Amy Coney Barrett confirmed as Democrats warn of affront to democracy – live

The US supreme court has sided with Republicans to prevent Wisconsin from counting mail-in ballots that are received after election day. From our report:

In a 5-3 ruling, the justices on Monday refused to reinstate a lower court order that called for mailed ballots to be counted if they are received up to six days after the 3 November election. A federal appeals court had already put that order on hold.

The ruling awards a victory for Republicans in their crusade against expanding voting rights and access. It also came just moments before the Republican-controlled Senate voted to confirm Amy Coney Barrett, a victory for the right that locks in a conservative majority on the nation’s highest court for years to come.

The ruling is a setback for voting rights in a key battleground state. But some analysts see an even more troubling feature in concurrences to the ruling by two Trump appointees to the court, justices Neil Gorsuch and Brett Kavanaugh.

In their concurrences, Gorsuch and Kavanaugh revive a legal argument from the 2000 showdown Bush v Gore that saw a limited ability for state courts to intervene in elections, such as by ordering a recount, because that could usurp the authority over elections held by a state legislatures.

Given the makeup of some courts, a limited ability to intervene in elections might sound nice. But the extraordinary efforts by Republican-controlled legislatures in Wisconsin, Pennsylvania and elsewhere to violate the constitutional guarantee of a right to vote for every person illustrate the need for a check and a balance – the courts.

Power to the states. Except when not. Photograph: Doug Mills/Getty Images

In his concurrence, Gorsuch objects to the Wisconsin court’s intervention to allow the counting of ballots received after election day that were mailed earlier – which with postal service breakdowns, an unusual volume of mail-in ballots, a raging pandemic and the imperative to count every vote (and tradition of doing so) would not seem unreasonable on its face.

“The Constitution provides that state legislatures—not federal judges, not state judges, not state governors, not other state officials—bear primary responsibility for setting election rules,” Gorsuch writes. Then he says that if something goes wrong in an election, Congress can fix it, which shows how far out on the limb of theory he is.

But even more alarming, to some analysts, is Kavanaugh’s concurrence, which in a footnote credits the aforementioned Florida argument about the restrictions on court powers in this area, advanced at the time by chief justice William Rehnquist.

“Under the U. S. Constitution,” Kavanaugh writes, “the state courts do not have a blank check to rewrite state election laws for federal elections.” Heedless of incursions by state legislatures on voting rights and the court’s role in asserting constitutional protections of those writes, Kavanaugh then quotes from Rehnquist:

“In a Presidential election, in other words, a state court’s ‘significant departure from the legislative scheme for appointing Presidential electors presents a federal constitutional question’.”

A further occasion for alarm in Kavanaugh’s concurrence is his sympathy to Trump’s argument that election results should be announced on election day – an argument that has surfaced this year owing to the huge opportunity for disenfranchisement Republicans have if there is suddenly a Cinderella election in which the whole thing turns into a pumpkin when the clock strikes 12.

Kavanaugh is worried about election “chaos” – not from the mass disenfranchisement of voters, but because suddenly, he argues, it is intolerable to wait hours until vote-counting is completed:

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.

On one hand you have a president doing everything he can to foment a sense of chaos about the election, and on the other you have the justice warning about the intolerable chaos that lurks if states cannot “definitively announce the results of the election on election night.”

In making his point about how states are handling voting during the pandemic smoothly, Kavanaugh advances a basic inaccuracy about election rules in Vermont, Sam Levine notes:

The Vermont secretary of state tweets in confirmation that Kavanaugh is wrong:

Here’s Ronald Klain, who served as general counsel for Al Gore’s ballot recount committee in the climactic 2000 election showdown resolved by the supreme court: