The five conservatives on the Supreme Court affirmed an appeals court ruling overturning a decision that would have extended Wisconsin’s mail-in ballot receipt deadline by six days. Absentee ballots in Wisconsin now must be received by the close of polls on Election Day.
This 5-3 ruling comes as part of a string of decisions by the conservatives on the court blocking lower court rulings that would have made it easier to vote during the coronavirus pandemic. But hidden within the main concurrence written by Justice Brett Kavanaugh are two threats much greater than overturning six extra days for ballots to arrive by mail: He explicitly endorsed legal theories that could help President Donald Trump stop the counting of mailed ballots after Election Day or, worse, override results with the help of Republican state legislatures.
First, Kavanaugh, who was appointed by Trump, affirmed the sentiment expressed by the president that it is somehow necessary for the election to be decided on election night and that suspicion should be cast upon valid ballots counted after Nov. 3 in states that allow election officials to do so.
“For important reasons, most States, including Wisconsin, require absentee ballots to be received by election day, not just mailed by election day,” Kavanaugh writes. “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. Moreover, particularly 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.”
These are highly controversial statements, as someone like Kavanaugh, who...