Sometime in the next week or two, the Supreme Court may be called to weigh in on the presidential election. President Donald Trump has, at times quite explicitly, suggested that he will seek legal recourse if he thinks the election is a fraud (or, less charitably, he may be read as saying he plans to sue if he loses).

A decision by the court this week raises the specter that it will review the case through a partisan lens. Sadly, these concerns may be well-founded.

Observers see a Republican-appointed majority, buttressed by three Trump appointees, and they fear that the justices’ political bias will determine the court’s result. More palpably, they see three justices — Brett Kavanaugh, Amy Coney Barrett and Chief Justice John  Roberts — who, in their private capacity 20 years ago, worked on George W. Bush’s election legal team in challenging the Florida results. That effort eventually produced the Bush v. Gore Supreme Court case, and gave the country a president some thought was illegitimate.

The court’s decision this week in an election case from Wisconsin will only heighten these concerns. At issue was whether or not Wisconsin would count mail-in ballots that were postmarked by Election Day but not received until after Nov. 3.  A federal district judge ordered that these late arriving ballots be counted, reasoning that the demand for mail-in ballots sparked by the COVID-19 pandemic, combined with U.S. Postal Service problems, would otherwise disenfranchise as many as 100,000 Wisconsin voters. On appeal, the Supreme Court rejected that order and allowed Wisconsin to continue with its original plan to only count ballots that arrived at the election offices by Election Day.

Kavanaugh jumped into election fray

Roberts offered a relatively minimalist approach that actually should comfort some; he said it wasn’t the federal court’s role to interfere in state ballot counting and the case would have been different if, say, the order had come from the Wisconsin legislature. If he holds to that view (and two other decisions involving Pennsylvania and North Carolina suggest he will), then Roberts is likely to try to keep the court out of the election fray as much as possible.

By contrast, Kavanaugh’s concurrence was much more aggressive and contained a full-throated assault on the integrity of mail-in ballots that, in many ways echoed Trump’s overwrought rhetoric. Even worse, however, is the way in which Kavanaugh strained to make his case — so much so that his opinion contained a number of factual errors.

For instance, Kavanaugh said states were free to change their rules due to COVID-19 and some states, like Mississippi, had chosen to make changes while others had not. “Other States such as Vermont, by contrast, have decided not to make changes to their ordinary election rules,” he wrote. That was just … wrong … so much so that Vermont has formally asked the court to correct itself.

Likewise, Kavanaugh cited a University of Chicago professor, Richard Pildes, in support of his view that delayed results might lead to charges of a rigged election. But this citation was grossly out of context. In his article, Pildes supported formally extending the deadline for mail ballots precisely to avoid the specter of a charge that the election was improper.

Far more egregious than these modest factual errors was Kavanaugh’s effort to cast broader doubt on the validity of ballots that were completed and mailed before Election Day but received after Nov. 3. He wrote: “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.”

Let’s be clear: This is legally and factually inaccurate nonsense. At best, it is a scare tactic that deliberately echoes a presidential talking point.

First, Kavanaugh calls into question, without a scintilla of evidence, the validity of elections across the nation. At least 18 states (including some very large ones) already count ballots that arrive after Election Day. And there is no evidence at all that there is any impropriety in doing so. Suggesting that “chaos and suspicion” might result if such ballots are counted is pernicious ,and utterly without factual foundation.

Second, and more to the point, Kavanaugh’s views demonstrate that he  does not understand how elections are conducted in America. The reality is that no states definitively announce their election results on election night. NONE. Only partial returns are announced that night. Every state tallies provisional ballots in the days after an election. Some, like Wisconsin and Pennsylvania, don’t even begin counting mail-in ballots until the day of the election — making it physically and logistically impossible for those ballots to all be counted on Election Day.

And so, when an election winner is “announced” on election night, it is a projection announced by media organizations based on partial returns, their assessment of the percentage of precincts reporting, exit polling and their prediction of what the final tally is likely to be. It is never the official result, which by law always trails Election Day by days or weeks.

Elections always take weeks or months

For Kavanaugh to extol Election Day certainty as a value that a state may adopt to justify its decision to reject post-Election Day absentee ballots is not just factual ignorance. It is also ahistorical illiteracy. In truth, American elections have been decided by results received beyond Election Day for our entire history.

America’s first elections during the early years took weeks, if not months, to be completed. George Washington had to wait two months for the official result in 1789. More recently, 1916 Election Day returns inaccurately suggested that Charles Evan Hughes had defeated Woodrow Wilson. And who can forget how Dewey defeated Truman on Election Day 1948? Counting ballots in the days and weeks after an election deadline is the historical norm. To suggest that a state might want to do otherwise is counter-factual, nonsensical results-mongering.

Finally, it bears noting that Justice Kavanaugh’s views are not burdened by consistency.  When he served on Bush’s 2000 election legal team — which also included Barrett and Roberts —  the team argued that ballots arriving late and without postmarks (which they thought would be pro-Bush votes), should be counted in Florida. How times have changed!

One can hope that this week’s needless denigration of mail-in ballots was merely the product of a rushed process and that, on reflection, Justice Kavanaugh will join the Chief Justice in a more restrained view of his role. He seems to have agreed with Roberts on allowing post-Election Day counts of mail-in ballots in Pennsylvania and North Carolina, suggesting this may be the case. And that would be good for America — for to follow Justice Kavanaugh over the cliff would be to cast all sense of history and reality to the winds. His views carry with them grave danger, not just to the legitimacy of the election but to the credibility of the court itself.

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