Kavanaugh opinion on ballot deadlines hints at how US Supreme Court might restrict vote-counting in Trump-Biden election

• The US Supreme Court ruled 5-3 to uphold an appeals court decision requiring mail ballots in the key battleground state of Wisconsin to be received by the time the polls close on Election Day.
• Justice Kavanaugh's concurrence drew concern because he argued states shouldn't allow ballots to arrive after Election Day. 
• He also wrote that "States also want to be able to definitively announce the results of the election on election night," even though it might take some states many days to count all their votes.
• While Chief Justice John Roberts and Justice Neil Gorsuch agreed that a lower federal court overstepped in changing Wisconsin's deadline, they didn't go as far as Kavanaugh.  
• Now, the wild card is how brand-new Justice Amy Coney Barrett will rule on the interpretation of election laws. 
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On Monday night, the US Supreme Court ruled 5-3 to require mail ballots in the key battleground state of Wisconsin to be received by the time the polls close on Election Day. It's a decision that hints at how the now nine-justice court may approach disputes over the November 3 presidential election.

Crucially, Justice Brett Kavanaugh indicated that he believes votes that arrive after election day should not be counted even if they were sent before. And he wrote that a result ought to be delivered "on election night, or as soon as possible thereafter." That's controversial because more than half of all voters have voted by mail already, and the counting of those votes could last for days after election night has ended.

The Wisconsin case revolves around exactly what the cutoff is for Wisconsin officials to accept mail ballots that are postmarked by Election Day but arrive days later. The Justices wrote concurring opinions. Justice Kavanaugh, Chief Justice John Roberts, and Justice Neil Gorsuch agreed that a lower federal court decision infringed on the Wisconsin state legislature's right to set the rules surrounding the November election as set out in Article II of the Constitution. 

Absentee ballots could 'potentially flip the results of an election'

A major flashpoint in the decision emerged between Justice Kavanaugh's concurrence and Justice Elena Kagan's dissent.

Kavanaugh's concurrence alarmed Democrats and voting rights advocates for several reasons because he cited Chief Justice Rehnquist's controversial concurrence in Bush v. Gore. That opinion advanced a theory that state courts should have very limited ability to change state laws around elections. The ruling in the case also handed the disputed election to President George W. Bush even though not all the votes had been counted. Kavanaugh was a lawyer for Bush in that case.

Kavanaugh took aim at the entire concept of counting mail ballots that are postmarked by Election Day but arrive after, which 18 states and the District of Columbia allow. He wrote that states that require ballots to be received by Election Day "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."

He also wrote that counting ought to end quickly, rather than only after all potential votes have been counted: "... States also want to be able to definitively announce the results of the election on election night, or as soon as possible thereafter," Kavanaugh wrote. "[P]articularly in a Presidential election, counting all the votes quickly can help the State promptly resolve any disputes, address any need for recounts, and begin the process of canvassing and certifying the election results in an expeditious manner."

As several commentators noted, Kavanaugh's concurrence had multiple misleading statements and comparisons, from quoting an article from New York University law professor Richard Pildes out of context, not distinguishing between receipt deadlines and submission deadlines, and incorrectly claiming that Vermont has not made any changes to its election rules during the pandemic (the legislature had in fact authorized election officials to send every registered voter a mail-in ballot). 

'There are no results to "flip" until all valid votes are counted'

Kagan directly refuted Kavanaugh in her dissent.

"Justice Kavanaugh alleges that 'suspicions of impropriety' will result if 'absentee ballots flow in after election day and potentially flip the results of an election,' Kagan wrote. "But there are no results to "flip" until all valid votes are counted. 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."

While both Justices Gorsuch and Roberts agreed that the district court acted improperly for a federal court in changing a law set by the state legislature, neither went as far as Kavanaugh in their opinions. 

"I get that there will be a lot of freaking out about Justice Kavanaugh's WI opinion today. And to be clear, I think it's bad (and also shoddy). But among the most meaningful aspects of his opinion is that he's the only one who signed it," Justin Levitt, an election law expert, and professor at Loyola Marymount University wrote on Twitter.

Barrett is the wild card — and that's why Trump wanted her on the court before the election

The unknown factor is how the newly-confirmed Justice Amy Coney Barrett would side on these issues and if she would share Kavanaugh's views that not only are state courts limited in what changes they can make to election procedure but that in principle, states should require ballots to arrive by Election Day. 

Barrett and the originalist legal approach she espouses could play a decisive role in the high court's upcoming election-related decisions. Indeed, President Donald Trump has explicitly said multiple times that he wants Barrett on the court for that reason. 

There are still two high-profile cases on ballot receipt deadlines before the court. They include another petition from Pennsylvania Republicans asking the court again to reverse the extension of Pennsylvania's mail ballot deadline from November 3 to Friday, November 6, and a petition from the Trump campaign and North Carolina Republicans asking the Supreme Court to strike down North Carolina's extended deadline for mail ballots to be received. 

Rick Hasen, an election law expert and professor at University of California-Irvine, told NPR's Morning Edition on Tuesday, "Now we have a fifth Justice, Justice Barrett, who is quite conservative. We don't know exactly how she'd rule on this issue, but if she's with the other conservatives, she could be part of a majority that, in the case of a close election, could look at more restrictive rules that could affect things like recounts," he added.