Did the majority find Virginia’s statutory arguments more persuasive than the Fourth Circuit (and the district court) had? Did it disagree with the Fourth Circuit’s refusal to apply Purcell? Did it believe that Virginia really was suffering “irreparable harm” justifying emergency relief because of unsubstantiated claims of non-citizens voting (which is, in any event, a felony)? We’ll never know—and that’s the problem.
I’ve written before (in Chapter 7 of my book) about why it is so important for the Court to explain itself—especially when it grants emergency relief in a manner that divides the justices along ideological lines. The virtue of an explanation is that it’s the best (indeed, the only) defense the justices have against claims that they’re simply voting their partisan political preferences. Indeed, the Court itself has long viewed its ability to provide principled justifications as essential to its public credibility (and legitimacy)—not because we’ll necessarily agree with the principles the justices espouse, but because we’ll hopefully at least agree that they are principles.
And when Justice Kavanaugh this April attempted in a concurring opinion to explain why the Court shouldn’t always have to write in such cases, I wrote a post explaining why, with all due respect, his arguments were both self-contradictory and patently unpersuasive. If anything, the importance of providing a written rationale goes up dramatically in election-related disputes, because that’s where there is the most immediate and direct risk of the justices at least appearing to play partisan favorites—all the more so when, at least publicly, the decision appears to have divided the justices straight down partisan lines. If anything, the Virginia case is an especially extreme example in this regard because, unlike what’s true in most election cases, here, the issue turned on a federal statute that expressly contemplates (and, indeed, authorizes) litigation on the eve of an election. To not explain why that statute nonetheless couldn’t be enforced in these circumstances raises separation-of-powers questions that the typical election dispute doesn’t.
I’m not indifferent to the difficulty of providing a rationale in a case in which the timing was so compressed. But even a sentence or two would be better than nothing—to indicate, at the very least, what the principal ground for granting relief (traditional equities or Purcell) actually was. Indeed, when the Court intervened earlier this year in a Louisiana redistricting case, it at least did that much. Ditto in the Texas abortion case in September 2021—where a majority was able to cobble together a 401-word paragraph in a little more than 24 hours. Simply put, if it’s important enough for the Court to intervene, it should be important enough for the justices to drop everything and tell us why they’re doing so—even if they don’t have time to write a lengthy opinion.
Fortunately, the immediate stakes of the Virginia ruling are likely to be relatively modest, at least nationally. Virginia has same-day voter registration for anyone who was wrongfully removed from the rolls; and even if that number ends up being in the hundreds, and not everyone is able to correct the error, it’s hard to imagine any federal races turning on such a slim margin (the Virginia state legislature is, alas, another matter). And the one (and only) upshot of the Court not explaining itself is that its ruling can hardly be held out as a precedent for the conclusion that Virginia’s behavior did not violate the NVRA; obviously, the Court said nothing of the kind.
But the real concern Wednesday’s ruling raises is that the justices may be willing to intervene in a similar fashion in election-related disputes with higher stakes—such as the pending application seeking a stay of the Pennsylvania Supreme Court’s ruling that would allow for the counting of in-person provisional ballots cast by voters whose mail-in ballots are rejected for failing to include the required secrecy sleeve. Like the Virginia case, that case also raises an applicability-of-Purcell question (does Purcell even apply to rulings by state courts?) and a messy merits question (about whether the Pennsylvania Supreme Court decision reflects the kind of egregious behavior that triggers the so-called “Independent State Legislature” theory after Moore v. Harper). Given that there’s a non-frivolous possibility that the presidential election may very well come down to Pennsylvania, and that intervening in Pennsylvania might lead to requests to intervene in other swing states with Democratic majorities on the state supreme court, it would be the apex of judicial irresponsibility for the Court to grant emergency relief in that case without at least some (persuasive) explanation for why it’s doing so….