Echoing Trump, Kavanaugh argues states have an interest in finalizing results on Election Day
WASHINGTON — Associate Justice Brett Kavanaugh echoed President Donald Trump’s position on having results of a presidential election finalized on Election Day, perhaps previewing a Supreme Court fight over absentee ballots that could decide a contested outcome.
It came in a concurring opinion late Monday as Kavanaugh sided with the 5-3 majority that found absentee ballots in Wisconsin can only be counted if they are in possession of municipal clerks at the closure of polls on Nov. 3.
Kavanaugh, a Trump appointee to the court, wrote that states like Wisconsin require ballots be received by Election Day 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,” he said.
More: Supreme Court rules Wisconsin mail-in ballots must be received by Nov. 3
The election between Trump and Democratic nominee Joe Biden is Tuesday. More than 68 million people have voted early, including two thirds by mail-ballots amid the coronavirus pandemic.
Kavanaugh's opinion was not joined by any of the other justices. The court's order was unsigned, but Chief Justice John Roberts and Associate Justices Neil Gorsuch and Elena Kagan also wrote separately.
For the past year, Trump has questioned the validity of mail-in ballots and bemoaned the days or even weeks it could take to count all absentee ballots. Wisconsin and Pennsylvania, two critical battleground states, don’t allow the processing of mail-in ballots to begin until Election Day, and Michigan provides only 10 hours of work in advance, meaning it could take days to have those states' full vote tallies.
“Big problems and discrepancies with Mail In Ballots all over the USA. Must have final total on November 3rd,” Trump said Monday on Twitter. The social media platform later attached a disclaimer that “content shared in this Tweet is disputed and might be misleading.”
Trump told reporters Tuesday it "would be very, very proper and very nice if a winner were declared on Nov. 3, instead of counting ballots for two weeks, which is totally inappropriate."
"And I don't believe that that's by our laws," he said.
The notion that counting late-arriving absentee ballots, according to Kavanaugh, could “flip the results of an election" prompted a sharp rebuke by one of the court’s liberal justices.
“There are no results to ‘flip’ until all valid votes are counted,” Kagan wrote in a footnote of her dissenting opinion. “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.”
Election results aren't official until states certify them. Federal law allows the counting of absentee and provisional ballots to extend weeks after Election Day.
Projecting winners on election night is an unofficial action typically taken by the media. Deadlines to certify results vary by state. Electors meet Dec. 14 to formally cast their votes for president based on the winner of the popular votes in their states.
Kavanaugh cites Bush v. Gore as a precedent
Initial vote tallies in Pennsylvania and Wisconsin released on election night that include mostly in-person votes could favor Trump, whose supporters polling has shown are more likely to vote in-person. Election experts have warned to then prepare for a "blue shift" as absentee votes that favor Biden are counted.
The Senate on Monday confirmed Trump's nomination of Amy Coney Barrett to fill the vacancy in the high court created with Ruth Bader Ginsburg's death, meaning one of Barrett's first actions could be on post-election litigation.
More: Amy Coney Barrett confirmed to the Supreme Court, giving conservatives a 6-3 majority
In a footnote attached to his opinion, Kavanaugh also endorsed the position of former Chief Justice William Rehnquist in Bush v. Gore, which settled a recount dispute in Florida in the 2000 election, paving the way for Bush's victory.
Kavanaugh said – like Rehnquist concluded 20 years ago – the power of state legislatures prevail over state courts in regards to rules of a presidential election. Rehnquist was writing for three justices on the court.
"That's a big deal when it comes to the way he and others on the court might decide a post-election case that involves conflicts between state legislature and state courts," said Nathaniel Persily, a law professor and election law expert at Stanford University.
A potentially very important footnote in Justice Kavanaugh's concurring opinion in the Wisconsin election case...citing Bush v. Gore. pic.twitter.com/wvhyNXPRRP
— Nathaniel Persily (@persily) October 27, 2020
Supporters of Biden have worried an election dispute in states like Pennsylvania and Michigan, which have state legislatures controlled by Republicans but Democratic governors, could lead to different branches certifying competing slates of electors.
More: Experts held 'war games' on the Trump vs. Biden election. Their finding? Brace for a mess
Persily said Kavanaugh's argument could give the Trump campaign "more material" to make the case that a legislature's determination of choosing electors is conclusive.
"Much of the post-election litigation will be a fight between state court interpretations of state statutes and constitutions and state legislatures that may disagree with those interpretations," he said.
Democrats blasted the opinion.
"Take it from me," wrote Biden senior advisor Ron Klain, who worked as chief of staff for Gore. "The only way to avoid Bush v Gore II is to win by enough votes that 2020 never gets to the Supreme Court. Don't let the Court have this power: all of us, at the ballot box, need to decide this election."
Kavanaugh, a former associate counsel and staff secretary in Bush's White House, is one of three justices who worked for Bush's legal team on the Bush v. Gore case. Roberts, who was in private practice at the time, and Barrett also assisted. Barrett provided briefing assistance while working for a Washington law firm.
More: Supreme Court nominee Brett Kavanaugh's role as 'president's protector' remains shrouded in secrecy
Reach Joey Garrison on Twitter @joeygarrison.
Contributing: Richard Wolf
This article originally appeared on USA TODAY: Supreme Court: Kavanaugh echoes Trump on counting late absentee ballots
