Electoral law is in vogue for state legislatures this year. Facing the monumental Supreme Court decision in Shelby County v. Holder last year, some states are free to pass new electoral laws. These new laws are designed to prevent voter fraud by implementing more rigorous voting practices. These include requiring voter identification, cutting early voting, and limiting absentee balloting. However, these practices are widely argued to disenfranchise youth, minorities, and the elderly, targeting the voting methods which these groups use the most. The Supreme Court’s rulings on electoral law is only exacerbating their associated problems of voter fraud and disenfranchisement.
Voter fraud and voter disenfranchisement are both important issues. In Pennsylvania, an identification law was struck down this past February. It was estimated that the restrictions could have disenfranchised hundreds of thousands of voters. Attempts to make these identification laws more palpable for those without IDs have not been successful. Texas passed a voter ID law this year. The state was supposed to give election-specific IDs to assuage the issue, but as of August, admitted to only giving out 279 IDs. These statistics are worrying, especially when voting rights are facing more and more threats as of late.
Last year, the Supreme Court in Shelby County v. Holder struck down a provision of the Voting Rights Act (VRA) requiring federal pre-clearance before new voting rights legislation could be implemented in certain states. The Court held in a 5-4 majority that the distinction of which states were included in the law was arbitrary. When the VRA was passed, states with histories of voter discrimination were required to be cleared to implement new voting laws by the federal government. For example, any voting rule change in Alabama would have to get a determination from the U.S. District Court of Appeals or the Attorney General that the law does not disenfranchise voters. The Supreme Court ruled that designating certain states for preclearance was a violation of the equal sovereignty of the states.
However, the Supreme Court’s ruling only struck down the selection of states for closer scrutiny under the VRA. New electoral laws are still subject to the same judicial scrutiny applied to every law. Without the pre-clearance requirement, at least, state legislatures are passing a slew of newly restrictive laws. Facing a wave of electoral law, the Supreme Court has issued a wave of convoluted rulings on voting rights in the lead up to the 2014 midterm elections.
The four major rulings this year were in North Carolina, Wisconsin, Texas, and Ohio. All four states passed restrictions, and the Supreme Court gave emergency orders, albeit rather close to the elections. North Carolina’s ruling came 27 days before the November 4, 2014 election; Wisconsin’s, 26 days; Texas’s, 17 days; and Ohio’s, just 16 hours before early voting was set to start. For those keeping score at home, that is four major emergency orders, preserving original election law, all in the month prior to the election. Hastily issued, these injunctions and stays have left voters, state officials, and lower court judges confused about precedents of these cases. Moreover, the rulings confuse voters heading to the polls about electoral law at a time when the voters’ understanding could not be more critical.
The orders issued by the Supreme Court in these four cases are all unsigned, meaning that the order is signed in the name of Court rather than specific justices, and provide no rationale for the decisions. This is commonplace when the Supreme Court makes a ruling, but does not want to set a precedent on the merits of the case. Since these rulings are emergency injunctions, the full case is not heard by the court. Richard L. Hasen, Chancellor’s Professor of Law and Political Science at the University of California- Irvine, notes, “These are rulings on temporary questions. Questions like, ‘Can this voter ID law be implemented in this election?’” These rulings are only in effect until the Supreme Court can hear the entire case.
However, voters and lower court judges need to be informed of a clear precedent in order to make responsible decisions regarding the electoral process. All four states’ election laws were challenged leading up to this year’s elections. The common thread between all four rulings is the temporary preservation of the voting laws. This principle is what Professor Hasen recognizes as the Purcell Principle, named after the case Purcell v. Gonzalez. The Supreme Court recognizes that changing a law too close to an election would endanger the electoral process, more than the harms of enacting the law. For example, the requirement of voter identification too close to an election would leave many with the inability to get the required identification to vote. While the voter identification law itself may be constitutional, enacting the law so close to an election is not. The law can then be formally challenged after the election.
The problem with the Purcell Principle is that the Supreme Court has applied the principle inconsistently. In Ohio, the state legislature passed a law cutting the number of weeks of early voting. After a hearing in the U.S. District Court and an appeal in the U.S. Circuit Court of Appeals, the U.S. Circuit Court of Appeals for the Sixth Circuit required Ohio to reinstate the early voting weeks previously cut. This ruling was in place for several weeks, until just 16 hours before early voting was set to begin, the Supreme Court ruled for the installation of the original law.
While the Supreme Court preserved the status quo by reinstating the old law, it also confused voters right before the voting period by not preserving the prior lower court ruling. The Supreme Court appears to only recognize the Purcell Principle in the context of legislation, not lower court rulings. Since there is no written decision, it would be difficult to determine if this were an actual constitutional principle. Furthermore, the Supreme Court could have ruled that the Ohio case was especially weak, and may have been swayed by the merits of the case. There is no statement of their reasoning.
When the U.S. Supreme Court rules on timing rather than merits, and even then, inconsistently, it confuses lower court judges. At issue is constitutional precedent. The U.S. District Courts or U.S. Appeals Courts handle most federal voting rights cases, since the Supreme Court only hears 100 of the more than 7,000 cases it is requested to hear every year. These courts follow Supreme Court precedent in issuing rulings and injunctions. The Supreme Court’s rulings, though, offer no explanation or insight into why the rulings were issued. If, for example, a specific case was ruled on merits rather than timing, or there is a threshold issue at play, the lower-court judges would have no idea how it was applied in the specifics of the case. This leaves lower courts the responsibility of guessing the Supreme Court’s motives. Our elections deserve more than guesswork.
Take, for instance, the ruling on voter ID in Texas. Judge Edith Brown Clement of the United States Court of Appeals for the Fifth Circuit explains her decisions, “While the Supreme Court has not explained its reasons for issuing these stays, the common thread is clearly that the decision of the court of appeals would change the rules of the election too soon before the election date.” She goes on to note that the “timing rather than the merits, seems to be the key.”
The election law of the United States deserves more from our legal system than a “seems.” Judges are left to discern constitutional precedent implicitly. Professor Hasen refers to it as “reading the tea leaves based on what the Supreme Court has done.” Most judges will attempt to weave together a decision from various legal strands. A judge must read patterns from past injunctions. A judge must read dissents to understand what issues the Supreme Court was considering. None have the same power as a constitutional precedent from the Supreme Court, and America deserves constitutional protections for its elections.