Kavanaugh’s argument for rejecting late-arriving ballots is riddled with dubious arguments

As Trump rails against voting by mail, this red state has embraced it

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The central issue in Wisconsin is made clear in a map published by the Wall Street Journal on Monday morning. It shows the average number of days it took for a first-class letter to be delivered in early September, the most recent period for which data are available. Send such a letter in Wisconsin and it took an average of 10 days for it to be delivered. That’s the average: any number of deliveries take even longer.

Perhaps that number has fallen over the past month-and-a-half. But if it hasn’t, or if a substantial number of letters are still taking about as long to be received, you can see a potential problem. If you want your ballot to be received by Election Day, eight days from Monday, it may now be too late to submit it. At the very least, you’re taking a risk in dropping it in the mailbox.

President Trump won Wisconsin by fewer than 23,000 votes in 2016, less than a percentage point. To date, 1.3 million votes have been cast in the state, more than a million of them by absentee ballot. There are still 700,000 mail-in ballots floating out there, either en route to boards of election offices or waiting to be dropped into the mail.

On Monday evening, the Supreme Court decided in a 5-to-3 decision that any of those ballots dropped into the mail tomorrow must arrive at their destination by Election Day in order to be counted. A district court had instituted a six-day grace period in order to accommodate what Justice Elena Kagan described as “unprecedented administrative and delivery delays” in her dissent from the court’s majority decision. Ballots postmarked by Election Day could still be counted if they arrived within that window. In essence, the court’s response amounted to “tough luck.”

Justice Brett M. Kavanaugh, writing in concurrence with the decision, went a bit further, raising fundamental questions (if inadvertently) about what constitutes a “vote.”

His argument for tossing the extension was threefold. First, that the court shouldn’t be changing rules so close to an election. Second, that courts shouldn’t be arbiters of decisions centered on public health concerns. Third — and most importantly — that the deadlines associated with elections were of vital importance, wherever they are drawn.

“To state the obvious, a State cannot conduct an election without deadlines,” he wrote. “It follows that the right to vote is not substantially burdened by a requirement that voters ‘act in a timely fashion if they wish to express their views in the voting booth.’ ”

“Voters who, for example, show up to vote at midnight after the polls close on election night do not have a right to demand that the State nonetheless count their votes,” he added at a later point. “Voters who submit their absentee ballots after the State’s deadline similarly do not have a right to demand that the State count their votes.”

The challenge here is obvious: What about ballots which arrive late through no fault of the voter’s own? Kavanaugh’s third argument depends heavily on blurring this question as much as possible.

“In August and September,” he explained at one point, “ … Wisconsin’s chief elections official explicitly urged voters not to wait to request a ballot: ‘It takes time for Wisconsin clerks to process your request. Then it may take up to seven days for you to receive your ballot in the mail. It can then take another seven days for your ballot to be returned by mail.’ ”

He noted that this was raised by Kagan’s dissent and that he stipulates that delays might occur. But he simply ignores that voters might receive formal instructions indicating that dropping a ballot in the mail tomorrow would leave enough time for the vote to be counted — even if it doesn’t. (All else aside, imagine the chaos if your tax return had to be received by the IRS by April 15, not just sent.)

Kavanaugh does address this question.

“In some cases, a voter may mail a completed ballot, but it may get delayed and arrive too late to be counted,” he later writes. “Indeed, in 2012 and 2016, the States rejected more than 70,000 ballots in each election because the ballots missed the deadlines. But moving a deadline would not prevent ballots from arriving after the newly minted deadline any more than moving first base would mean no more close plays.”

This is a clever analogy, but not a good one. The point isn’t to eliminate close plays, it’s to reduce them. Move the bag 10 feet closer to home and you’re certainly going to see fewer close plays at first. Allow more time for ballots to arrive and you’re certainly going to have more votes be included in the tally. The court didn’t suggest that every vote should count, whenever received.

