Kavanaugh tweaks voting opinion after Vermont official asks for correction

WASHINGTON, DC - FEBRUARY 5: Supreme Court Justices Neil Gorsuch and Brett Kavanaugh attend the State of the Union address in the chamber of the U.S. House of Representatives at the U.S. Capitol Building on February 5, 2019 in Washington, DC. President Trump's second State of the Union address was postponed one week due to the partial government shutdown. (Photo by Doug Mills-Pool/Getty Images via CNN)

(CNN) — Supreme Court Justice Brett Kavanaugh on Wednesday night tweaked a line in his controversial opinion on Wisconsin mail-in voting this week, after he received criticism for incorrectly saying Vermont had not changed its election rules due to the Covid-19 pandemic.

It’s a rare public correction by a justice that comes as the court is facing multiple appeals on voting access and mail-in ballots in the days before the presidential election.

Kavanaugh’s error came Monday night, when the court rejected a Democratic bid to allow Wisconsin to count ballots returned up to six days after Election Day. Kavanaugh wrote a concurring opinion that cited Vermont as a state that hadn’t made changes to its “ordinary election rules.”

However, Vermont had made significant changes, Secretary of State Jim Condos said when he formally asked Kavanaugh in a letter on Wednesday to correct the concurring opinion.

Vermont, Condos explained, had for the first time sent mail-in ballots to every registered voter and also began counting votes earlier than in previous years. Those actions meant Vermont did not have to change its Election Day deadline to receive mail-in ballots, Condos said.

Kavanaugh was using Vermont as an example of a state exercising its ability to change — or not change — election rules and deadlines.

Kavanaugh wrote on Monday: “To be sure, in light of the pandemic, some state legislatures have exercised their Article I, §4, authority over elections and have changed their election rules for the November 2020 election. Of particular relevance here, a few States such as Mississippi no longer require that absentee ballots be received before election day. … Other 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.”

The variation, Kavanaugh said, “reflects our constitutional system of federalism. Different state legislatures may make different choices.”

Late Wednesday, without comment or explanation, Kavanaugh issued a revised opinion, changing the phrase “ordinary election rules” to “ordinary election-deadline rules.”

It 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 concurring opinion in the Wisconsin case set the battle lines for how the Supreme Court should consider post-election lawsuits that could determine the outcome of the presidential race. The justice also suggested that state courts may not have the last word in interpreting state election rules and mirrored President Donald Trump’s language about wanting votes to be counted on Election Day, despite what will be a major backlog of mail-in ballots in key states.

States that require mail-in ballots to be returned by Election Day, Kavanaugh wrote, “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.”


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