In a controversial concurrence issued Monday, Justice Kavanaugh explained why he agreed with the high court's decision to deny a request by Democrats to restore a six-day extension to the deadline for receiving mail-in ballots in Wisconsin. Justice Kavanaugh said state legislatures, not the courts, should decide their election rules.
Justice Kavanaugh said that some states like Mississippi have changed the rules so that mail-in ballots need not be received by Election Day. "Other states such as Vermont, by contrast, have decided not to make changes to their ordinary election rules, including to the election-day deadline for receipt of absentee ballots," he went on.
On Wednesday, Vermont Secretary of State Jim Condos, a Democrat, wrote a letter to the Supreme Court taking issue with Justice Kavanaugh's opinion. Condos said that, far from hewing to its normal election rules, Vermont mailed every registered voter a ballot and prepaid envelope and authorized officials to process ballots 30 days before the election. Since Wisconsin did neither of those things, "Vermont is not an accurate comparison for the assertion that Justice Kavanaugh has made," Condos said.
"I respectfully ask that the record is corrected to reflect that," he added.
Late Wednesday night, shortly after the Supreme Court handed down rulings on ballot deadlines in Pennsylvania and North Carolina, Justice Kavanaugh revised his opinion by adding one word. Where the initial opinion said Vermont made no "changes to their ordinary election rules," the new version said the state made no "changes to their ordinary election-deadline rules."
But even that revision left Condos unsatisfied. "I'm glad he admitted a mistake and modified his opinion, but a one-word addition doesn't go far enough," he said in a statement Thursday. "The opinion still misrepresents the significant changes we made here in Vermont to ensure every vote counts in the middle of a global pandemic, so that no voter has to choose between their health and their right to vote."
Condos pointed to the ballots mailed to all active registered voters with prepaid return envelopes, extensive voter outreach, and provisions for curbside and outdoor voting as well as allowing clerks to start counting ballots early.
"We have enough work on our hands combatting foreign disinformation attacks on our democratic process, all done in an attempt to weaken voter confidence in the integrity of our elections," he said. "We should not need to do the same with our own Supreme Court justices or president."
Justice Kavanaugh also came under criticism for portions of his concurrence in Monday's Wisconsin case that echoed some of President Donald Trump's rhetoric about late-arriving ballots, which Trump has called a Democratic "scam" designed to help Joe Biden.
States with Election Day deadlines for mail-in ballots "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," Justice Kavanaugh said.
Justice Elena Kagan, who would have extended Wisconsin's deadline for such ballots, responded in an opinion of her own: "But there are no results to 'flip' until all valid votes are counted," she wrote. "And nothing could be more 'suspicio[us]' or 'improp[er]' than refusing to tally votes once the clock strikes 12 on election night."
The case is Democratic National Committee et al. v. Wisconsin State Legislature et al., case number 20A66, before the U.S. Supreme Court.
--Editing by Adam LoBelia.
For a reprint of this article, please contact reprints@law360.com.
