Even putting aside the question about the power of state legislatures, there are further reasons to worry about Kavanaugh, a veteran of the Bush side in Bush v. Gore, in any future election law dispute. He is usually a careful analyst of legal issues, but this election law opinion was sloppy, much like the unsigned opinion (that I suspect he also wrote) in the RNC v. DNC case about deadlines in Wisconsin’s April primary. Aside from misstating the holding in the Palm Beach case, Kavanaugh mischaracterized an article by professor Richard Pildes about whether deadlines should be extended for receipt of ballots in light of the pandemic. And he mischaracterized how absentee ballot counting works.
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. As a veteran of Bush v. Gore, Kavanaugh surely knows this; he may have even been involved in efforts in the weeks after the vote took place in Florida in 2000 to make sure that late-arriving military and overseas absentee ballots would be included in the state’s vote totals. The statement about vote totals this fall was unnecessary to his legal argument, and it served only to echo Trump’s false talking points about mail-in ballots.
The overall tenor of Kavanaugh’s opinion was not only dismissive of voting rights, but it also appeared to suggest that decisions to limit counting and enfranchisement are constitutionally mandated. If Barrett does not recuse herself from election disputes next month, there’s every reason to worry that a 5-4 court could interfere in the election to help Trump if a case that might swing the outcome gets before the court.