Justice Kavanaugh reiterates statements of allocation of power over elections in Andino v. Middleton opinion

In August, I highlighted a line from Justice Brett Kavanaugh’s dissenting opinion in the Calvary Chapel case in which he linked state decisions over handling the coronavirus, including elections. To requote his opinion:

I agree that courts should be very deferential to the States’ line-drawing in opening businesses and allowing certain activities during the pandemic. For example, courts should be extremely deferential to the States when considering a substantive due process claim by a secular business that it is being treated worse than another business. Cf. Jacobson v. Massachusetts, 197 U. S. 11, 25–28 (1905). Under the Constitution, state and local governments, not the federal courts, have the primary responsibility for addressing COVID–19 matters such as quarantine requirements, testing plans, mask mandates, phased reopenings, school closures, sports rules, adjustment of voting and election procedures, state court and correctional institution practices, and the like.

(Emphasis added.)

Justice Kavanaugh’s opinion concurring in the grant of the application for stay in Andino v. Middleton, concerning South Carolina’s signature witness requirement for ballots, gets at much the same thing. And he does so by linking deference to states on the coronavirus with election rules:

First, the Constitution “principally entrusts the safety and the health of the people to the politically accountable officials of the States.” South Bay United Pentecostal Church v. Newsom (2020) (ROBERTS, C. J., concurring in denial of application for injunctive relief). “When those officials ‘undertake[ ] to act in areas fraught with medical and scientific uncertainties,’ their latitude ‘must be especially broad.’” Ibid. It follows that a State legislature’s decision either to keep or to make changes to election rules to address COVID–19 ordinarily “should not be subject to second-guessing by an ‘unelected federal judiciary,’ which lacks the background, competence, and expertise to assess public health and is not accountable to the people.” South Bay (citing Garcia v. San Antonio Metropolitan Transit Authority (1985)). The District Court’s injunction contravened that principle.

(Cleaned up.)

Note that this opinion does not cite other election cases. It cites a free exercise case in South Bay United Pentecostal Church (specifically, Chief Justice John Roberts’s concurring opinion—despite the fact that Justice Kavanaugh would have granted the application in that case but here concurred in the denial.) Instead, it defers to state court judgments on matters relating to the coronavirus, even when a fundamental right is as stake—the right to vote, or the free exercise of religion.

It’s the second time in recent months Justice Kavanaugh has expressly linked this deference to the state legislative process over elections and the state legislative process over coronavirus regulations, and deference of the judiciary to the state legislative process. I’m sure it won’t be the last.