Kavanaugh’s Opinion and the Threat of Post-Election Day Chaos

Raleigh, N.C. — Last night, Supreme Court Justice Brett Kavanaugh succinctly captured the essence of the problem with unelected state panels or judges changing laws passed by a state legislature to govern an election.

Justice Kavanaugh writes: “For important reasons, most States, including Wisconsin, require absentee ballots to be received by election day, not just mailed by election day. Those States 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…

“The States are aware of the risks described by Professor Pildes: ‘[L]ate-arriving ballots open up one of the greatest risks of what might, in our era of hyperpolarized political parties and existential politics, destabilize the election result. If the apparent winner the morning after the election ends up losing due to late-arriving ballots, charges of a rigged election could explode.’”

The laws enacted by North Carolina’s legislature are actually looser than Wisconsin’s: In North Carolina, ballots mailed by Election Day and received up to three days later are counted.

Bipartisan supermajorities in the legislature decided on the law governing this election months before balloting began.

Yet unelected bureaucrats on a state panel controlled by one political party decided to violate state law and extend the ballot receipt deadline to nine days after the election.

That’s a recipe for disaster, and as federal judges have already noted in this case, “would cause intolerable chaos.”

The suspicions wrought by the Board of Elections’ unacceptable mid-election rewrite of state laws are plain to any observer.

Why did Gov. Roy Cooper fight so vigorously through the courts to obtain full partisan control of the elections machinery of this state?

Why did Democratic Attorney General Josh Stein negotiate in secret with Democratic Party super-lawyer Marc Elias to change the rules after ballots had already been cast?

Why won’t Attorney General Stein release any of the public records surrounding his secret negotiations?

Did the Democrats on the Board of Elections and Attorney General Stein see something in the elections return data that compelled them to change state law after ballots had already been cast?

Why is the Attorney General fighting so hard, despite unprecedented rebukes from federal judges for his misleading and contradictory representations to the court, to change the rules governing his own election?

Making matters worse, it appears that some county boards of elections are still violating the spirit of the witness requirement by effectively allowing voters to witness their own ballots.



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