Bench Memos

Law & the Courts

Sloppy Shots at Kavanaugh’s Concurring Opinion in Wisconsin Election Case

Various folks on the Left are taking whacks at Justice Kavanaugh for what they claim are “sloppy” errors in his concurring opinion in the Court’s order on Monday regarding Wisconsin’s deadline for receipt of absentee ballots. But it’s their own criticisms that are sloppy.

Let’s take a look at law professor Richard Hasen’s complaints in this Washington Post op-ed:

1. Hasen takes issue with Kavanaugh’s “controversial theory” that (in Hasen’s paraphrase) “state legislatures have almost absolute power to set the manner for conducting presidential and congressional elections (subject to congressional override for congressional elections).” In so doing, he faults Kavanaugh for citing Bush v. Palm Beach County Canvassing Board (2000) “as standing for the proposition that state legislatures have this power—negating the power of state courts to expand voting rights under state constitutional provisions that protect the right to vote.” That case, he argues, “unanimously raised but did not resolve that question.” Hasen continues: “Kavanaugh further embraced this theory as advanced again by then-Chief Justice William H. Rehnquist in Bush v. Gore itself, but that was an opinion joined only by Justices Antonin Scalia and Clarence Thomas.”

Hasen offers a very confusing account of Kavanaugh’s citation of the two cases. Here is the relevant passage from footnote 1 of Kavanaugh’s opinion:

Article II expressly provides that the rules for Presidential elections are established by the States “in such Manner as the Legislature thereof may direct.” §1, cl. 2 (emphasis added). The text of Article II means that “the clearly expressed intent of the legislature must prevail” and that a state court may not depart from the state election code enacted by the legislature. Bush v. Gore, 531 U. S. 98, 120 (2000) (Rehnquist, C. J., concurring); see Bush v. Palm Beach County Canvassing Bd., 531 U. S. 70, 76–78 (2000) (per curiam); McPherson v. Blacker, 146 U. S. 1, 25 (1892). In a Presidential election, in other words, a state court’s “significant departure from the legislative scheme for appointing Presidential electors presents a federal constitutional question.” Bush v. Gore, 531 U. S., at 113 (Rehnquist, C. J., concurring). As Chief Justice Rehnquist explained in Bush v. Gore, the important federal judicial role in reviewing state-court decisions about state law in a federal Presidential election “does not imply a disrespect for state courts but rather a respect for the constitutionally prescribed role of state legislatures. To attach definitive weight to the pronouncement of a state court, when the very question at issue is whether the court has actually departed from the statutory meaning, would be to abdicate our responsibility to enforce the explicit requirements of Article II.” Id., at 115.

As you can see, Kavanaugh first quoted a passage from Chief Justice Rehnquist’s concurring opinion in Bush v. Gore. (Contrary to what Hasen’s readers might think, this wasn’t some “further” point, and Kavanaugh made explicit that he was citing a concurring opinion.) In that concurring opinion, Rehnquist refers specifically to Bush v. Palm Beach when he states: “But as we indicated in our remand of the earlier case, in a Presidential election the clearly expressed intent of the legislature must prevail.” In other words, Rehnquist is offering the same understanding of what the Court “indicated” in Bush v. Palm Beach as Kavanaugh is.

What’s more, while Hasen is correct that the unanimous opinion in Bush v. Palm Beach “did not resolve” the question of a state legislature’s power, Rehnquist and Kavanaugh are on very solid ground as to what it “indicated.” Here is a substantial excerpt from the pages that Kavanaugh cites:

As a general rule, this Court defers to a state court’s interpretation of a state statute. But in the case of a law enacted by a state legislature applicable not only to elections to state offices, but also to the selection of Presidential electors, the legislature is not acting solely under the authority given it by the people of the State, but by virtue of a direct grant of authority made under Art. II, § 1, cl. 2, of the United States Constitution….

Although we did not address the same question petitioner raises here, in McPherson v. Blacker, 146 U. S. 1, 25 (1892), we said:

“[Art. II, § 1, cl. 2,] does not read that the people or the citizens shall appoint, but that ‘each State shall’; and if the words ‘in such manner as the legislature thereof may direct,’ had been omitted, it would seem that the legislative power of appointment could not have been successfully questioned in the absence of any provision in the state constitution in that regard. Hence the insertion of those words, while operating as a limitation upon the State in respect of any attempt to circumscribe the legislative power, cannot be held to operate as a limitation on that power itself.”

There are expressions in the opinion of the Supreme Court of Florida that may be read to indicate that it construed the Florida Election Code without regard to the extent to which the Florida Constitution could, consistent with Art. II, § 1, cl. 2, “circumscribe the legislative power.”…

After reviewing the opinion of the Florida Supreme Court, we find “that there is considerable uncertainty as to the precise grounds for the decision.” [Citation omitted.] This is sufficient reason for us to decline at this time to review the federal questions asserted to be present.

In other words, the Court in Bush v. Palm Beach stated very clearly that it does not defer to a state court’s interpretation of a state law that applies to presidential elections; that in enacting such a law, a state legislature is acting “by virtue of a direct grant of authority made under Art. II, § 1, cl. 2, of the United States Constitution”; and that the language of that constitutional provision, per McPherson, “operat[es] as a limitation upon the State in respect of any attempt to circumscribe the legislative power.” The Court refrained from setting forth a holding on this basis only because the “precise grounds” for the Florida supreme court’s decision were unclear.

2. Hasen contends that Kavanaugh “mischaracterized an article by professor Richard Pildes about whether deadlines should be extended for receipt of ballots in light of the pandemic.” But Kavanaugh did not purport to characterize Pildes’s position. His lead-in to his quote of Pildes states merely: “The States are aware of the risks described by Professor Pildes.” He was, in other words, quoting Pildes only to describe those risks.

3. Hasen contends that “Kavanaugh suggested without evidence that there would be a problem if voting results were not final on election night and results of the election could ‘flip’ to another candidate, even though vote totals are never final on election night and require weeks to count.”

There are two errors here. First, Kavanaugh was setting forth a reason that many states require that absentee ballots be received by Election Day—namely, they “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.” He wasn’t offering his own assessment of a potential “problem,” so there would be no reason for him to offer evidence of such a problem. Second, under Hasen’s odd semantics, no ballots could ever “flip” the “results” of an election. But Kavanaugh is obviously using “flip” in its very ordinary sense to mean alter what the outcome would otherwise be.

While I’m at it: I see that another Kavanaugh critic, parroting Hasen’s errors, also contends that Kavanaugh is wrong to state that one reason that states require that absentee ballots be received by Election Day is that they “want to be able to definitively announce the results of the election on election night, or as soon as possible thereafter.” If that were a goal, the critic argues, they “would have permitted mail-in ballots that were received prior to Election day to be counted ahead of time, making the final count much more efficient.” But there are obvious reasons—avoiding leaks of early tallies, taking advantage of the efficiencies of counting ballots all at once—why states that want a quick count would not want early counting.


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