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Justice Brett Kavanaugh

Photo by Win McNamee/Getty Images via Ninian Reid

On Wednesday, Vermont Secretary of State Jim Condos took an extraordinary step to set the Supreme Court straight with a letter asking Justice Brett Kavanaugh to correct a recent opinion.

In a court decision on Monday that ruled against allowing ballots to be counted in Wisconsin after Election Day, Kavanaugh wrote a concurring opinion that incorrectly claimed Vermont had not changed its election rules for the unprecedented challenges facing the 2020 election, despite obvious evidence to the contrary.


"We have formally requested that #SCOTUS correct the erroneous claim by Justice Brett Kavanaugh that #VT has not changed voting procedures for the #2020Elections due to #COVID19. When it comes to issuing decisions on the voting rights of American citizens, facts matter," The Vermont Secretary of State's Office tweeted out Wednesday afternoon alongside a copy of the letter.

Beyond making false statements about Vermont's voter laws, Kavanaugh's concurrence in Monday's 5-3 ruling disenfranchising Wisconsin voters was riddled with sloppy explanations and errors, including a false description of how ballots are counted and a misinterpretation of the U.S. Postal Service's role in delivering ballots on time, according to analysis by the Washington Post.

"Though it is true that our office has made every effort to 'depart[] as little as possible from our voting traditions and our safe and secure voting processes while proactively ensuring that no vermonter has to choose between their health and their right to vote' (July 20,2020, directive), we did make two significant changes to our ordinary election rules in response to the pandemic--both authorized under Vermont law per acts 92 and 135 of the 2020 general assembly and neither requiring legislative approval," Condos wrote.

He went on to add: "Since the state of Wisconsin neither changed its ordinary election 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. I respectfully ask that the record is corrected to reflect that."

Despite the new supermajority of conservative Supreme Court justices solidified by Amy Coney Barrett's confirmation earlier this week, politicians continue to call out the hypocrisy of a pillar of government that can't keep its facts straight, even as it may soon play a decisive role in guiding the outcome of the presidential election.

On the heels of Condo's letter, Sen. Bernie Sanders (I-VT) and Sen. Amy Klobuchar (D-MN) released a statement of their own blasting both Donald Trump and Kavanaugh for their misrepresentation of election laws.

"In America, we count the votes to determine who wins an election. Despite the incorrect assertions from President Trump and Justice Kavanaugh, election officials across the country accept ballots well after Election Day every year, and results are not certified until the votes are counted and a canvas to confirm the results is conducted," the senators wrote. "Absentee ballots counted after election day do not 'flip the results of an election,' as Justice Kavanaugh claimed. They are the results of the election."

Warning of what Kavanaugh's ruling may portend in Slate, Mark Joseph Stern wrote, "the justice cast doubt on the legitimacy of many mail ballots and endorsed the most sinister component of Bush v. Gore. America's new median justice is not a friend to democracy, and we may pay the price for Barrett's confirmation in just eight days."

Published with permission of The American Independent Foundation.

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