Kavanaugh asked to correct opinion.
Vermont’s secretary of state formally asked Supreme Court Justice Brett Kavanaugh to correct an opinion he wrote Monday that mistakenly said Vermont had made no changes to its election rules due to the COVID-19 pandemic.
In a letter to the Supreme Court on Wednesday, Secretary of State Jim Condos explained that Vermont had, for the first time, sent mail-in ballots to every registered voter and also began counting votes earlier than in previous years.
In a Monday night order rejecting a Democratic bid to allow Wisconsin to count ballots returned up to six days after Election Day, Kavanaugh wrote a concurring opinion that cited Vermont as a state that hadn’t made changes to its “ordinary election rules.”
Kavanaugh wrote: “To be sure, in light of the pandemic, some state legislatures have exercised their Article I, §4, authority over elections and have changed their election rules for the November 2020 election. Of particular relevance here, a few States such as Mississippi no longer require that absentee ballots be received before election day. ... Other States such as Vermont, by contrast, have decided not to make changes to their ordinary election rules, including to the election- day deadline for receipt of absentee ballots.”
The variation, Kavanaugh said, “reflects our constitutional system of federalism.
Different state legislatures may make different choices.”
In his letter to the court, Condos said, “Vermont is not an accurate comparison for the assertion Justice Kavanaugh has made.”
The changes the state made, Condos said, meant Vermont did not have to change its Election Day deadline to receive mail-in ballots.
The Supreme Court’s public information office did not immediately return a request for comment Wednesday. Justices regularly correct written opinions, though there is no obligation to do so or to highlight those changes to the public.
K avanaugh’s concurr ing opinion in the Wisconsin case set the battle lines for how the Supreme Court should consider post- election lawsuits that could determine the outcome of the presidential race. The justice also suggested that state courts may not have the last word in interpreting state election rules and mirrored President Donald Trump’s language of desiring votes to be counted on Election Day, despite what will be a major backlog of mail-in ballots in key states.
States that require mail-in ballots to be returned by Election Day, Kavanaugh wrote, “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.”