The Supreme Court has just disenfranchised a significant number of voters in Wisconsin, who will not be able to get their votes counted because of deliberate Republican sabotage. I have a thread detailing Kagan’s dissent here, but these are the key points:
Kagan, appropriately, mocks Kavanaugh for not wanting the disenfranchisement of voters the Republican majority of the Court has done again and again this cycle from being called by its true name pic.twitter.com/FY8286i5fS— Scott Lemieux (@LemieuxLGM) October 27, 2020
Kagan’s footnote 3 addresses Kavanaugh’s Trump-in-full argument that if the leader changes when continuing to count absentee ballots after midnight on election day the result has “flipped.” This is someone openly willing to steal an election by disenfranchising voters, full stop. pic.twitter.com/TKpVcBtmSL— Scott Lemieux (@LemieuxLGM) October 27, 2020
Kavanaugh’s assertion that it is more important to avoid accusations of theft by stopping the first vote count prematurely than to count all the votes is extraordinary. (Even Bush didn’t argue that the initial count had to be stopped at midnight.) Equally disturbing is his embrace of Rehnquist’s nutty Bush v. Gore concurrence arguing that because state legislatures have the initial power over elections state judicial review is somehow preempted, an obviously specious argument nobody believes outside of the context of elections. (By that logic the Supreme Court would be unable to adjudicate commerce clause cases.) Kavanaugh is all but announcing that he’s willing to be Trump’s partner in declaring victory on November 3 and stopping all subsequent vote counts if he’s ahead.
While we’re here, Neil Gorsuch has one of his patented smarmy and disingenuous civics lessons:
Absolutely none of this describes what is happening in Wisconsin. The legislature is not being deliberative and seeking “social consensus.” It’s a minority faction that his installed itself as the state’s permanent government irrespective of the will of the voters (with Gorsuch’s assistance.) Gorsuch claims earlier that legislators, unlike judges, can be held accountable, but these legislators can’t! And they have used their position to deliberately act to disenfranchise voters.
The Supremacy Clause does not vanish when elections are at issue. State legislatures do not have the authority to intentionally disenfranchise voters. The District Court’s order extending the counting deadline was an appropriate remedy, and the Roberts Court’s ongoing war on voting rights must be addressed with comprehensive judicial reform.