In that section, Kavanaugh points to a footnote. There, he notes that the state has a tool for tracking a ballot online, allowing voters to track a ballot. If a submitted ballot hasn’t been received by the county, a voter can have it invalidated and vote in person. But that system, he notes, depends on the voter “meet[ing] the deadlines set by the municipality for doing so, which typically fall a few days before Election Day.” So by Friday voters need to make that call?

In 2016, a number of voters who cast absentee ballots worried that their votes weren’t counted because their ballots weren’t recorded in the online system. They were told that it could take 45 days at that point for the system to record their vote.

These questions about mechanics are one thing. There was another claim made by Kavanaugh, though, which earned a special mention in Kagan’s dissent, and understandably so.

“For important reasons,” Kavanaugh wrote, “most States, including Wisconsin, require absentee ballots to be received by election day, not just mailed by election day. 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.”

“States that require absentee ballots to be received by election day,” he added, “still have strong interests in avoiding suspicions of impropriety and announcing final results on or close to election night.”

Kavanaugh couldn’t have predicted it, but this echoed a claim made by Trump on Twitter earlier Monday.

“Big problems and discrepancies with Mail In Ballots all over the USA,” Trump wrote. “Must have final total on November 3rd.”

Twitter hid the tweet behind a warning that it included disputed information that might be “misleading about how to participate in an election or another civic process.” It certainly is misleading. There are neither established “big problems and discrepancies” with mail-in ballots nor a reason to therefore think that the final total should arrive by Nov. 3.

Kavanaugh’s assertion that votes counted after Election Day might “flip the results of an election” mirrors Trump’s rhetoric which triggered Twitter’s cautionary note. As Kagan pointed out in her dissent.

“Justice Kavanaugh alleges that ‘suspicions of impropriety’ will result if ‘absentee ballots flow in after election day and potentially flip the results of an election,’ ” she wrote. “But there are no results to ‘flip’ until all valid votes are counted. And nothing could be more ‘suspicio[us]’ or ‘improp[er]’ than refusing to tally votes once the clock strikes 12 on election night. To suggest otherwise, especially in these fractious times, is to disserve the electoral process.”

The prima facie debate here is over when a ballot needs to arrive in order to be counted. But the deeper issue is about the extent to which a ballot should be considered valid. Kagan argues that a ballot cast by a voter intending to follow the rules and the provided guidance should be considered a valid ballot. Kavanaugh argues that this is not enough for it to be included in a tally of voter preferences.

His comment about the need for caution about “flipping an election” reveals a deeper suspicion about the process. If Trump leads by 10 votes on Nov. 3 but 6,000 ballots arrive the day after having been sent on Oct. 24, most of them preferring former vice president and Democratic nominee Joe Biden, Kavanaugh worries that this constitutes an unfair rejection of the will of the public.

The subtext is the one Trump amplifies, that voters will somehow try to throw the election to their candidate once they see what happens on Nov. 3. But this is silly. If you’re worried about your candidate winning, why would you wait until they lose to want to cast your ballot? What’s more, there are safeguards in place — fraud detection systems, that need for the ballot to be postmarked — which can prevent any such effort.

As any number of others have noted, there is a reason that the inauguration of a president occurs months after the election: so that there’s time to count votes and resolve issues. Many states count ballots well after Election Day and, besides for mostly bad-faith complaints like Trump’s, there’s no real issue with it. California’s results are notoriously slow to come in and there’s no evidence at all that this allows the injection of fraudulent ballots. No elections are flipped because no elections are settled until the ballots are actually counted.

It’s likely that the court’s decision in Wisconsin will trickle out to other states facing similar issues, including Pennsylvania. Over the short term, then, it’s worth reminding voters that they should probably consider not mailing their ballots at all, instead dropping them off where they can or, if their states allow, switching to an in-person ballot.

After all, the only way to actually flip the results of an election is by ensuring your vote is counted.