“The Constitution provides that state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules,” Justice Gorsuch wrote on Monday, in a concurring opinion in a 5-to-3 ruling that refused to revive a federal judge’s order that would have extended the deadline for receiving absentee ballots in Wisconsin.
That leaves Justice Kavanaugh. He joined Justice Gorsuch’s opinion in the Wisconsin case and wrote his own concurring opinion, one that has attracted considerable attention for echoing the president’s criticism of mail-in voting, for its citation of Bush v. Gore and for a factual error about voting procedures in Vermont that he corrected on Wednesday.
In his opinion in the Wisconsin case, Justice Kavanaugh devoted a long footnote to the central role state legislatures play in setting election rules. “The Constitution,” he wrote, “requires federal courts to ensure that state courts do not rewrite state election laws.”
Similarly, Justice Kavanaugh voted with the three-member conservative bloc last week when the court deadlocked over whether to block a three-day extension of the deadline for receiving absentee ballots in Pennsylvania, which left a ruling from the state’s highest court ordering the extension in place. Neither side gave reasons, but Justice Kavanaugh’s side seemed prepared to override the state court in favor of the state legislature.
Yet on Wednesday, when the court issued two sets of orders at least temporarily aiding Democrats in Pennsylvania and North Carolina, Justice Kavanaugh was silent even as the three-member conservative bloc objected. One order refused a plea from Pennsylvania Republicans to put their second challenge to the three-day extension on an extraordinarily fast track that could have yielded a decision before Election Day.
Justice Alito, joined by Justices Thomas and Gorsuch, echoed what Justice Kavanaugh had written just two days earlier in the Wisconsin case.
“The provisions of the Federal Constitution conferring on state legislatures, not state courts, the authority to make rules governing federal elections would be meaningless,” Justice Alito wrote, “if a state court could override the rules adopted by the legislature simply by claiming that a state constitutional provision gave the courts the authority to make whatever rules it thought appropriate for the conduct of a fair election.”