While Kavanaugh is speculating about a “rigged election” even before it’s completed, the Court should have no role–and certainly not the final say–in the 2020 outcome.
The Supreme Court’s decision this week to bar all absentee and mail-in ballots in Wisconsin received after election day has nothing to do with U.S. law or the U.S. Constitution, and everything to do with politics.
For decades, conservative judges–including the Republican-appointed justices on the Supreme Court–have declared themselves to be “strict constructionists” of the Constitution, restraining them from weighing in on issues and cases where there are no clear-cut violations of any constitutional provision or federal law. All this high-minded talk of restraint, however, has been swept away by this purely political ruling designed to tip the scales of justice in the incumbent president’s favor. In a 5-3 decision released minutes before the Senate vote Monday night on Amy Coney Barrett's appointment to the Court, it rejected Democratic calls to reinstate a six-day extension for the receipt of mail ballots in Wisconsin, giving no explanation for the decision.
This Wisconsin decision, which defies basic principles of fairness and logic, sets the stage for the rejection of ballots postmarked before election day but received after it, through no fault of the voters and the product of an intentionally disabled postal service. This decision is particularly egregious since Trump-appointed Justice Brett Kavanaugh felt compelled to weigh in with a baldly political opinion lending credence to Trump’s unsubstantiated view that votes counted after election day would necessarily be tainted by fraud. Kavanaugh warned that “charges of a rigged election could explode” if late-arriving ballots change the perceived outcome, as if the election should be arbitrarily viewed as over on election night, even before all the ballots were counted. Kavanaugh further spoke about election results being “flipped” by ballots counted after election night, as if mail-in votes were of less worth than in-person votes counted on election day.