The Washington PostDemocracy Dies in Darkness

The Supreme Court shouldn’t decide voting cases. It keeps getting them wrong.

We’d be better off without the high court’s ‘shadow docket’ rulings on election law.

Democratic poll observers Mark Brandfonbener and Valerie Vidal watch early voting at a polling site in Milwaukee in October. The Supreme Court has been hearing lots of appeals about voting as the election nears.
Democratic poll observers Mark Brandfonbener and Valerie Vidal watch early voting at a polling site in Milwaukee in October. The Supreme Court has been hearing lots of appeals about voting as the election nears. (Bing Guan/Reuters)
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Over the past few months, election lawyers who litigate in the Supreme Court have hit the jackpot. The court has decided one election-related case after another — more than a dozen, in total, since the pandemic began. Among other things, the court barred Wisconsin from counting mail-in ballots postmarked after April’s primary Election Day, required Alabamians and South Carolinians to find witnesses for their mail-in ballots, and stopped Idaho from accepting digital signatures for ballot initiatives. Just this past week, the court also held that Wisconsin can’t tally mail-in ballots returned after the general election on Tuesday, while North Carolina and Pennsylvania can (for now).

But the court didn’t have to resolve any of these voting disputes. And it shouldn’t have resolved them. By intervening so often, the Supreme Court has become a body that corrects perceived lower-court errors, not one that decides major legal issues. By stepping in without explaining its actions, it has tarnished its institutional legitimacy. And by proceeding in haste, the court has made factual and legal mistakes — bad, not just unnecessary, law.

All the recent electoral cases have deviated from the court’s normal procedure, the one used for its regular “merits” docket. Ordinarily, after a lower court (generally a federal appeals court or a state supreme court) has reached a final judgment, the losing party may file a certiorari petition asking the Supreme Court to hear the case. The court grants only about 1 percent of these requests. When it does, written briefing unfolds over several months, followed by an oral argument. After the argument, the court usually takes several more months to announce its decision, which is signed and reasoned, often at great length.

In contrast, the cases about the 2020 election have been part of the court’s “shadow” docket. They haven’t arrived at the Supreme Court through cert petitions. Instead, their vehicles have been emergency applications filed with the court before lower-court proceedings have even finished. Briefing in these cases has taken place over days rather than months. In none of these cases has an oral argument been held. The court’s rulings have often been unsigned, obscuring which justices agreed and which dissented. Some of the rulings have even been unreasoned, flatly awarding or withholding relief without saying why.

Kavanaugh has wild ideas about voting. They likely won’t matter on Election Day.

Consider one typical example: On Sept. 30, after a 10-day trial, a federal district court in Alabama issued a 197-page decision requiring the state to allow curbside voting during the pandemic. The conservative U.S. Court of Appeals for the 11th Circuit upheld this order. On Oct. 15, Alabama filed an emergency application with the Supreme Court seeking a stay (i.e., a suspension) of the order. The court gave the civil rights group that brought the suit four days to respond. Two days after this response, the court granted Alabama’s application and reinstated its ban on curbside voting. The justices who supported this move didn’t identify themselves. In fact, they didn’t offer a word of explanation as to why they were reversing the district court’s thorough decision — which, again, a federal appeals court had left in place.

Maybe these sorts of rulings — rushed and unreasoned — could be excused if the court had no choice but to act. But the Supreme Court has complete discretion whether to intervene. No law or rule compels it to grapple with the merits of every emergency application that lands at its doorstep. Just as the court denies thousands of cert petitions each year, it could reject litigants’ requests that it overrule lower-court decisions about electoral matters. Such rejections would carry no precedential weight and would not interfere with the law’s future evolution.

Moreover, the court’s choice to cram its shadow docket with electoral cases has serious negative consequences. One is to reshape the court’s role atop the judicial hierarchy. “We are not . . . a court of error correction,” Justice Antonin Scalia once wrote. Rather, as the court’s rules confirm, its function is to resolve “important question[s] of federal law.” But no one would say that all of the electoral issues the court has recently addressed are legally important. None have involved disagreements among the federal circuits. Most have focused on the application of the well-established standard for when electoral regulations unjustifiably burden the right to vote. Whether this standard is violated by early mail-in ballot deadlines, witness requirements for mail-in ballots and so on is practically significant for voters and election officials. But legally, this is just a matter of whether a particular policy fails a test that’s not in dispute. Lower courts make these judgments all the time without anyone thinking their conclusions warrant Supreme Court review. By nevertheless granting review, over and over, the court has become exactly what it professes not to be: a tribunal that fixes the lower courts’ supposed mistakes, even when they implicate no larger legal principle.

The court’s failure to explain itself in many of its pandemic-era cases makes matters worse. Above all, the court owes its legitimacy to the reasons it generally gives for its decisions. These reasons show all sides that their arguments have been carefully considered. These reasons are also what make the court’s decisions law — the product of accepted modes of legal analysis — and not merely acts of will. When the court’s rulings are unreasoned, however, they don’t command the same respect. They don’t demonstrate to litigants that their concerns have been heard. And to the public, they seem more like exercises of political power than of judicial deliberation. This impression is all the more damaging when the court’s rulings almost all come out the same way: in favor of states that make it hard for their citizens to vote.

The Constitution won’t guarantee that your vote will count

Then there’s the poor quality of the recent electoral opinions, which further undermines the court’s standing. When the justices have bothered to explain their votes, they have made more than their usual share of blunders. These missteps are probably due to the atypical speed with which the court has been operating. Take Justice Brett Kavanaugh’s opinion in this past week’s case from Wisconsin: He wrote that Vermont had “decided not to make changes to [its] ordinary election rules” during the pandemic, even though the state took the unprecedented step of sending every registered voter a mail-in ballot. Kavanaugh claimed that Wisconsin “want[s] to be able to definitively announce the results of the election on election night,” even though the state’s vote-counting rules guarantee that it will still be tallying mail-in votes for several more days (and no state declares official winners on Election Day anyway). And he attributed unanimity to the Supreme Court in a case leading up to the Bush v. Gore imbroglio in 2000, even though the court had expressly declined “to review [any] federal questions” in that instance. The irony here is profound: As the court has embraced an error-correction role it used to shun, it has become more prone to erring itself.

The conservative majority that has been driving the court’s interventions would likely respond that electoral cases are special. When lower courts reach wrong decisions about electoral matters, these justices might say, the court has to step in because it’s intolerable for elections to be disrupted based on flawed legal interpretations. But this position is untenable. The election laws that lower courts analyze are just that: laws. They’re no more noteworthy than other laws — which are often invalidated, even incorrectly, without necessitating the court’s attention — simply because they involve voting.

Additionally, all the “mistakes” the court has “fixed” would have made it easier for people to vote. So if the court had allowed these alleged errors to stand, then it wouldn’t have authorized deficient elections that leave us unable to discern the will of the electorate. To the contrary, the court’s inaction would have led to better elections with fewer barriers to voting and fuller, freer participation. Even if these better elections weren’t legally compelled, they would have benefited American democracy — at a time when it needs all the help it can get.

Read more from Outlook:

Vote early and often? That’ll just slow down the ballot count.

The election will likely spark violence — and a constitutional crisis

The loser of November’s election may not concede. Their voters won’t, either.

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