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If the Supreme Court decides the election, it will likely all come down to Brett Kavanaugh

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President Donald Trump puts his hand on Justice Brett Kavanaugh’s shoulder during his ceremonial swearing in in the East Room of the White House October 08, 2018 in Washington, DC. 
Chip Somodevilla/Getty Images

Here’s how grim the future of voting rights looks for both large-D Democrats and small-d democrats: the pivotal vote on the Supreme Court — the justice who is likely to decide all closely divided voting rights disputes in the near future — is Brett Kavanaugh.

Brett Kavanaugh, who worked on the Republican legal team that convinced the Supreme Court to hand a presidential election to the GOP in Bush v. Gore (2000).

Brett Kavanaugh, who, after being credibly accused of attempting to sexually assault Christine Blasey Ford when they were in high school, denied the allegation then lashed out at Democrats who believed it disqualified him from serving on the nation’s highest court. “What goes around comes around,” an angry Kavanaugh told Senate Democrats, after he nearly lost his chance to serve on the Supreme Court.

And yet, since becoming a justice, Kavanaugh has staked out a position on voting rights that is less extreme than the views of many of his colleagues. That doesn’t mean that Kavanaugh is any kind of moderate — his most recent voting rights opinion leaves little doubt that he intends to banish to the sunken place longstanding doctrines protecting the right to vote. But Kavanaugh, at the very least, rejects some parts of the nihilistic approach shared by Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch.

The Court’s newest member, Justice Amy Coney Barrett, does not have much of a record on voting rights. But her scholarly writings suggest that her approach to constitutional questions resembles that of Thomas and Gorsuch. Chief Justice John Roberts, who is himself frequently hostile to voting rights law, has written that he thinks his conservative colleagues are going too far in an important dispute over whether his Court can override state judges and state officials.

That leaves Kavanaugh in the middle. The difference between Kavanaugh and his three most radical colleagues was most visible in Andino v. Middleton, a recent decision that reinstated a South Carolina law requiring absentee voters to have another person sign their ballot as a witness. Though Kavanaugh joined the Court’s decision, he did not embrace the extreme position of Justices Thomas, Alito, and Gorsuch, who would have tossed out unwitnessed ballots that were cast while the state of South Carolina was bound by a court order requiring it to count these ballots.

More recently, Kavanaugh wrote, in a decision establishing that late-arriving ballots in Wisconsin should not be counted, that the Supreme Court should take unprecedented steps to overrule state judges and other state officials who try to make it easier to vote. But he also did not join a recent opinion by Alito that suggested that the Court may step in after the election to toss out ballots that, according to the Pennsylvania Supreme Court, should be counted.

Kavanaugh, in other words, appears to be torn between a belief that well-established rules governing election disputes should be abandoned, and a competing understanding that it is unfair to disenfranchise voters who followed the rules that were in place at the time when those voters cast their ballots.

The results of the 2020 election — if the race is close and winds up in the courts — could very well hinge on how Kavanaugh resolves this tension.

Kavanaugh is very hostile to voting rights — but doesn’t go as far as his most conservative colleagues

Early in October, Kavanaugh wrote a brief concurring opinion in Andino, the ballot witness case, which reads like a manifesto of indifference to whether voters are disenfranchised.

In that case, a lower court blocked South Carolina’s witness requirement on the theory that it imposed too high a burden on voters who may be reluctant to interact with potential witnesses during a pandemic. Kavanaugh’s opinion gave two reasons why he thought this requirement should be reinstated.

The first relied on Purcell v. Gonzales (2006), a case which — at least according to Kavanaugh — established that “federal courts ordinarily should not alter state election rules in the period close to an election.”

The second reason, meanwhile, called for judicial deference to state officials’ decisions regarding how to conduct an election during a pandemic. “The Constitution ‘principally entrusts the safety and the health of the people to the politically accountable officials of the States,’” Kavanaugh wrote. Therefore, “it follows that a State legislature’s decision either to keep or to make changes to election rules to address COVID–19 ordinarily ‘should not be subject to second-guessing by an ‘unelected federal judiciary,’ which lacks the background, competence, and expertise to assess public health and is not accountable to the people.’”

Thus, Kavanaugh’s primary message to federal judges is that they should stay out of the 2020 election. Let state legislatures decide how elections will be conducted in each state, for better or for worse. And don’t intervene even if those decisions are likely to disenfranchise voters.

Notably, however, Kavanaugh did not sign onto a more radical position pushed by Thomas, Alito, and Gorsuch. (Barrett was not on the Court when Andino was decided.)

The lower court in Andino blocked the witness requirement in mid-September, but the Supreme Court did not reinstate that requirement until early October. That means that there was a brief period when South Carolina was subject to a court order requiring it to count unwitnessed ballots. At least 20,000 votes were cast in this period, and it’s likely that some of these voters did not have a witness sign their ballot, because these voters believed that they could rely on a federal court order.

Thomas, Alito, and Gorsuch took the extraordinary position that voters who failed to anticipate that the Supreme Court would change the rules after their unwitnessed ballot was already cast should have their ballots tossed out.

