In the unbelievably complicated run-up to the 2020 elections, a variable we really aren’t used to seeing is frequent interventions in election law disputes by the U.S. Supreme Court. It’s largely a product of the vast wave of litigation by competing voting-rights and voting-suppression interest groups, mostly generated by adjustments in election procedures attributable to the COVID-19 pandemic. But it’s made more frustrating by the fact that the Supreme Court’s involvement is via largely unexplained “orders” in response to “emergency” requests for rulings, which can make life difficult for lower courts and the contending parties. As Adam Liptak of the New York Times observes, we are in uncharted territory here:
At least nine times since April, the Supreme Court has issued rulings in election disputes. Or perhaps “rulings” is too generous a word for those unsigned orders, which addressed matters as consequential as absentee voting during the pandemic in Alabama, South Carolina and Texas, and the potential disenfranchisement of hundreds of thousands of people with felony convictions in Florida.
Most of the orders, issued on what scholars call the court’s “shadow docket,” did not bother to supply even a whisper of reasoning …
The orders were responses to emergency applications, and they were issued quickly, without full briefing or oral arguments (hence the “shadow docket”).
It’s understandable that litigation over procedures for an election already underway might generate more “emergency” appeals to resolve disputes by the highest federal court. And while there are exceptions (including the recent Supreme Court order refusing to overturn a Pennsylvania Supreme Court ruling liberalizing mail-ballot deadlines), the most common occurrence has been SCOTUS setting aside a lower federal court ruling nullifying Republican-imposed state election procedures. That’s because the current conservative majority on the Court has emphatically embraced and extended a precedent discouraging federal court interventions late in the election cycle. In two unusually well-explained orders this year, one involving the April Wisconsin primary’s mail-ballot deadlines and the other South Carolina’s witnessing requirement for mail ballots, the Court relied on this principle to restore Republican-created state voting restrictions that had been struck down by federal district judges.
There’s a parallel trend in the current Court that reinforces the trend toward unexplained or poorly explained “emergency orders,” as University of Texas professor Stephen Vladeck recently pointed out: The Trump administration has really stepped up efforts to drag the Supreme Court into defending its point of view against lower-court judges:
Three and a half years into the Trump administration, the solicitor general has sought emergency relief — to stay a lower-court ruling or lift a lower-court stay — on 36 separate occasions, including 14 alone during the October 2019 term. That’s in contrast to the previous 16 years — under Presidents George W. Bush and Barack Obama — when the solicitor general sought such relief eight times, or once every other year. And as I wrote last November in an essay for the Harvard Law Review, the justices have largely acquiesced: 22 of the solicitor general’s first 35 emergency applications were granted in full or in part …
So the Court is issuing rulings between terms on more and more cases while offering fewer and fewer explanations, often at the request of the Trump administration or Republican state governments. This may give a hint as to how the Supreme Court might react to postelection pleas for interventions in disputes over vote counting and alleged voter fraud, particularly once new Justice Amy Coney Barrett augments the conservative majority. Don’t expect to get very clear explanations if that happens.