The Docket Strikes Back: Recalibrating the Supreme Court’s Shadow Docket to Prevent Voter Disenfranchisement

Part I: Introduction

Justice Elena Kagan has sounded the alarm on emergency petitions and the issues of the “shadow docket” by expressing that emergency petitions alleging “irreparable harm” ^[1] can be “improvidently granted[.]”^[2]

Democracy and the principles of civil rights demand that the functions of government remain transparent and open to the criticisms of the American people through voting. The Supreme Court of the United States is a battleground for voting rights due to being “the highest court in the land . . . [and] the court of last resort for those looking for justice.”^[3] To dispense justice, the Court exercises its legal powers and mechanisms to exercise judicial review over the laws, rules, and regulations of the United States.^[4] However, under the Roberts Court, the Court has become increasingly comfortable circumventing judicial review and intervening in major issues through the shadow docket by procedurally issuing major doctrine—such as the disruptive Purcell principle created in Purcell v. Gonzalez.^[5] The Purcell principle is a presumption used against voters to preclude challenges to election law perceived by the Court to be “too close” to election day.^[6] The shadow docket undermines judicial transparency and public trust because rulings are usually unsigned and without sufficient reasoning for lower courts to identify signals.^[7] Judicial transparency is essential because all judicial decisions—including those on the shadow docket—have broad legal and societal implications, especially decisions that impact marginalized and underrepresented groups.^[8] Governmental and non-governmental parties continuously apply for emergency relief by alleging irreparable harm will result without the Court intervening with an emergency order to cease or permit certain identified conduct.^[9] The irreparable harm standard spans from emergency petitions relating to the recent COVID-19 pandemic cases to major voting rights decisions like the Purcell principle.^[10] Because emergency petitions affect a broad spectrum of cases, the Court constantly grapples with consistency, especially when voting rights are in dispute.^[11] The Court must also contend with institutional pressure from presidential administrations that increasingly lean on emergency applications to advance political goals through the Office of the Solicitor General.^[12] Emergency relief should only be granted in “extraordinary cases,” but the Court continues to intervene and provide arbitrary standards, so irreparable harm should harden and metastasize into a “heightened” standard.^[13] “Heightened harm” will simultaneously protect disenfranchised voters, shed light on the Purcell principle, and ultimately cabin political pressure exerted by the executive branch over the Solicitor General to petition the Court on every hot-button political issue.^[14]

What this Note terms “heightened harm” is a procedural presumption rooted in equity, which mandates major doctrine cannot be created through emergency applications and applies the procedural presumption that a challenged voting law is inequitable. The resulting rulings, whether in the form of per curiam opinions or summary reversals, will have no precedential weight and are precluded from application to subsequent election law cases.^[15] Under heightened harm, the state must show that there would be a (1) “severe burden” or (2) “inequity” to the state that would result from not upholding the voter law in controversy. Heightened harm would also apply the presumption that the challenged voting law is inequitable until the state can satisfy its burden. Through heightened harm, the Court would be required to balance factors such as impact to underrepresented demographics, voter confusion, and the harm in maintaining the original status quo of the previous voting scheme until the Court can formally review on the merits.

This Note critiques the Purcell principle and seeks to protect voting rights by arguing that the Court’s shadow docket should be recalibrated by introducing a new standard of heightened harm to protect citizens from widespread voter disenfranchisement.^[16] Part II proposes the heightened harm standard and articulates the birth of equity along with the Court’s modern and historical relationship with the Constitution and procedural relief.^[17] Part III articulates the procedural process of emergency applications and how litigants can request emergency relief when alleging irreparable harm.^[18]

Part IV begins by discussing the procedural creation of the modern Purcell principle and how it became enshrined as major doctrine.^[19] Part IV further explains how the progenies of Purcell have further rooted its claws in the foundation of democracy by becoming an effective tool in disproportionately affecting marginalized groups across the country.^[20] Additionally, Part IV identifies the Purcell principle’s per curiam signal to give guidance to lower courts and show the doctrine’s consequential legacy as it pertains to future challenges to voter laws.^[21] Moreover, Part IV will discuss the proposed solution to combat the issue of voter suppression by reframing the test of irreparable harm into two separate tiers: (1) heightened harm and (2) irreparable harm.^[22]

