Politics

Kavanaugh Fixes Error in Election Opinion After Vermont Complaint


Justice Brett M. 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.

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

In the opinion, which was issued on Monday and alarmed Democrats worried about mail ballots being counted, Justice Kavanaugh wrote that while 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 election-day deadline for receipt of absentee ballots,” he wrote in his original concurring opinion, which was attached to the 5-to-3 ruling against the deadline extension in Wisconsin.

The decision, issued just over a week before the presidential election, immediately drew intense scrutiny, and Justice 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, Mr. Condos noted.

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

Mr. 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.”

“Whether you like his principle or not, he actually tried to explain it and he also corrected it,” Professor Lazarus said.

During an ordinary court schedule, the justices and their clerks have more time to discuss cases and pore over the words in each opinion to prevent errors, said Allison Orr Larsen, a professor of law at William & Mary Law School.

Mistakes are “rare,” she said, “but it happens.”

The current pace “is not the way that they’re designed to function,” Professor Larsen said. “It’s not the way that any of them prefer to function. It’s high stakes and limited time and that’s never good for decision making.”



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