A visitor unaware of current events might have seen the crowd at Baltimore County’s Oregon Ridge Park and Lodge Tuesday afternoon and assumed someone was handing out free hand sanitizer or maybe even COVID-19 vaccinations. The parking lot outside the park’s lodge was nearly full. The line of people trying to get inside not only wended across the building, it circled the nearby playground. All were there for one purpose: to cast an early ballot. Such crowds have already become a familiar scene not only in Baltimore County, but across Maryland and the nation as record-breaking numbers of Americans have so far mailed in ballots or voted at early voting centers like the one in Oregon Ridge. The commitment and passion of people willing to wait in line — for hours at a time in some cases — to exercise their franchise in these difficult times is not just inspiring, it is nothing less than a stirring act of patriotism.
Now contrast that to the woeful opinion Justice Brett Kavanaugh handed down Monday in a case that is likely to diminish voter participation in the crucial swing state of Wisconsin. In a 5-3 ruling, the nation’s highest court upheld the suspension of a lower court’s decision that the state must count ballots received shortly after Election Day. As a result, Wisconsin election officials are now free to ignore such ballots, even if the fault lies entirely with the U.S. Postal Service and the envelopes have a Nov. 3 postmark. Thousands may be prevented from voting or, perversely, some who had planned to mail their ballots may instead opt to vote in-person, risking their lives and those of their neighbors in a state that has recently experienced a significant uptick in COVID-19 cases with an infection rate close to six times higher than comparably-sized Maryland.
But most alarming is Justice Kavanaugh’s sloppy and error-riddled reasoning. Justice Kavanaugh complains, for example, that states declare election winners on election night. Anyone who even casually follows elections knows that’s not always the case; in close races, it may take days or even weeks to get official results. He further observes that some states aren’t making accommodations for the pandemic and cited Vermont as an example. The problem? Vermont did change its rules, mailing out ballots to every registered voter, much as Maryland did during this year’s primary.
And that’s just the beginning. Justice Kavanaugh suggests mail-in ballots can’t be requested days before the election (some states allow it). He observes that federal courts can’t change voting rules (not true) and that it’s up to state legislatures alone (false again). He claims Wisconsin wants ballots counted by the end of election night, when state law actually prevents officials from even starting their count prior to Election Day.
“If the apparent winner the morning after the election ends up losing due to late-arriving ballots, charges of a rigged election could explode," he wrote. Whom does that sound like? If you said it’s a Trump talking point, well, give yourself credit.
We don’t doubt that Mr. Kavanaugh, with the attention given the allegations of past sexual misconduct that dogged his confirmation hearings, comes by his antagonism toward Democrats honestly. He’s clearly a fan of Bush v. Gore having served on George W. Bush’s legal team (along with John Roberts and newly-installed Justice Amy Coney Barrett). In that 20-year-old case, the conservative-tilting court would not even allow Florida to conduct a recount, which would have likely led to Al Gore’s election as president. The decision was damaging to the court’s reputation, and Justice Kavanaugh seems anxious to go there again. That he appears so poorly informed on voting rights and election methods is worrisome. That the nation’s even-more-conservative highest court is packed with Trump appointees, including one approved in lightning speed just eight days before the election (and unlikely to recuse herself from any election-related decision), is as discouraging to democracy as the early voting lines are heartening.
The Baltimore Sun editorial board — made up of Opinion Editor Tricia Bishop, Deputy Editor Andrea K. McDaniels and writer Peter Jensen — offers opinions and analysis on news and issues relevant to readers. It is separate from the newsroom.