Holy shit—Brett Kavanaugh just endorsed Rehnquist's concurrence in Bush v. Gore, which was too extreme for Kennedy or O'Connor.

This is a red alert. I can't believe he put it in a footnote. This is terrifying. https://assets.documentcloud.org/documents/7276432/10-26-20-DNC-v-Wisconsin-SCOTUS-Order.pdf

The headline news here is that, by a 5–3 vote, SCOTUS made it harder for Wisconsin residents to cast a ballot and make sure it's counted.

But arguably the bigger news is that Brett Kavanaugh endorsed a theory so radical that the court refused to adopt it in Bush v. Gore. My God.

This is VERY BAD NEWS for voting rights. Appallingly bad. Brett Kavanaugh used a footnote to throw his support behind an extreme theory that would severely limit state courts' ability to protect voting rights. It's the revenge of Bush. v. Gore. Actually, it's much worse.

How radical is Kavanaugh's theory? John Roberts felt compelled to reject it in a separate opinion, correctly noting that federal courts should keep their noses out of a state court's interpretation of its own state's election laws.

Roberts is now the moderate on voting rights.

Gorsuch also endorsed Rehnquist's position in Bush v. Gore. And Kavanaugh joined his opinion. Both want to prevent governors, state courts, and state agencies from expanding voting rights—and have federal courts decide what how the legislature *really* wanted elections to be run.

As fate would have it, I wrote about this exact issue in an article that published minutes before SCOTUS handed down this order. I urge you to read it, because this is the next fight. It's already here. We're staring down the barrel of Bush v. Gore II. https://slate.com/news-and-politics/2020/10/barrett-election-bush-v-gore-vengeance.html

We should be extremely worried that Kavanaugh would use this Trumpian rhetoric to describe counting ballots that arrive after Election Day. 18 states and DC count these ballots. Does Kavanaugh think that creates "chaos and suspicions of impropriety"? https://twitter.com/fordm/status/1320874597617668098

With Barrett's vote, the Supreme Court is poised to become a Supreme Board of Elections with freewheeling power to stomp on state courts that try to protect voting rights. What Kavanaugh and Gorsuch did tonight is a five-alarm fire for democracy. https://slate.com/news-and-politics/2020/10/barrett-election-bush-v-gore-vengeance.html