the court’s legitimacy; to the contrary, he’ll toss fuel on the fire, confident Democrats are too cowardly to retaliate.
Whatever the reasons behind Kavanaugh’s performance on Monday, he has given the nation another legitimate reason to fear that this election may end with a Bush v. Gore–like disaster for American democracy, but even worse than the original.
Voters have the power to prevent this nightmare scenario: voters need to turn out in record numbers and vote for Democrats up and down the ballot, and throw every one of these authoritarian Republican enablers of Donald Trump out of office. If the size of the victory is overwhelming, a blue tsunami if you will, the election results will not be close enough to contest in court.
And we have got to stop putting GOP voter suppressors on the Supreme Court. This should be disqualifying.
