Kavanaugh corrects opinion in voting case following Vermont official’s objection

Supreme Court Justice Brett Kavanaugh on Wednesday tweaked an opinion he issued earlier this week after a Vermont official objected to how he characterized the state’s efforts to accommodate an increase in mail-in ballots amid the coronavirus pandemic. 

Kavanaugh issued the small correction just hours after Jim Condos, Vermont’s Democratic secretary of state, sent a letter to the high court criticizing his opinion. 

The justice, in a concurring opinion Monday, had cited Vermont as an example of a state that did not extend its deadline for mail-in ballots. The Supreme Court ruled 5-3 to reject Democrats’ efforts to allow ballots to be received up to six days after Election Day in Wisconsin. 

Kavanaugh, siding with the majority, pointed to Vermont as a state that had not changed its “ordinary election rules, including to the election-day deadline for receipt of absentee ballots.”

But Condos pointed out that the state had made significant changes to its election procedures to make it easier for voters to ensure their ballots are received by Nov. 3. Vermont had sent mail-in ballots to every voter and ordered elections officials to begin processing votes for the entire month leading up to the election.

“Since the state of Wisconsin neither changed its ordinary election rules this year to mail each of its active registered voters a ballot nor authorized its Local Election Officials to process ballots early, Vermont is not an accurate comparison for the assertion Justice Kavanaugh has made,” Condos wrote in his letter.

In the updated version of Kavanaugh’s opinion, the line in question now reads, “Other States such as Vermont, by contrast, have decided not to make changes to their ordinary election-deadline rules, including to the election-day deadline for receipt of absentee ballots.”

Kavanaugh’s opinion has come under significant criticism this week from Democrats and voting rights advocates, who accused him of promoting President Trump’s unfounded allegations that mail-in voting is especially vulnerable to fraud.

He wrote that states “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.” 

Justice Elena Kagan pushed back in a dissenting opinion and said that the court’s decision will “disenfranchise large numbers of responsible voters in the midst of hazardous pandemic conditions.”

“Justice Kavanaugh alleges that ‘suspicions of impropriety’ will result if ‘absentee ballots flow in after election day and potentially flip the results of an election,'” Kagan wrote. “But there are no results to ‘flip’ until all valid votes are counted. And nothing could be more ‘suspicio[us]’ or ‘improp[er]’ than refusing to tally votes once the clock strikes 12 on election night. To suggest otherwise, especially in these fractious times, is to disserve the electoral process.”