Kavanaugh, however, did not agree with Thomas, Alito, and Gorsuch on this point — or, at least, he did not publicly state that he agrees with them.

The radical implications of Kavanaugh’s opinion on a Wisconsin voting case

Earlier this week, however, Kavanaugh handed down another opinion suggesting that, while he is not as hostile to voting rights as his most conservative colleagues, he still wants to make radical changes that would profoundly impact American democracy.

Concurring in Democratic National Committee v. Wisconsin State Legislature, a case that determined that ballots that arrive after Election Day in Wisconsin shall not be counted, Kavanaugh pointed to a provision of the Constitution that provides that “the rules for Presidential elections are established by the States ‘in such Manner as the Legislature thereof may direct.’”

For more than a century, the Supreme Court’s understood the word “legislature,” when read in this and similar contexts, to refer to whatever the valid lawmaking process is within that state. As the Court held most recently in Arizona State Legislature v. Arizona Independent Redistricting Commission (2015), the word “legislature” should be read “in accordance with the State’s prescriptions for lawmaking, which may include the referendum and the Governor’s veto.”

But Kavanaugh rejects this longstanding view. As a general rule, the Supreme Court of the United States has the final word on questions of federal law, but state supreme courts have the final say on questions of their own state’s law. Kavanaugh would abandon this foundational rule of American constitutional law, and hold that his Court may overrule a state supreme court if five or more justices believe that a state court departed “from the state election code enacted by the legislature.”

Kavanaugh’s position also has other implications for democracy. It doesn’t just mean that a state court may not be able to protect the right to vote (because a court is not a “legislature”). It could mean that a state governor cannot veto a state election law (because the governor is not the “legislature”). Or that a state constitution may not empower an independent commission to draw un-gerrymandered legislative maps (because the commission is not the “legislature”).

At the very least, Kavanaugh’s views suggest that he’s eager to make a lot of sweeping changes to the rules governing American elections — and that these changes are likely to make our elections much less democratic.

We don’t yet know how much chaos Kavanaugh is willing to insert into the 2020 election

As explained above, Kavanaugh appears to be largely indifferent to voting rights, and is willing to give state legislatures a great deal of leeway to disenfranchise voters. Yet he did seem to balk when his most conservative colleagues suggested that the Supreme Court should be allowed to change the rules in the middle of an election, and then toss out ballots that do not comply with these new rules.

Which brings us to two other ongoing cases that could potentially decide the outcome of the 2020 election.

On Wednesday night, the Supreme Court handed down orders in Republican Party of Pennsylvania v. Boockvar and Moore v. Circosta, which concern whether late-arriving ballots should be counted in Pennsylvania and North Carolina. In both cases, state officials — but not the state legislature — decided that ballots that are mailed before Election Day and that arrive during a brief window after the election should be counted. Republicans wanted the Supreme Court to overrule these state officials and toss out these ballots.

The justices did not tell the Republican Party that it would toss out these ballots — but they didn’t exactly tell the GOP “no,” either. The Court denied the GOP’s request to order, in advance of the election, that late-arriving ballots will not be counted. But an ominous opinion by Alito suggests that the Court might revisit this question after the election.

“I reluctantly conclude that there is simply not enough time at this late date to decide the question before the election,” Alito wrote in a concurring opinion in Republican Party, which was joined by Thomas and Gorsuch. Nevertheless, he added that the case “remains before us” and could be decided “under a shortened schedule” after the election takes place. (Barrett did not participate in these cases, but she could participate if they come up again after the election.)

Litigants who seek relief from the Supreme Court can sometimes make multiple requests from the justices. They might seek a temporary order blocking a lower court’s decision, for example, and then come back to the justices later and ask them to reverse a lower court decision outright. Neither Republican Party nor Moore are fully resolved. The GOP could very well ask the justices to toss out late-arriving ballots after the election has already taken place.

Voters, in other words, might mail their ballots close to Election Day, believing that they can rely on state officials and lower courts that have said that these ballots will be counted, only to have the Supreme Court change the rules after the election is over — and order these ballots tossed out.

We know that three justices — Thomas, Alito, and Gorsuch — are willing to disenfranchise voters who failed to predict that the Supreme Court would change the rules in the future. And we know that a fourth justice, Barrett, is philosophically similar to Thomas and Gorsuch.

What we don’t know is how Kavanaugh will approach the Pennsylvania and North Carolina cases if they come before the Court again. Kavanaugh shares many of Thomas, Alito, and Gorsuch’s views on election law. And we know that he shares many of their views about whether state officials outside of the legislature can take steps to make it easier for ballots to be counted — an issue that could arise again in the Pennsylvania and North Carolina cases.

But Kavanaugh hasn’t yet shown the same willingness to disenfranchise people who followed the rules — or, at least, who followed the rules that were in place when those voters cast their ballots.

The election might not land in the courts. It may be a Biden blowout, or a fair-and-square Trump win. But if it’s close, and if Pennsylvania or North Carolina is pivotal, these are the competing considerations that Kavanaugh, likely the swing vote, will be wrestling with.

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