ELB Book Corner: Steve Vladeck: “The Most Troubling Side of the Shadow Docket”

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

ELB Book Corner

The subtitle of my new book on the Supreme Court’s “shadow docket,” which hits bookstores tomorrow, is deliberately provocative—promising to demonstrate “How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic.” Of course, the power-amassing features of the shadow docket are neither especially contested nor especially new; as Chapter 1 of the book recounts in detail, the rise of certiorari in the early 20th century reflected a deliberate effort by the Court’s champions, including Chief Justice William Howard Taft, to strengthen the Court by giving the Justices more control over their caseload—a project in which Congress may have acquiesced, but in which the Court repeatedly went further than it had promised the legislature it would. But the claim that the Court has used unsigned, unexplained orders in recent years “to undermine the republic” requires a bit more explication and defense. That’s the focus of Chapter 6 of the book—and of this post (and two subsequent posts) about the book for Election Law Blog’s “Book Corner,” which includes edited excerpts from the book. Today’s post focuses on the rise of the “Purcell principle”; tomorrow’s looks at how the Court’s inconsistent use of Purcell in the 2020 election cycle had the remarkable tendency to benefit Republicans at the expense of Democrats. And Wednesday’s post uses the 2022 redistricting cases to demonstrate how a pair of unsigned, unexplained orders may have helped to ensure Republican control of the House in the 118th Congress.

Part I: The Purcell Problem

            Readers of ELB are likely already familiar with Purcell v. Gonzalez—and the cryptic, unsigned majority opinion in a 2006 dispute, itself on the shadow docket, about a series of Arizona voter ID requirements. In a nutshell, Arizona had asked the Court to stay an injunction pending appeal that the Ninth Circuit had issued, which would have prevented the requirements from being used in the 2006 elections).

Rather than grant a stay, the Supreme Court treated Arizona’s application as a petition for certiorari, granted it, and summarily reversed the Ninth Circuit. The unsigned and cryptic majority opinion articulated a new and infamously subjective principle. At its simplest, the principle is that, to avoid confusion among voters and election administrators, courts should generally not change the rules governing elections as Election Day approaches, meaning that injunctions against even unlawful election rules are increasingly disfavored as Election Day draws near.

Purcell is not an argument against the power of lower courts to provide remedies for unlawful election laws; rather, it’s an argument against allowing injunctions of election laws to go into effect too close to elections. Although it’s directed toward district courts, Purcell is as much a principle for appellate courts to apply, to justify stays of district court injunctions issued too closely to an election, or, as the Supreme Court held the Ninth Circuit should have in Purcell, to justify staying their hand when district courts had, as well.

At first blush, that principle seems reasonable enough: court orders— especially competing court orders— changing the rules in the run-up to Election Day can easily cause chaos, risking not just the potential disenfranchisement of confused voters, but potential headaches for election officials tasked with administering an election and tallying results under shifting legal foundations. Indeed, perhaps the best defense of Purcell is that it was an attempt by the Supreme Court to introduce rigidity into an area in which the justices believed there was too much discretion— to tightly circumscribe the power of courts as Election Day approaches.

But in the seventeen years since Purcell was handed down, numerous problems have emerged with the principle it espoused. First, on its own terms, Purcell never explained when it’s “too close” to an election for courts to intervene. In Purcell itself, the Ninth Circuit injunction came thirty-three days before the Arizona election—far enough out to seemingly abate any confusion or concern (the Supreme Court’s decision, in contrast, came just eighteen days before the election). But if thirty-three days is too close, what about forty-three? Or sixty-three? Indeed, in a 2022 ruling we’ll come back to on Tuesday, the Court appeared to rely on Purcell to block a district court injunction handed down over nine months before the election— and twelve weeks before the primary (which, unlike the general election, could have been moved if necessary). Right off the bat, then, Purcell’s seeming nod toward a bright-line rule turns on the grayest of temporal considerations—inviting the very subjective decision-making from judges that the decision claimed it was trying to eliminate.

Second, although Purcell justified an election-specific rule for limiting the effects of injunctions by alluding to “considerations specific to election cases,” it never explained why such a rule was needed. Why wouldn’t the traditional standards for injunctions, and for stays of injunctions pending appeal, suffice? When a district court enters an injunction, whether that injunction should be stayed pending appeal depends upon a number of factors, including the harm that the parties might suffer from a ruling in either direction and how the public interest is impacted either way. Those traditional factors are supposed to be “balanced,” an invitation to courts to assess which harm is worse: the harm to plaintiffs, for example, of having to comply with potentially unlawful voting rules, or the harm to everyone else of blocking those rules on the eve of the election. Thus, even before Purcell, the argument for staying an eleventh-hour injunction that would have wreaked havoc on a state’s election procedures would have been powerful, even if the plaintiffs’ challenge to those procedures was strong. Likewise, a pre-Purcell analysis would have focused on the actual likelihood that a specific law or court order blocking it would cause voter confusion, rather than the more general presumption the Supreme Court articulated in Purcell—that all late changes to election rules will confuse voters.

But the flip side of this coin is even more troubling: by departing from the traditional standard, Purcell removes from the equation the possibility that, as disruptive as an injunction might be, freezing (or not issuing) it would be worse. For example, say a new state election rule would unlawfully prevent 20 percent of registered voters from actually voting, but that barring the new rule from taking effect would entail the risk that some minority of the remaining voters might be confused on Election Day. The chance of some voters being confused hardly justifies allowing widespread disenfranchisement. Under Purcell, though, that analysis becomes irrelevant, even if the plaintiffs’ challenge to the new election rule is very likely to succeed.

Finally, and exacerbating all of these concerns, Purcell was itself a shadow docket decision—decided on a compressed schedule, with no argument, and with no advance indication to the parties or anyone else that the Court was going to treat Arizona’s emergency application as an opportunity to fundamentally rewrite judicial procedure in election cases. Its thinly reasoned analysis spans just over two pages. One would think, if the justices wanted to dramatically change the nature of judicial review in election cases, that they would have done so a bit more publicly, and in a more comprehensive opinion.

For all of these reasons (and others), Purcell has been roundly and repeatedly criticized by election law scholars. ELB’s Rick Hasen has written that it was both “overdetermined and undertheorized.” University of Wisconsin professor Dan Tokaji suggested that the Court’s analysis could “charitably be described as careless.” And Brooklyn Law School’s Wilfred Codrington III has been perhaps the most unsparing in his analysis, describing the decision as a “charade,” and dismissing the Court’s reasoning as “vacuous, self- contradictory, amorphous, and more prone to aggrandizing election-related concerns— including those that the Supreme Court suggested it should mitigate.”

Many of these flaws were apparent from the get-go. But the most troubling uses of Purcell—and the shadow docket, more generally—came into especial focus in the flood of emergency applications arising out of changes to election law (or refusals to change election laws) in the 2020 election cycle in response to the COVID pandemic. That’s where we’ll pick the story up tomorrow.

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