Finally, Part V analyzes the consequences that result when the executive branch exerts pressure on the Solicitor General to pursue emergency applications which advance political goals.^[23] Part V ultimately highlights why there is a need for additional “heightened” safeguards, and how theories, such as the unitary executive theory, can allow presidents to pursue political interests through the Office of the Solicitor General and give exclusive legitimacy to the political interests of the executive branch.^[24] Part VI concludes by reaffirming that longstanding justiciable and equitable principles cannot allow the Purcell principle to stand between litigant-voters and relief.^[25] The goal of this Note is to pull back the veil of the shadow docket and suggest an equitable standard of heightened harm that will bring transparency to issues that affect voting rights, and by default, our democracy. The battle for civil rights is not only fought in the light on the battlefield in public view, but also in the shadows, away from the sight of mass media and public discourse.

Part II: Heightened Harm and the Emergence of the Shadow Docket

A. Heightened Harm: Recalibrating the Shadow Docket

Heightened harm applies the procedural presumption that a challenged voting law is inequitable. The state’s burden to combat the “heightened” presumption requires proving the voting law is equitable and balancing the public’s interest in voting through various factors. Under heightened harm, the state must show either a (1) “severe burden” or (2) “inequity” to the state resulting from not upholding the voter law in controversy. The Supreme Court would also be required to “balance the equities” through factors such as, inter alia, impact to marginalized demographics and voter confusion at the ballot-box. In addition, when the standard of heightened harm is applied, it holds little precedential value and creates a consistent per curiam signal reasoned on an exacting factual basis. Heightened harm will also give the lower courts a consistent message and help alleviate “unintended consequence[s] as a result of the per curiam outcome being misconstrued[.]”^[26] To remedy this confusion, heightened harm will also have the presumption that major doctrine cannot be issued through the emergency application process. Under the heightened harm standard, Purcell would be severely limited in its scope and application due to the prohibition on major doctrine made through the emergency docket as it pertains to voting rights. Heightened harm will also create a more “exacting standard” on a case-by-case basis; this new standard would be an effective remedy to combat voter suppression by changing the legal landscape through equitable mechanisms. A historical background of equitable relief is essential to understand how the Court fashions its procedural power of emergency injunctive remedies.

B. The Birth of Equity

Courts exercise concurrent jurisdiction in both law and equity in modern American jurisprudence.^[27] When a petitioner seeks an equitable remedy, the court orders a party to do or refrain from a particular action; a party seeking an equitable remedy must formally request equitable relief from the court.^[28] An injunction is a form of equitable relief and “is a court order, enforceable by sanctions for contempt of court, directing a defendant to do or refrain from doing some particular thing.”^[29] Whereas a monetary remedy, or a remedy at law, seeks to restore an injured party to the position they would have been in if the wrong never occurred.^[30] Courts of law and equity both have origins in old English feudal law and the courts of law and equity previously operated as two separate institutions.^[31] When subjects of the king sought remedies for wrongs which could not be remedied at law, they would petition the king, who would then convene with the King’s Council or Curia Regis, and refer the petitions to the Lord Chancellor.^[32] Courts of equity were first developed to formally address wrongs that could not be remedied by monetary damages at common law—this resulted in the creation of the Court of Chancery, which derived its name from the Lord Chancellor.^[33] The Lord Chancellor was also known as the “Keeper of the King’s Consciousness,” and early practitioners who were devoted to practicing in the court of equity were called “solicitors in equity.”^[34] Moreover, the Lord Chancellor acted as both judge and jury in administering equity “in personam” which translates to “against the person,” and gives the court personal jurisdiction over the person or entity.^[35] Because the Lord Chancellor acted as both judge and jury when presiding over suits in equity, there is no right to a jury trial when a party seeks an equitable remedy.^[36] One of the most “extraordinary” remedies constructed and administered by the Lord Chancellor was the decree of injunction.^[37] There is also an overlapping relationship between law and equity because the Chancellor could also equitably enjoin judgments won in courts of common law.^[38]

States such as Tennessee, Delaware, and Mississippi have separate chancery courts which exclusively exercise equitable jurisdiction and primarily administer equitable relief.^[39] In most state and federal courts, the administration of law and equity are unified in one court, meaning that both a remedy at law or equity may be sought in a singular venue.^[40] Under 28 U.S.C. § 1651, the Supreme Court and lower federal courts have the statutory power to fashion a series of appropriate remedies through writs.^[41] Section 1651 states that:

