Kavanaugh has wild ideas about voting. They likely won't matter on Election Day. [View all]

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Rick Hasen unpacks Kavanaugh's concurrence in the Wisconsin case

Perspective | Kavanaugh has wild ideas about voting. They likely won’t matter on Election Day.
The Supreme Court’s recent rulings don’t mean the justices will decide the presidential race.
washingtonpost.com

https://www.washingtonpost.com/outlook/2020/10/27/brett-kavanaugh-election-opinion/

Should we panic about Justice Brett M. Kavanaugh’s concurring opinion in the Wisconsin voting case that the Supreme Court decided Monday night? Does it mean that the Supreme Court is going to do something crazy that will hand the election to President Trump even if Joe Biden is ahead in the count?

The short answer is that an intervention by the Supreme Court to decide the presidential election is still extremely unlikely — but if the extremely unlikely happens, there’s great reason to be worried about the court’s protection of voting rights and the integrity of the vote.

As I have been watching all the election litigation as it works its way up and down the courts, I did not expect the Wisconsin ruling to be a major one. The Supreme Court had sent a consistent signal before deciding this case that federal courts should not be easing voting rules even during the pandemic and that there should be deference to state rules. A federal-district court had extended the deadline for the receipt of absentee ballots in Wisconsin because of delays in delivering mail during the pandemic, but the U.S. Court of Appeals for the 7th Circuit, following the Supreme Court’s lead, reversed that order. Democrats and voting rights groups, inexplicably thinking they would do better before the voter-hostile Supreme Court, took the case up and lost Monday night.

So the result — another 5-3 split along party and ideological lines, with conservatives on the court once again siding with the state against those expanding voting rights — was no surprise. The court did not issue a majority opinion, but it issued 35 pages of individual opinions for the justices, and Kavanaugh’s opinion has gotten the most attention. That one did have some surprises.

Kavanaugh’s opinion advanced a controversial theory about near-absolute power of state legislatures to set rules in federal elections. It also was sloppy in talking about facts and the law, and it echoed Trump’s false talking points about the perils of voting by mail.

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