Justice Brett M. Kavanaugh corrected an error on Wednesday in a notice issued in a Supreme Court ruling that banned Wisconsin from counting mail-in ballots that arrive after election day.
While not uncommon, such revisions are rare, experts said, adding that Judge Kavanaugh’s change highlighted the court’s rapid pace in handling recent voting rule challenges.
In the notice, released Monday and alarmed by Democrats worried about counting mail-in ballots, Judge Kavanaugh wrote that while some states had changed their voting rules in response to the pandemic, others had not. not done.
“States like Vermont, on the other hand, have decided not to change their ordinary voting rules, including the election day deadline for receiving mail ballots,” he wrote in his opinion. concurring initial, which was attached to the 5-to-3 decision against extending the time limit in Wisconsin.
The ruling, made just over a week before the presidential election, immediately attracted close scrutiny, and Judge Kavanaugh’s opinion prompted a complaint from Vermont Secretary of State Jim Condos. He pointed out that the state had in fact changed its rules to accommodate voters worried about showing up at polling stations during the pandemic.
On Wednesday, two days after the ruling, he wrote to Scott S. Harris, the court’s clerk, and said Vermont made two key changes this year: all active registered voters received a ballot and an envelope. prepaid, and elections. officials were allowed to begin processing ballots within 30 days of election day.
In contrast, Wisconsin had done neither, Mr. Condos noted.
“Vermont is not an exact comparison of Justice Kavanaugh’s claim,” he wrote in the letter.
Mr. Condos also posted a copy of the letter on Twitter saying, “When it comes to making decisions about the suffrage of American citizens, facts matter.”
As of Wednesday evening, the opinion was changed to say that Vermont and other states had changed their “election deadline” rules in response to the pandemic.
The Supreme Court began noting corrections and changes of opinion following a 2014 study that showed how, for years and without public notice, it had changed its rulings long after they were published, said Richard Lazarus, professor of law at Harvard University. author.
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During the 2019-2020 session, the court noted that it had amended errors or typos in written decisions about a half-dozen times, he said. The court generally renders several dozen decisions each quarter.
In this case, Professor Lazarus said, Judge Kavanaugh’s error was troubling as it revealed the rapid pace with which the court, days before a presidential election, is making decisions that have huge implications for the country.
“The mistake he made is not catastrophic and heartbreaking in nature, but it highlights the risk of writing quickly, not writing more deliberately and not taking time,” he said. .
In a statement, Mr. Condos, the Vermont Secretary of State, said he was glad Judge Kavanaugh corrected the mistake.
But, he said, “just adding one word is not enough.”
“The biggest problem with the concurring opinion of justice, and the majority opinion for the most part, is not the lack of the word ‘deadline’,” said Mr. Condos. “It’s the complete disrespect for the right to vote of American citizens.”
Wisconsin’s decision was one in a series of decisions made in response to emergency requests and election-related motions.
Democrats, civil rights groups and some legal scholars have been baffled by Justice Kavanaugh’s opinion that the election day mailing deadlines were designed “to avoid chaos and suspicion of irregularity that can ensue if thousands of missing ballots pour in after election day and potentially overturn the results of an election. “
Judge Elena Kagan responded in her dissent that “there is no result to ‘return’ until all valid votes have been counted.”
Mr. Condos said Judge Kavanaugh’s opinion and the ruling itself “repeat the misinformation that we as chief election officials fought all election season: that the votes cast on Election Day and arriving thereafter are not valid or are inferior to the votes. thrown in person. He added, “that’s just not true.”
Recent court decisions have been delivered swiftly, without full briefings or pleadings, in a process known as the “side role”.
When judges do not have time to exchange opinions and deliberate together, “they are more likely to make mistakes,” Professor Lazarus said.
Judge Kavanaugh appeared to be trying to take a leadership role by voicing his own opinion and explaining his decision making, he said.
“Whether you like his principle or not, he actually tried to explain it and he corrected it as well,” Professor Lazarus said.
During a regular schedule, judges and their clerks have more time to discuss cases and think through the words of each opinion to avoid errors, said Allison Orr Larsen, professor of law at William & Mary Law School.
Mistakes are “rare,” she said, “but it does happen.”
The current pace “is not the way they are designed to work,” Professor Larsen said. “It’s not the way any of them prefer to operate. These are high stakes and a limited time and it is never good for decision making. “