“Big problems and discrepancies with Mail In Ballots all over the USA,” Trump tweeted Monday evening. “Must have final total on November 3rd.” That false statement amplified a lie Trump and his aides have been telling with the intent of creating confusion about the count. Twitter duly attached a warning: “Some or all of the content shared in this Tweet is disputed and might be misleading about how to participate in an election or another civic process.”
In Monday’s concurring opinion, Kavanaugh echoed Trump and McInerny: “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.” The justice claimed, “States also want to be able to definitively announce the results of the election on election night, or as soon as possible thereafter.”
Kavanaugh signaled where he might go in a disputed election with the most bizarre component of his concurrence, a footnote that embraced an argument made by former Chief Justice William Rehnquist in the 2000 Bush v. Gore dispute—with the support of Justices Antonin Scalia and Clarence Thomas—that the Supreme Court could overturn rulings by state courts regarding state election laws. This radical view was outlined in a Bush v. Gore concurrence that was not embraced by two members of the conservative majority that decided the case, Justices Anthony Kennedy and Sandra Day O’Connor. Yet, Kavanaugh appeared to treat it as a precedent.
Vox offers a more detailed analysis of the decision
Kavanaugh also lifts much of his reasoning from a disreputable source. Before today, the Supreme Court’s decision in Bush v. Gore (2000), which effectively handed the presidency to George W. Bush, had only been cited once in a Supreme Court opinion — and that one citation appeared in a footnote to a dissenting opinion by Justice Clarence Thomas, which was joined by no other justice.
But Kavanaugh quotes heavily from Chief Justice William Rehnquist’s concurring opinion in Bush, which also embraced an excessively literal approach to the word “legislature.” It appears that Bush v. Gore, arguably the most partisan decision in the Court’s history — and one that Kavanaugh helped litigate — is back in favor with key members of the Court.
It’s worth noting that the decision in Democratic National Committee was handed down literally as the Senate was voting to confirm incoming Justice Amy Coney Barrett, a staunch conservative who during her confirmation hearings would not commit to recusing herself from cases involving the 2020 election.