There are 250 COVID-related election cases making their way through the nation’s state and federal courts. The Supreme Court, which lost one of its greatest defenders of the right to vote with the tragic passing of Justice Ruth Bader Ginsburg, is poised to issue critically important orders in voting rights cases in the weeks to come that could affect whether your vote is counted. Critically important cases from Pennsylvania and South Carolina, both of which raise important questions about the counting of mail-ballots that Americans will be casting in record numbers this election, are already before the Supreme Court. Cases from Arizona, Georgia, and Wisconsin are not far behind. Hanging over all of these cases is the likelihood that the conservative wing of the Supreme Court will say it is too close to the election to protect the right to vote.
One of the most troubling developments of recent years is the Supreme Court’s issuance of unsigned, and often unexplained, stay orders stopping courts from vindicating the right to vote close to an election. Through these cursory orders, decided in a rushed manner and without full briefing or oral argument, the Roberts court has been rewriting the rules of our democracy, despite the obvious truth that there is no time when the right to vote is more dear than when it is about to be exercised. Through these summary orders—a part of what is called the court’s shadow docket—the court has put an expiration date on our Constitution’s promise of an inclusive, vibrant, multiracial democracy. According to the court’s conservative majority, once it is close to Election Day, courts should not be enforcing the fundamental right to vote, a right protected by more parts of the Constitution than any other right.
This new doctrine makes a mockery of the Supreme Court’s historic role of enforcing the Constitution’s commands and preventing abuse of government power. “No other body,” John Marshall argued during debates over the ratification of the Constitution, “can afford such a protection” from an “infringement of the Constitution.” This is particularly important when the right to vote is at stake. Once a voter has been denied his or her constitutional right to cast a ballot, it is impossible to unring the bell. No later order can undo the denial of the right to vote for citizens whose votes have been suppressed.
Importantly, no legal principle commands the courts to shut the courthouse doors on voters when their right to vote matters most. The Roberts court created these doctrines out of whole cloth. Before John Roberts became chief justice, the Supreme Court granted remedies to individuals victimized by restrictive election rules even quite close to Election Day, taking careful account of both the right to vote and governmental interests in the orderly administration of elections.
When candidates brought suit to redress unduly burdensome ballot access rules, the Supreme Court granted relief to allow voters more choices at the ballot box. In 1968, just weeks before Election Day, the court ordered Ohio to add the American Independent Party to the ballot, allowing voters the right to choose the party’s candidate for president. In 1976, a little more than a month before the year’s presidential elections, the court ordered Texas to add former Sen. Eugene McCarthy to the presidential ballot as an independent, refusing to allow the state to curtail the choices available to voters. Likewise, when voters challenged discriminatory voting changes, the court enjoined them, even close to the election. The court recognized that it was critical to act before the election took place because voters may be “inclined to avoid the polls when an election is held in conceded violation of federal law.” In sum, the Supreme Court refused to accept that violations of the right to vote “must go unremedied” simply because Election Day was drawing near. There was no expiration date on the right to vote.
That all changed beginning in a 2006 case called Purcell v. Gonzalez, which announced that federal courts should be wary of issuing injunctions in voting rights cases close to an election. “Court orders affecting elections, especially conflicting orders,” the court’s unsigned opinion explained, “can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase.” Since then, the conservative wing of the Supreme Court has repeatedly doubled down on what has been called the Purcell principle. Now, in practice, the Purcell principle means that the courthouse doors must be bolted shut as Election Day nears. This effectively reduces the right to vote to a second-class right and inevitably harms marginalized and less-powerful citizens. If courts announce that they will essentially never intervene, they invite partisan manipulation of our democracy.
We have seen this play out repeatedly this past year. In April, in a 5–4 ruling in Republican National Committee v. Democratic National Committee, the court’s conservative majority held that “courts should ordinarily not alter election rules on the eve of an election,” blocking an order designed to ensure that voters in Wisconsin did not have to sacrifice their health in order to vote. Even the extraordinary circumstances in Wisconsin—thousands of voters would likely be disenfranchised because they had not received absentee ballots on a timely basis due to a public health crisis unparalleled in our lifetime—did not qualify for an exception from this so-called ordinary rule. The consequences were felt hardest in communities of color in cities such as Milwaukee, where only five polling places were open. Ginsburg’s plea that “ensuring an opportunity for the people of Wisconsin to exercise their votes should be our paramount concern” went unheeded.
In a string of unsigned, unexplained orders this summer, the Supreme Court has repeatedly shown that it will not protect the right to vote during an election year. The court has considered emergency motions in cases challenging voting or ballot access restrictions in Alabama, Florida, Idaho, Oregon, and Texas. In each case, the court sided with the state, prompting Justice Sonia Sotomayor to take the court to task for its pattern of repeatedly “condoning disenfranchisement” and “forbid[ding] courts [from] mak[ing] voting safer during a pandemic.” The exception that proves the rule was a case from Rhode Island in which the court refused to disturb a settlement in which the state agreed not to enforce the restriction in question. The upshot is that Purcell has become an inflexible rule that sanctions voter suppression and prevents courts from playing their historic role in protecting constitutional rights.
What is even more troubling about this jurisprudential reversal is that it is entirely a product of the court’s summary orders process, which is characterized by rushed decision-making and rulings announced with little to no reasoning. The Supreme Court announced Purcell without full briefing and oral argument. It has repeatedly applied Purcell in a string of cases that also lacked full briefing and argument. The court’s reasoning in these cases ranges from cursory to none. It is not surprising that the Roberts court has not given any attention to all the ways Purcell diverges from the court’s earlier case law that took as its touchstone the imperative of protecting the right to vote when it matters most. The Purcell principle has been developed without the sustained consideration and reflection necessary for proper judicial decision-making. Deciding major voting rights issues without time for proper consideration, argument, and reflection produces shoddy, error-ridden decisions that short-change the right to vote, one of our most cherished constitutional rights.
As we approach what is shaping up to be a historic election, American democracy is in grave danger. The 2020 election is shaping up to be a crucial test of our constitutional commitment to free and fair elections. Even the norm that demands that candidates respect the will of the voters and facilitate an orderly transfer of power is under attack. History will remember those who fought to safeguard the right to vote and those who sought to suppress the vote, foment misinformation, and undercut the integrity of our electoral process. If the Supreme Court intervenes to squelch the casting and counting of votes, it will come at a cost to the integrity of the institution and our democracy.