Voting Rights and Democracy

Kavanaugh’s Wisconsin Opinion Flunks Originalist Test of Constitution’s Text and History

On Monday night, the Supreme Court, in a 5-3 decision, refused to reinstate a Wisconsin district court order extending the deadline for receipt of absentee ballots in that state. The Supreme Court’s order was just one page, but opinions by the Justices highlighted serious disagreements about when absentee ballots should be counted.

According to Justice Brett Kavanaugh, Wisconsin has a “weighty reason[]” for disregarding absentee ballots not received by Election Day. Echoing concerns that President Trump tweeted that same evening, Kavanaugh observed that “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.”

In her dissenting opinion, joined by Justices Stephen Breyer and Sonia Sotomayor, Justice Elena Kagan correctly noted that “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.”

Justice Kagan is right as a matter of logic—and as matter of constitutional text and history.  Contrary to Justice Kavanaugh’s suggestion, there is nothing sacrosanct about November 3, and no requirement that the country must know the victor of the presidential election that night. While media outlets and pundits frequently “call” results on Election Day, those are not official results—and they never have been.

Indeed, at the Framing—when there wasn’t even the telegraph, not to mention the internet—it would have been inconceivable that the winner would be “definitively announced” on Election Day. And unsurprisingly, the Constitution has never said that a winner must be declared on that day.

To the contrary, the Constitution simply gives Congress the authority to “determine the Time of chusing the [members of the Electoral College], and the Day on which they shall give their Votes,” and provides that that “Day shall be the same throughout the United States.” In other words, the Constitution does not even specify what day should be “Election Day,” let alone provide that all ballots should be counted on that day.

To be sure, Congress has specified that electors “shall be appointed . . . on the Tuesday next after the first Monday in November,” but that simply requires voters to cast their ballots, whether at the polls or through the mail by Election Day. Ballots that must be counted after Election Day are nothing new. Indeed, provisional ballots, military ballots, and overseas ballots are routinely counted after Election Day.

Notably, state electors do not even meet until the Monday after the second Wednesday in December, and it is that date that serves as the deadline for certifying vote counts from each state. This year that date is December 14—forty-one days after Election Day.

In other words, there is no reason why every vote needs to be counted by Election Day. Indeed, as Justice Kavanaugh acknowledges in his opinion, some states do not even require absentee ballots to be received by Election Day, let alone counted by that day.

And historically the counting of votes has often continued after Election Day to ensure that no voter is disenfranchised, even in circumstances that do not present the dangers facing voters today.  In 1960, John F. Kennedy was leading California on Election Day, “[b]ut a count of absentee ballots gave [Richard] Nixon the state several weeks later, after he conceded it to Kennedy.”  In 2012, Florida counted ballots for days after Election Day before it confirmed President Obama had carried the state.  And in 2000 the voting in Florida was so close that it took nearly five weeks of counting, re-counting, and disputing voting tallies before the Supreme Court stepped in.

In her opinion in the case, Justice Kagan powerfully explained why the Court’s decision to “disenfranchise large numbers of responsible voters in the midst of hazardous pandemic conditions” is wrong.  But whatever one thinks about the Court’s decision in this case, Justice Kavanaugh’s suggestion that all votes must be counted on Election Day has no basis in constitutional text or history. And in making that unwarranted claim, Justice Kavanaugh sows distrust in the legitimacy of absentee ballots that are counted after Election Day—distrust that he then uses to justify his argument that those ballots should simply not be counted at all.

In our amended Constitution, no right is protected more times than the right to vote, and absentee ballots, including those received after Election Day, are no less deserving of this protection than other votes.

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