Public Backlash Just Forced Brett Kavanaugh to Retract His Incorrect Supreme Court Opinion on Mail-In Voting

Supreme Court Justice Brett Kavanaugh amended his opinion on why Wisconsin should not be allowed to extend its mail-in voting deadline, having joined the Court’s four other conservative justices on Monday striking down The Badger State’s effort to give voters additional time to submit their ballots.

Photo by Win McNamee/Getty Images

In his original opinion, Kavanaugh incorrectly claimed that Vermont “decided not to make changes to their ordinary election rules, including to the Election Day deadline for receipt of absentee ballots” to justify denying Wisconsin the opportunity to extend its mail-in voting deadline past Election Day.

Vermont’s Secretary of State Jim Condos sent a letter to the Supreme Court on Wednesday requesting that the record be corrected to reflect how his state conducts its elections.

On Wednesday night, Kavanaugh corrected his mistake, although it did not undo the Court’s Monday decision denying Wisconsin a mail-in voting extension.

Vermont “decided not to make changes to their ordinary election-deadline rules,” the opinion now says.

Afterward, Condos said in a statement that while he appreciates Kavanaugh’s correction, he remains infuriated that the Court chose to meddle in state election laws:

Justice Kavanaugh simply got this wrong. I’m glad he admitted a mistake and modified his opinion, but a one-word addition doesn’t go far enough. I will not sit idly by while Justice Kavanaugh uses factually incorrect information about the Green Mountain State as cover to erode voting rights in the middle of a pandemic-distressed election,” Condos wrote.

The opinion still misrepresents the significant changes we made here in Vermont to ensure every vote counts in the middle of a global pandemic, so that no voter has to choose between their health and their right to vote:

  • We mailed every active registered voter a ballot as early as possible (by Oct. 1);
  • We prepaid the return envelope;
  • We engaged in extensive outreach to ensure Vermont voters knew their voting options;
  • We enabled curbside and outdoor voting; and
  • We allowed clerks to start securely and confidentially processing ballots 30 days in advance of election day to avoid any last-minute influx of ballots.

That is why we did not move our election day deadline for the return of ballots.

The Supreme Court should not be dictating how states conduct elections, especially during a pandemic, because in-person voting is not a safe option for millions of people, Condos said:

Let’s not forget, we are in the middle of an unprecedented election season during a global pandemic and public health crisis. COVID-19 cases are spiking everywhere. The demand for absentee voting is rapidly growing and is already at record levels. The post office is having trouble delivering the mail on time. Election officials are struggling to manage the overwhelming number of late requests and returns.

Even still, in the face of all of this, the Court is trying to make it harder to vote. Let me be clear: the larger problem with the Justice’s concurring opinion, and the majority opinion largely, is not the absence of the word “deadline,” it is the total lack of regard for the voting rights of American citizens.

This Supreme Court decision repeats the misinformation we, as Chief Elections Officials, have been fighting against all election season: that votes cast on election day and arriving afterward are somehow not valid or are lesser than votes cast in person. That is simply not true.

This is how elections have worked for decades. In many states, it is normal for absentee votes to arrive after election day. This is particularly common for our overseas and military voters. Red states and blue state across this country allow it so that every vote can be counted, within reason.

The crux of the issue is making sure every vote counts:

In a democracy, we count every single legitimate vote cast by an eligible voter. Period. We want free, fair, and accurate election results that people can trust – that takes time. We have NEVER had official results on election night and in close races it is not unusual to have to wait days or even weeks for the final, careful, official outcome – and that’s okay. This is the highest court in the land and arguably the most important right we have in the right to vote. We should expect, and demand, more. We have enough work on our hands combatting foreign disinformation attacks on our democratic process, all done in an attempt to weaken voter confidence in the integrity of our elections. We should not need to do the same with our own Supreme Court Justices or President. We need precision, we need brilliant legal analysis, and, at the very least, we need to get the facts right. The credibility of this court is at stake and our voting rights are hanging in the balance. America’s democracy is stronger if more eligible voters actually vote. Facts matter.

Five days to go.

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