We’ve now learned – gee, what a surprise – that Justice I Like Beer has all the intellectual heft of a Trump tweet.
His MAGA armband is wound so tight that it has cut off oxygen to his brain. Just as his patron intended. We need only take a gander at the opinion he wrote the other day in the Supreme Court’s ruling that screws the last-minute voters in Wisconsin.
Kavanaugh basically said that all the mail-in ballots postmarked on election day, and all ballots postmarked earlier but arriving after election day (thanks to USPS slowdowns) should not be counted in the presidential tally. His “reasoning” – and I use that term advisedly – was pure MAGA. What’s clear is that with this guy (and his fellow Trumpists) on the bench, democracy and the right to vote will be imperiled long after Trump is gone.
One particular passage in his opinion stood out as a four-alarm fire bell. But to fully appreciate its naked mendacity, we need first to remember this recent Trump tweet: “Big problems and discrepancies with Mail In Ballots all over the USA. Must have final total on November 3.” His tweet was predictably packed with lies – there are no “big problems and discrepancies” – because he’s trying to sow chaos and discredit voters who’ve sought to stay safe during his pandemic.
Enter Kavanaugh, echoing Don the Con:
Ballots postmarked at the last minute should not be counted, he wrote, because “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.”
First of all, there’s no “chaos” or “impropriety” when states count late-arriving ballots. This is done routinely – most notably because a lot of the late-arriving ballots “flow in” from members of military overseas. In the aftermath of the 2000 election, most notably, George W. Bush’s lawyers successfully persuaded Florida canvassing boards to count the ballots that were still arriving from far-flung military Floridians.
Kavanaugh, of all people, should know about that; he was a member of Bush’s legal time.
And, contrary to Kavanaugh’s Trumpist reasoning, counting the late-arriving ballots does not “flip” the election results. There’s nothing to “flip” if you’re counting all the valid ballots and honoring everyone’s right to vote. Kavanaugh was merely parroting Trump’s demagogic desire to declare victory on election night and decree that the slow counting of all mailed ballots is corrupt/bogus/fake. Hence Kavanaugh’s baseless reference to “suspicions of impropriety.”
But this was Kavanaugh’s most insipid sentence: “States also want to be able to definitively announce the results of the election on election night, or as soon as possible thereafter.”
Um, no, they do not. Because, by law, they do not.
Each state counts the votes for days or weeks before they officially certify a winning candidate. Texas, which may be tight this year, doesn’t officially certify until Dec. 3. Kavanaugh should review this chart; maybe he’d learn something. And perhaps he forgot that, in the 2000 Florida election overtime, when late-arriving military ballots were counted, the state didn’t certify Bush as the winner until Nov. 26.
It’s only Trump who wants to say that election night is definitive, because he’s banking on a red mirage from in-person voting. All Kavanaugh did was to dress up Trump’s craven Twitter feed in lofty legalese, doing his MAGA duty, as it were. It’s just what we would’ve expected – and will gird ourselves to expect in the voting rights rulings down the road.
But, believe it or not, there’s hope on the near-horizon. The national tally of early voters (in person as well as mailers) now exceeds a staggering 75 million, and, as Trump knows, the majority of those folks want him gone. Which is why robed apparatchiks like Kavanaugh are doing what they can to help. Still, their efforts might be for naught. The ’20 balloting wave – and the fervor to smash incipient authoritarianism – may be too high for Trump and his enablers to subsume.
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You might be interested in watching my online conversation yesterday with fellow political columnist Damon Linker. We talked for almost an hour about the upcoming election; his delvings into the mind of the Trump voter were particularly incisive. Check us out. Sponsored by the University of Pennsylvania’s Kelly Writers House.