I am pleased to welcome to ELB Book Corner Steve Vladeck, author of the new book, The Shadow Docket. Here is the last of three posts:

After introducing Purcell and how the Court used it inconsistently in the 2020 election cycle in ways that tended to favor Republicans and disfavor Democrats, Chapter 6 of my new book on the shadow docket turns to a pair of unsigned, unexplained decisions handed down in 2022 redistricting cases—and makes the case that here, as much as in any other set of shadow docket rulings, the Supreme Court’s behavior was undermining the republic (a charge leveled in the book’s subtitle), with hard-to-defend (and undefended) rulings that may well have altered which party currently controls the House of Representatives. It’s not a charge the book makes lightly, but the evidence is … significant.

When Alabama redrew its seven US House districts following the 2020 Census, the map included only one district where Black voters would form a majority, even though 27 percent of the state’s total population in the 2020 Census identified as Black. On November 4, 2021—the same day the map was signed into law by Governor Kay Ivey—a group of plaintiffs brought suit, arguing that the state had impermissibly engaged in “vote dilution” in violation of the Voting Rights Act. The suit was assigned to a special three-judge district court that featured two Trump- appointed district judges and the Clinton-appointed Eleventh Circuit judge Stanley Marcus.

On January 24, 2022, the three judges unanimously sided with the challengers. After a seven-day hearing featuring live testimony from seventeen witnesses, the court concluded that the plaintiffs had made out their case for a violation of the Voting Rights Act under the Supreme Court’s 1986 ruling in Thornburg v. Gingles—and that Alabama should have drawn a second “majority-minority” district. Noting that there was still plenty of time for the state to try again before the map needed to be finalized for the 2022 primary and general elections (it had taken less than a week to draw the unlawful map), the court ordered Alabama to redraw its map to include a second “majority-minority” district. That district would almost certainly create a second Democratic seat within Alabama’s 6–1 Republican House delegation.

Alabama appealed the ruling (and a separate one from a single district judge), but also asked the Court to stay both injunctions pending those appeals, to allow the unlawful map to be used for the 2022 midterms. On February 7, the Court agreed. There was no majority opinion, but a concurring opinion by Justice Kavanaugh, joined by Justice Alito, rested heavily on Purcell. Now promoting the Purcell principle to “a bedrock tenet of election law” (emphasis mine), Kavanaugh wrote that, “when an election is close at hand, the rules of the road must be clear and settled.” Thus, even though the district court injunction had specifically left it to the state to redraw its map in time for the 2022 midterm cycle (and had concluded that there was plenty of time for the state to comply), Kavanaugh complained that the district court was “swoop[ing] in and re-do[ing]” Alabama’s laws “in the period close to an election.”

There’s just one problem with Kavanaugh’s Purcell analysis: It makes no sense. The district court decision (which Kavanaugh referred to as a “late-breaking injunction”) came on January 24, more than nine months before the 2022 congressional election. And even if the Alabama primary was the relevant deadline, that election wasn’t until May 24, still four months away. Moreover, the challengers in the Alabama case had filed suit on the very day that the map had been adopted—the earliest possible moment for such legal action under the Supreme Court’s own precedents. Thus, Kavanaugh’s Purcell analysis effectively suggested that there was nothing the district court could have done to stop Alabama from using an unlawful map for at least one election cycle. Like the principle of tort law that “every dog gets one free bite,” every state would get one free election cycle using unlawful district maps every ten years.

I am pleased to welcome to ELB Book Corner Steve Vladeck, author of the new book, The Shadow Docket. Here is the second of three posts:

Yesterday’s post introduced the discussion of election cases in my new book on the shadow docket (out today!) by focusing on the significant and subjective ways in which the “Purcell principle” pushed courts to depart from regular equities-balancing analysis in election-related litigation as Election Day drew near. ELB’s Rick Hasen and others have written in detail about how this played out in cases throughout the 2010s, but perhaps the clearest crystallization of Purcell’s subjectivity—and how the Supreme Court’s use of it tended to favor Republicans and hurt Democrats—came in cases arising out of the 2020 election, and efforts to either change (or challenge local and state governments’ refusals to change) voting rules in response to the COVID pandemic.

It started with Wisconsin. Early in the pandemic, with COVID cases exploding across Wisconsin (and long before any vaccine was available), a federal district court in Madison ordered the state, among other things, to extend the deadline for receiving mail-in ballots for the state’s 2020 spring election, which included the 2020 presidential primaries plus contests for a seat on the Wisconsin Supreme Court, three seats on the intermediate state court of appeals, and several thousand other positions. Because of delays by the state in processing the record number of applications for mail-in ballots, and by the US Postal Service in delivering those ballots to voters, the district court held that a number of voters who had requested mail-in ballots in a timely fashion risked being disenfranchised through no fault of their own. Thus, the court ordered the state not only to extend the deadline for when mail-in ballots needed to be received (to six days after Election Day), but also to extend the mailing deadline, such that every mail-in ballot received by that date should be counted, even if they were mailed the day after the election.

The Seventh Circuit stayed part of the injunction but left the extension of both the mailing and receipt deadlines intact. The Supreme Court, in an unsigned, 5–4 ruling, put the original mailing deadline back into effect. Although the Court went out of its way to take no position on the merits (a punt made possible only by Purcell, since the merits would be one factor under “normal” stay analysis), it invoked Purcell for the proposition that “this Court has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election.”

But as Justice Ginsburg pointed out in her dissent on behalf of all four Democratic appointees, invoking Purcell in this context was more than a little ironic. The district court ruling extending the postmark deadline for mail-in ballots posed little risk of voter confusion, since uninformed voters would just return their ballots earlier. The Supreme Court’s own ruling was instead the one that risked creating confusion. After all, one day before the election, it was the justices themselves who had moved the postmark deadline back up to Election Day. Worse still, Ginsburg wrote, the tens of thousands of Wisconsin voters who still had not even received their mail- in ballots would now be forced to vote in person, even as COVID cases were increasing dramatically both within the state and nationwide. Under any conventional balancing of the equities, the Supreme Court should (and would) have stayed its hand. Under Purcell, it could—and did—ignore those powerful, countervailing considerations.

The inconsistency pervading the Court’s approach to Purcell was made even clearer three months later in a case arising out of Florida. In 2018, Florida voters had amended the state constitution to restore the right to vote to convicted felons who had fully served their sentences, an amendment that would re-enfranchise as many as one million voters. Florida’s Republican- controlled political branches vehemently opposed the amendment; because the population to whom it applied was overwhelmingly poor and nonwhite, the widespread assumption was that it would favor Democrats. Thus, the governor and state legislature interpreted the amendment as only applying to those released felons who had also cleared all outstanding fines, fees, and restitution, even if they could not afford to do so, or even if, as was usually the case, Florida wasn’t sure how much they even owed, because of faulty recordkeeping or a lack of clarity in the underlying judgments. When those interpretations of the felon re-enfranchisement amendment were challenged in 2019, a federal district court temporarily blocked them, holding that they were likely unconstitutional violations of due process (because many convicted felons did not and could not know how much they owed); equal protection (because they imposed a wealth barrier to voting); and the Twenty-Fourth Amendment (which prohibits poll taxes). In May 2020, the district court issued a final judgment after an eight-day trial, striking down the pay-to-vote requirements.