Vermont Secretary of State Jim Condos (D) formally requested, via a letter to the clerk of the Supreme Court, that a Justice Brett Kavanaugh opinion that mischaracterized the state’s plans for the election be corrected.
In his concurrence explaining why he was voting in favor of a requirement that Wisconsin absentee ballots be received by Election Day, Kavanuagh argued that courts should defer to state legislatures when it came to adjusting election rules for the pandemic.
Kavanaugh pointed specifically to Vermont as a state that has “decided not to make changes to their ordinary election rules, including to the election-day deadline for receipt of absentee ballots.”
That assertion was wrong, as Condos’ letter Wednesday pointed out. Vermont made two major changes, because of the pandemic, to how it was handling the election. Its legislature approved the proactive sending of mail ballots to all active registered voters. And Condos additionally okayed a policy that will allow local election officials to begin processing absentee ballots 30 days before the election.
“These two actions factored significantly in our decision to hold to existing law requiring the election day receipt of mailed ballots rather than extending returns beyond election day based on postmark,” Condos said.
Beyond just noting the factual error, Condos’ letter argued that the election changes that Vermont embraced made it a poor comparison point for Wisconsin, where the legislature has pointedly refused to let the processing of absentee ballots begin earlier or pass other laws that would help absentee voters get their ballots in sooner.
(Another argument Kavanaugh made in the concurrence is that states were justified in adopting policies that would provide a quick turnaround of results; Wisconsin’s refusal to move back its processing timeline undercuts that point).
“Since the state of Wisconsin neither changed its ordinary elections rules this year to mail each of its active registered voters a ballot nor authorized its Local Election Officials to process ballots early, Vermont is not an accurate comparison for the assertion Justice Kavanaugh has made,” Condos said. “I respectfully ask that the record is corrected to reflect that.”
Read the letter below:
