Missing From Supreme Court’s Election Cases: Reasons for Its Rulings

More recently, emergency applications in voting cases have spiked. Lower courts have struggled to make sense of the court’s orders, which are something less than precedents but nonetheless cannot be ignored by responsible judges.

Is it possible to trace some themes in the court’s election orders? Sure.

One is that Republicans tend to win. Another, as Justice Brett M. Kavanaugh wrote in a concurring opinion this month, speaking only for himself, is that “federal courts ordinarily should not alter state election rules in the period close to an election.”

He cited the 2006 ruling that has come to stand for that proposition, Purcell v. Gonzalez. Or perhaps “ruling” is too generous a word, as Purcell itself was an unsigned, cryptic, tentative and equivocal product of the court’s shadow docket. It has given rise to a “shadow doctrine,” Professor Stephanopoulos wrote last month in an essay on Take Care, a legal blog.

The Purcell case concerned an Arizona voter ID law. A trial judge refused to block it, but, about a month before the 2006 general election, the U.S. Court of Appeals for the Ninth Circuit issued an injunction forbidding state officials to enforce it.

The Supreme Court, ironically in light of where its own practices were heading, criticized the Ninth Circuit for offering “no explanation or justification for its order,” and it let the election proceed with the voter ID law in force.

The passage in the Purcell ruling that has been boiled down to the shadow doctrine of a near-categorical bar on late-breaking adjustments to state election procedures by federal courts was three sentences long. It was not at all clear, but it suggested that judges should balance competing interests and use judgment.

“Faced with an application to enjoin operation of voter identification procedures just weeks before an election, the Court of Appeals was required to weigh, in addition to the harms attendant upon issuance or non-issuance of an injunction, considerations specific to election cases and its own institutional procedures,” the unsigned opinion said. “Court orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase.”