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.
On July 1, 2020, the Eleventh Circuit, which had previously refused to stay the district court’s preliminary injunction, stayed the district court’s permanent injunction. With the voter-registration deadline only nineteen days away, the court of appeals changed the rules that had been in effect since the previous summer while offering no explanation as to why it was doing so. The plaintiffs then asked the Supreme Court to lift the court of appeals’ stay by invoking Purcell, arguing that the Eleventh Circuit had changed the rules for an election on the eve of the relevant deadline, and had failed to either justify its ruling or explain why the district court ruling that it blocked was wrong. Under any reading of Purcell, this should’ve been an easy case for vacating the stay.
Instead, in a one-sentence order, the Supreme Court denied the application. Justice Sotomayor, joined by Justices Ginsburg and Kagan, wrote a fiery dissent, noting the inconsistency between the Court’s April intervention in Wisconsin and its nonintervention in Florida: “Ironically,” Sotomayor concluded, “this Court has wielded Purcell as a reason to forbid courts to make voting safer during a pandemic, . . . because any safety- related changes supposedly came too close to Election Day. Now, faced with an appellate court stay that disrupts a legal status quo and risks immense disfranchisement—a situation that Purcell sought to avoid—the Court balks.”
The July 16 ruling in Raysor v. DeSantis was the last time the justices would publicly dispute how to apply Purcell before Justice Ginsburg died on September 18. But in the thirty-nine days between Ginsburg’s death and the swearing in of her successor, Justice Amy Coney Barrett, on October 27, an eight-justice Court was left to handle a flurry of last-minute election-related challenges—in which the pattern of favoring Republicans and disfavoring Democrats, as Chapter 6 documents in detail, persisted. One of the only exceptions came in Pennsylvania, in which Chief Justice Roberts joined the three remaining Democratic appointees in refusing to disrupt a Pennsylvania Supreme Court decision that authorized the counting of late-arriving mail-in ballots. As he would explain a few days later in one of the Wisconsin cases, the difference was whether the election-rule-altering decision had come from a lower federal court or a state court. In the latter context, he was willing to stay his hand.
A cynical observer could look at these rulings, all but one of which lacked a majority opinion, and see politics prevailing over principle. Given the internally contradictory nature of the Court’s interventions and the lack of attempts by the justices in the majority to reconcile them (at least publicly), it would be hard to prove that cynicism unfounded. And therein lies the rub: even judges and justices acting in good faith can leave the impression that their decisions are motivated by bias or bad faith— which is why judicial ethics standards, even those few that apply to the Supreme Court itself, worry about both bias and the appearance thereof. When partisanship appears to be the best explanation for rulings that don’t provide any alternative rationale, it is hard, if not impossible, to expect outside observers to assume that everything is aboveboard.
If there was a silver lining in the 2020 election cases, though, it was how little new law they made. The Court’s interventions (and noninterventions) came either with no rationale or, as in the unsigned majority opinion in the April case from Wisconsin, with a concerted effort to express no view on the merits. Rather, the Court was preserving what it viewed as the appropriate status quo and leaving some of the more challenging legal questions raised by the COVID-related changes to voting rules for a later date, if ever. But that, too, was soon to change. Within fifteen months, the court would begin using the shadow docket much as it already had in a series of COVID-related religious liberty cases—to make new law that would affect not just a single election in a single state, but dozens of elections nationwide. More on that tomorrow.