In an Alabama voting case in 2022, Justice Brett Kavanaugh wrote a concurring opinion attempting to justify a decision by the Supreme Court’s Republican-appointed majority. Now, just ahead of Election Day, a Georgia judge cited that Kavanaugh opinion in blocking a right-wing bid to have 2024 ballots hand-counted.
“This election season is fraught; memories of January 6 have not faded away, regardless of one’s view of that date’s fame or infamy,” Judge Robert McBurney wrote in his order Tuesday. “Anything that adds uncertainty and disorder to the electoral process disserves the public.”
McBurney’s order paused the so-called Hand Count Rule passed by the Donald Trump-backed Republican majority of the Georgia State Election Board. The rule, which Democrats have said is an effort to delay or sow doubt about November’s election results, had been set to go into effect on Oct. 22.
“Perhaps for a subsequent election,” the state trial judge wrote of the hand-count rule, “after the Secretary of State’s Office and the 150+ local election boards have time to prepare, budget, and train — but not for this one.”
McBurney then quoted from the Trump appointee’s 2022 opinion (which Justice Samuel Alito joined), putting in brackets the Hand Count Rule to illustrate the point:
[S]tate and local election officials need substantial time to plan for elections. Running elections state-wide is extraordinarily complicated and difficult. Those elections require enormous advance preparations by state and local officials and pose significant logistical challenges. [Implementing the Hand Count Rule] would require heroic efforts by those state and local authorities in the next few weeks— and even heroic efforts likely would not be enough to avoid chaos and confusion.
McBurney concluded that “Because the Hand Count Rule is too much, too late, its enforcement is hereby enjoined while the Court considers the merits” of the case.The Atlanta Journal-Constitution reported that “Without the hand count, voters can expect results to come in faster on election night than if they had to wait for poll workers to manually count ballots.” It was the second recent ruling from McBurney rejecting potential election chaos sparked by Trump-backed Republicans, after making clear that certifying election results is mandatory. But while Kavanaugh made a chaos-blocking cameo in this case, the full extent of the high court’s involvement in this election remains to be seen. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in Donald Trump’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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