The U.S. Supreme Court late Monday delivered a victory for the Republican Party by barring the crucial battleground state of Wisconsin from extending its Election Day deadline for the arrival of absentee ballots amid the pandemic, with Justice Brett Kavanaugh issuing an ominous concurring opinion that echoes President Donald Trump’s false narrative on mail-in voting.
The 5-3 decision along ideological lines — with the court’s five conservatives in the majority — blocked a request by Wisconsin Democrats and voting rights groups to revive a federal judge’s ruling from last month that would have allowed mail-in ballots to be counted if postmarked by Election Day and received by November 9, a six-day extension of the current deadline of November 3 at 8:00 pm.
Wisconsin Republicans quickly appealed the order, and the U.S. Court of Appeals for the Seventh Circuit blocked the ruling earlier this month.
In raising alarm about the potential consequences of the Supreme Court’s decision to uphold Wisconsin’s strict Election Day deadline as ongoing mail delays heighten fears that many ballots could arrive late, legal analysts pointed with particular dismay at the reasoning of Kavanaugh, characterizing the right-wing justice’s 18-page opinion (pdf) as a blaring signal of his willingness to abet a possible attempt by Trump to stop the counting of valid absentee ballots.
“For important reasons, most states, including Wisconsin, require absentee ballots to be received by Election Day, not just mailed by Election Day,” Kavanaugh wrote. “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.”
This is chilling, from Justice Kavanaugh in the Wisconsin voting rights case:
“If the apparent winner the morning after the election ends up losing due to late-arriving ballots, charges of a rigged election could explode.”
He’s down to steal this thing.
— Elie Honig (@eliehonig) October 27, 2020
Writing for Slate, court reporter Mark Joseph Stern argued that “it is genuinely alarming that the justice cast these aspersions on late-arriving ballots,” noting that at least 18 states and the District of Columbia 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,” Stern wrote. “Further, George W. Bush’s 2000 election legal team — which included [newly confirmed Justice Amy Coney] 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.”
“Whatever the reasons behind Kavanaugh’s performance on Monday,” Stern continued, “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.”
Just minutes after the Supreme Court issued its ruling Monday night, Trump falsely tweeted that there are “big problems and discrepancies with Mail In Ballots all over the USA.”
“Must have final total on November 3rd,” Trump added. Twitter flagged the president’s post as misleading and observers hastened to point out that the final vote count is never complete and final by Election Night.
Following the Supreme Court’s ruling and Trump’s tweet, Rep. Ro Khanna (D-Calif.), first vice chair of the Congressional Progressive Caucus, urged the public to “forget the polls” showing Democratic nominee Joe Biden with a lead over the incumbent president.
“We need overwhelming turnout to overcome a looming constitutional crisis,” Khanna said.
Truthout Is Preparing to Meet Trump’s Agenda With Resistance at Every Turn
Dear Truthout Community,
If you feel rage, despondency, confusion and deep fear today, you are not alone. We’re feeling it too. We are heartsick. Facing down Trump’s fascist agenda, we are desperately worried about the most vulnerable people among us, including our loved ones and everyone in the Truthout community, and our minds are racing a million miles a minute to try to map out all that needs to be done.
We must give ourselves space to grieve and feel our fear, feel our rage, and keep in the forefront of our mind the stark truth that millions of real human lives are on the line. And simultaneously, we’ve got to get to work, take stock of our resources, and prepare to throw ourselves full force into the movement.
Journalism is a linchpin of that movement. Even as we are reeling, we’re summoning up all the energy we can to face down what’s coming, because we know that one of the sharpest weapons against fascism is publishing the truth.
There are many terrifying planks to the Trump agenda, and we plan to devote ourselves to reporting thoroughly on each one and, crucially, covering the movements resisting them. We also recognize that Trump is a dire threat to journalism itself, and that we must take this seriously from the outset.
Last week, the four of us sat down to have some hard but necessary conversations about Truthout under a Trump presidency. How would we defend our publication from an avalanche of far right lawsuits that seek to bankrupt us? How would we keep our reporters safe if they need to cover outbreaks of political violence, or if they are targeted by authorities? How will we urgently produce the practical analysis, tools and movement coverage that you need right now — breaking through our normal routines to meet a terrifying moment in ways that best serve you?
It will be a tough, scary four years to produce social justice-driven journalism. We need to deliver news, strategy, liberatory ideas, tools and movement-sparking solutions with a force that we never have had to before. And at the same time, we desperately need to protect our ability to do so.
We know this is such a painful moment and donations may understandably be the last thing on your mind. But we must ask for your support, which is needed in a new and urgent way.
We promise we will kick into an even higher gear to give you truthful news that cuts against the disinformation and vitriol and hate and violence. We promise to publish analyses that will serve the needs of the movements we all rely on to survive the next four years, and even build for the future. We promise to be responsive, to recognize you as members of our community with a vital stake and voice in this work.
Please dig deep if you can, but a donation of any amount will be a truly meaningful and tangible action in this cataclysmic historical moment. We are presently looking for 98 new monthly donors before midnight tonight.
We’re with you. Let’s do all we can to move forward together.
With love, rage, and solidarity,
Maya, Negin, Saima, and Ziggy