Justices Gorsuch and Kavanaugh Torch Federal District Court Judge

Justices Gorsuch and Kavanaugh Torch Federal District Court Judge

This article is authored by Mitch Nemeth

With the 2020 election less than one week away and early voting underway, politicians and activists groups are pulling out all of the tricks to increase voter turnout for their respective candidates. Last week, the Supreme Court denied an application for stay from Pennsylvania GOP lawmakers. In typical fashion, Republican-appointed Chief Justice John Roberts sided with the Democrat-appointed justices to allow Pennsylvania election officials to count mail-in-ballots received within three days of Election Day so long as the envelopes are postmarked before November 3rd. This week, a majority of the Supreme Court denied an application to vacate the stay in a Wisconsin election case.

In this case, Wisconsin voters asked the Supreme Court to reinstate COVID-19 accommodations that had been granted unilaterally by a Federal District Court. This controversy began with Wisconsin Democrats seeking special accommodations for this election. U.S. District Judge William Conley ordered “election officials to count all absentee ballots that are postmarked by Election Day and received by November 9th,” six days after Election Day. The critical controversy in this case is Judge Conley’s unilateral rewriting of state election laws. Wisconsin Republicans emphasized that the Supreme Court stands clear in its unwillingness to provide federal courts the ability to “re-write state election laws.” Even Chief Justice Roberts, generally a swing vote, concluded that Judge Conley’s order wrongly intruded in state lawmaking process. Justice Gorsuch along with Justice Kavanaugh concurred with the court’s decision and went on to scorch the Federal District Court.

Justice Gorsuch wrote, “Elections must end sometimes, a single deadline supplies clear notice, and requiring ballots be in by Election Day puts all voters on the same footing.” Gorsuch continued, “Because of the current pandemic, the court suggested, it was free to substitute its own election deadline for the State’s. Never mind that, in response to the pandemic, the Wisconsin Elections Commission decided to mail registered voters an absentee ballot application and return envelope over the summer, so no one had to ask for one. Never mind that voters have also been free to seek and return absentee ballots since September…Never mind that those unable to vote on Election Day have still other options in Wisconsin, like voting in-person during a 2-week voting period before Election Day.” This is a scathing indictment of Judge Conley’s overreach.

Justice Gorsuch went on to question why the judge limited the extended period by six days, “The judge in this case tacked 6 days onto the State’s election deadline, but what about 3 or 7 or 10, and what’s to stop different judges choosing…different deadlines in different jurisdictions.” Additionally, Gorsuch and Kavanaugh addressed the question of why the legislature is the appropriate body for creating election laws. “Democratic processes can prove frustrating. Because they cannot easily act without a broad social consensus, legislatures are often slow to respond and tepid when they do. The clamor for judges to sweep in and address emergent problems, and the temptation for individual judges to fill the void of perceived inactions, can be great. But what sometimes seems like a fault in the constitutional design was a feature to the framers, a means of ensuring that any changes to the status quo will not be made hastily, without careful deliberation, extensive consultation, and social consensus.”

In a separate concurring opinion, Justice Kavanaugh writes that States want absentee ballots to be received by Election Day “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 supporting his position, Kavanaugh cites a law review, “the ‘longer after Election Day any significant changes in vote totals take place, the greater the risk that the losing side will cry that the election has been stolen.’” His opinion separately indicates that the Federal District Court “changed the state election laws too close to the election.”

This opinion is critical in that it protects Wisconsin voters from judicial overreach and reverses federal intervention into state election matters. The reasoning demonstrated by Justices Gorsuch and Kavanaugh is indicative of the push by Senate Republicans and President Trump to ensure that courts follow the Constitution and statutes by the letter and spirit of the law. Nowhere in the Constitution is there an exception clause for global health pandemics, such as the COVID-19 Pandemic. Hopefully, this opinion resonates throughout the country and demonstrates to voters that their democratically elected legislators can overcome the decades-long push for a juristocracy.


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