A More Liberal Supreme Court? Not When It Comes to Voting Rights

The recent orders were all unsigned. In only two of them was it plain that the vote was 5 to 4. But it seemed clear that the court’s Republican appointees were in the majority in all of them.

The cases often turned on a seemingly neutral question, one that election law scholars call the Purcell principle, after a 2006 decision, Purcell v. Gonzalez, that said courts should not change the status quo too close to an election. But just what counts as the status quo is often contested.

In April, the majority relied on that principle to say that a federal judge in Wisconsin should not have extended the deadline for some absentee voting in light of the coronavirus pandemic. The vote was 5 to 4, and it split along the usual lines.

“Extending the date by which ballots may be cast by voters — not just received by the municipal clerks, but cast by voters — for an additional six days after the scheduled Election Day fundamentally alters the nature of the election,” the unsigned opinion said.

In dissent, Justice Ruth Bader Ginsburg wrote that “the court’s order, I fear, will result in massive disenfranchisement.”

She said the majority had put voters in Wisconsin to an unacceptable choice.

“Either they will have to brave the polls, endangering their own and others’ safety,” Justice Ginsburg wrote. “Or they will lose their right to vote, through no fault of their own. That is a matter of utmost importance — to the constitutional rights of Wisconsin’s citizens, the integrity of the state’s election process, and in this most extraordinary time, the health of the nation.”