Kavanaugh fixes error in election opinion after complaint from Vermont

Justice Brett Kavanaugh on Wednesday corrected an error in an opinion issued as part of a Supreme Court ruling that barred Wisconsin from counting mail- in ballots that arrive after Election Day.

Although not unheard- of, such revisions are rare, experts said, adding that Kavanaugh’s change highlighted the court’s fast pace in handling recent challenges to voting rules.

In the opinion, which was issued Monday and alarmed Democrats worried about mail ballots being counted, Kavanaugh wrote that although some states had changed their rules around voting in response to the pandemic, others had not.

“States such as Vermont, by contrast, have decided not to make changes to their ordinary election rules, including to the electionday deadline for receipt of absentee ballots,” he wrote in his original concurring opinion, which was attached to the 5- 3 ruling against the deadline extension in Wisconsin.

The decision, issued just over a week before the election, drew intense scrutiny, and Kavanaugh’s opinion prompted a complaint from Vermont’s secretary of state, Jim Condos. He pointed out that the state had, in fact, changed its rules to accommodate voters worried about showing up to polling stations during the pandemic.

On Wednesday, two days after the ruling, he wrote to Scott S. Harris, the clerk of the court, and said Vermont had made two key changes this year: All active, registered voters had received a ballot and a prepaid envelope, and election officials were authorized to start processing the ballots in the 30 days leading up to Election Day.

By contrast, Wisconsin had done neither, Condos noted.

“Vermont is not an accurate comparison for the assertion Justice Kavanaugh has made,” he wrote in the letter.

Condos also posted a copy of the letter to Twitter saying, “When it comes to issuing decisions on the voting rights of American citizens, facts matter.”

By Wednesday evening, the opinion had been changed to read that Vermont and other states had changed their “election deadline” rules in response to the pandemic.

The Supreme Court began noting corrections and changes in opinions after a 2014 study that showed how, for years and without public notice, it had been altering its decisions long after they were issued, said Richard Lazarus, a law professor at Harvard University and the study’s author.

During the 2019- 20 session, the court noted it had changed errors in written decisions about half a dozen times, he said. The court typically issues several dozen decisions each term.

In this case, Lazarus said, Kavanaugh’s error was troubling because it revealed the rapid- fire pace with which the court, days before a presidential election, is making decisions that have enormous implications for the country.