On Monday, the conservative-leading Supreme Court rejected a push to expand Wisconsin’s ballot processing deadline so that votes received after Election Day will count, as long as they are postmarked by the proper day.
But Slate legal journalist Mark Joseph Stern reported that Justice Brett Kavanaugh suggested he would have been willing to take it one step further.
According to Stern, Kavanaugh suggested that he would embrace a legal theory saying that not only should federal judges be blocked from expansion of voting rights ahead of elections, but state judges should be as well.
Stern notes that Kavanaugh’s theory was suggested by right-wing former Chief Justice William Rehnquist in the Bush v. Gore ruling that decided the 2000 presidential election.
Holy shit—Brett Kavanaugh just endorsed Rehnquist's concurrence in Bush v. Gore, which was too extreme for Kennedy or O'Connor.
This is a red alert. I can't believe he put it in a footnote. This is terrifying. https://t.co/BebQghfqBb pic.twitter.com/Naxo692xLl
— Mark Joseph Stern (@mjs_DC) October 26, 2020
This is VERY BAD NEWS for voting rights. Appallingly bad. Brett Kavanaugh used a footnote to throw his support behind an extreme theory that would severely limit state courts' ability to protect voting rights. It's the revenge of Bush. v. Gore. Actually, it's much worse.
— Mark Joseph Stern (@mjs_DC) October 26, 2020
How radical is Kavanaugh's theory? John Roberts felt compelled to reject it in a separate opinion, correctly noting that federal courts should keep their noses out of a state court's interpretation of its own state's election laws.
Roberts is now the moderate on voting rights. pic.twitter.com/XHJLTE1uSQ
— Mark Joseph Stern (@mjs_DC) October 26, 2020
Gorsuch also endorsed Rehnquist's position in Bush v. Gore. And Kavanaugh joined his opinion. Both want to prevent governors, state courts, and state agencies from expanding voting rights—and have federal courts decide what how the legislature *really* wanted elections to be run. pic.twitter.com/tVIuu7P7z2
— Mark Joseph Stern (@mjs_DC) October 26, 2020
As fate would have it, I wrote about this exact issue in an article that published minutes before SCOTUS handed down this order. I urge you to read it, because this is the next fight. It's already here. We're staring down the barrel of Bush v. Gore II. https://t.co/RGErc9w1xy
— Mark Joseph Stern (@mjs_DC) October 27, 2020
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