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Kavanaugh’s Bush v. Gore citation draws scrutiny ahead of another divisive election

Justice Brett M. Kavanaugh referred to the 2000 decision in explaining how he voted in a Wisconsin ballot case. (Jabin Botsford/The Washington Post)

The Supreme Court’s decision in the latest battle over how to count the vote in the battleground state of Wisconsin was not particularly surprising.

The return of Bush v. Gore was.

Justice Brett M. Kavanaugh cited the case and another from the 2000 recount of the presidential vote in his explanation of why he voted to deny a request to reinstate an extension for the receipt of mail-in ballots in Wisconsin.

It was triggering for Democrats and voting rights activists.

“It’s not every day we see a member of the Supreme Court citing Bush v. Gore,” said Sherrilyn Ifill, president of the NAACP Legal Defense and Educational Fund.

Indeed, the Supreme Court has never cited it as precedent in the two decades since, and only one other justice, Clarence Thomas, has even mentioned it in an opinion.

Supreme Court rejects extension of mail-in ballot deadline in Wisconsin

The case has become shorthand for what the Supreme Court would like to avoid: a central role in the drawn-out recount of the vote in Florida that eventually handed the presidency to George W. Bush and divided the nation.

Kavanaugh referred to the case and one that preceded it in the Florida recount to bolster the proposition that legislatures play the most important role in setting the rules of an election, and that actions by other actors, such as federal and even state courts, are to be carefully watched.

But to some it felt uncomfortably close to the idea that the Supreme Court might play a starring role in deciding the contest between President Trump and his Democratic challenger, former vice president Joe Biden.

Many observers think there’s only a remote chance of that, but there is no doubt that the court is increasingly drawn into partisan battles over election procedures, sparked by accommodations that have been made for voting amid a pandemic.

The court is currently considering a case from North Carolina that raises similar issues about the increased demand for absentee voting and the ability of the U.S. Postal Service to deliver the ballots on time. Republicans in Pennsylvania have cited Bush v. Gore in asking the court to reconsider an extension on ballot receipt in that state.

In her first day on the job, the controversy has reached new Justice Amy Coney Barrett. Although she has not said if she will participate in the court’s reconsideration of the Pennsylvania request, lawyers for one of the commonwealth’s counties asked her to recuse.

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“It is clear that the present motion comes at an inopportune time for Justice Barrett, this being her first day as an associate justice,” said the motion filed by lawyers for Luzerne County, in northeast Pennsylvania. But “Justice Barrett’s participation could be catastrophic to the delicate foundation of integrity and public confidence upon which the judiciary sits.”

Justices make their own decisions on recusals.

The tension has been heightened by Trump’s comments that a replacement for the late Justice Ruth Bader Ginsburg was needed on the court to break ties that might arise from election litigation.

And Trump continued to suggest Tuesday that it would be unlawful for states to count mail-in ballots received after Election Day, which it is not.

“It would be very, very proper and very nice if a winner were declared on Nov. 3 instead of counting ballots for two weeks, which is totally inappropriate, and I don’t believe that that’s by our laws,” Trump told reporters as he left the White House to hit the campaign trail.

And in a tweet Monday that Twitter labeled as potentially misleading, the president said, “Big problems and discrepancies with Mail In Ballots all over the USA. Must have final total on November 3rd.”

Though some states count only ballots that arrive by Election Day, about 20 count those that are postmarked by Election Day and arrive within a specified time frame.

Who gets to make those decisions has been at the center of the cases that have reached the Supreme Court on emergency petitions.

The result so far is that the court’s majority conservative justices have refused to uphold decisions by federal judges that force the issue. Those judges have told states to extend the receipt period because of the crush of absentee ballot requests brought on by worries about the safety of in-person voting during the pandemic and the inability of the Postal Service to guarantee properly mailed ballots will be received on time.

Chief Justice John G. Roberts Jr., commenting in the Wisconsin case, said there was a difference between intervention from federal judges, which he opposes, and changes made by state courts looking at state law.

Kavanaugh cited Bush v. Gore and a related case, Bush v. Palm Beach County Canvassing Board, to argue that state courts are not beyond the Supreme Court’s reach either.

“As Chief Justice [William H.] Rehnquist explained in Bush v. Gore, the important federal judicial role in reviewing state-court decisions about state law in a federal Presidential election ‘does not imply a disrespect for state courts but rather a respect for the constitutionally prescribed role of state legislatures,’ ” Kavanaugh noted in a footnote.

But Rehnquist’s was not the opinion of the court in the case; it was from a concurring opinion joined by only two other justices. And Justin Levitt, an election law specialist at Loyola Law School in Los Angeles, disputed that the Palm Beach decision settled the question of oversight of state courts, rather than simply raising it.

The issue could be important in North Carolina and Pennsylvania, where partisan elected supreme courts lean Democratic and the legislatures are controlled by Republicans.

Similarly, Kavanaugh’s solo opinion in the Wisconsin case has drawn criticism from liberals for comments that seemed to reflect Trump’s criticisms about quick vote-counting.

“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,” he wrote. “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.”

That drew a sharp rebuke from Justice Elena Kagan, who wrote the dissent for the court’s liberals.

“There are no results to ‘flip’ until all valid votes are counted,” she wrote. “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.”