The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law. An alternative writ or rule nisi may be issued by a justice or judge of a court which has jurisdiction.^[42]

Although Section 1651 gives federal courts wide latitude to issue all necessary remedies, modern case law has set legal parameters around injunctive relief for federal courts.^[43] The Court has remained flexible in using its discretion to issue a myriad of different writs, whether substantive or procedural, by leaning into the statutory language that “[t]he Supreme Court . . . may issue all writs necessary or appropriate[.]”^[44]

Justiciable cases and controversies between adverse parties give rise to judicial remedies that may be applied on a case-by-case basis.^[45] The law of remedies has various mechanisms that allow courts to fashion requested relief.^[46] However, the form of remedy that parties request will vary and include: compensatory, preventive (coercive and declaratory), restitution, punitive, and ancillary remedies.^[47] Coercive remedies, such as injunctions, are subject to the Court’s power of certiorari because the Court’s discretion has wide procedural latitude whether to stay or reverse lower court orders on appeal, “even if denials of certiorari are not precedential . . . . Sometimes, the [justices] send implicit messages both to lower courts and to policymakers about the justice’s lack of appetite for particular issues, or their unwillingness to set aside lower-court judgments even on questions they never considered.”^[48] The Court has procedurally ruled through the shadow docket by giving a plethora of emergency remedies to parties whose matters have not formally undergone traditional review on the merits.^[49]

C. The History of Certiorari and the Court’s Power Discretion

The Supreme Court exercises complete discretion over its docket and selects cases and controversies through the judicial mechanism of certiorari.^[50] Former President and Chief Justice William Howard Taft “understood that the Court’s true power comes not from the substance of its rulings, but from its institutional autonomy and independence, both formally and functionally. And he fought for decades to maximize both”^[51] To expand the Court’s powers, Then-Chief Justice Taft pushed a series of reforms known as the “Judges’ Bill” which is officially codified as the Judiciary Act.^[52] On February 13, 1925, President Calvin Coolidge signed the Judiciary Act into law and the Court immediately began transforming its docket.^[53] The Court exercised its new discretion by narrowing the scope of cases to specific questions in Olmstead v. United States, and while that practice is commonplace today, it was a sharp departure from English common law.^[54] For example, in the English common law, when a writ of certiorari was issued to a lower court from a superior court, the lower court brought the entire case—Olmstead established the judicial practice to grant particular questions rather than cases.^[55]

Expanding the Court’s discretion over cases also led to judicial side-stepping on major issues.^[56] In 1954, the ground-breaking case Brown v. Board of Education struck down racially segregated private schools for violating the Fourteenth Amendment’s Equal Protection Clause.^[57] A few years later, in 1956, Naim v. Naim came before the Court on appeal claiming that Virginia’s anti-miscegenation laws were unconstitutional based on the reasoning and precedent set in Brown, however:

[I]n a cryptic, unsigned order, the Court ducked, refusing to decide the appeal because of claimed defects in the record. . . . The real reason for ducking, as became clear later, was that Justice Felix Frankfurter didn’t think the Court had the political wherewithal to take up anti-miscegenation laws so soon after Brown.^[58]

Because of judicial side-stepping, simultaneously accompanied with a cryptic and unsigned order, interracial couples would not have the ability to marry until the Court struck down Virginia’s anti-miscegenation statute in Loving v. Virginia in 1967.^[59] By cryptically denying review of Naim, the Court used certiorari to fashion procedural technicalities that produced substantive results.^[60] Naim was sufficiently ripe for review in 1956, eleven years before Loving, so by denying review, the Court effectively precluded relief to litigants and established a practice of ducking adequately ripe issues.^[61] The Court’s discretion allows it to side-step certain issues by maximizing the writ certiorari, however, the Court’s discretion must be exercised in accordance with Article III and long-established principles of justiciability to maintain constitutional consistency and legitimacy.^[62]

D. Ripeness and Article III of the Constitution

Article III of the Constitution states that “[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”^[63] In 1803, Marbury v. Madison subsequently gave breath to the Court’s doctrine of judicial review, which allows appellate review of cases and controversies between adverse parties.^[64] In addition, the dispute must be a justiciable “case or controversy” under Article III.^[65] The question of whether a matter is constitutionally justiciable when an emergency application is made to the Court is crucial. If cases containing major constitutional rights are procedurally ruled upon while simultaneously neglecting justiciable principles, Article III is being unconstitutionally circumvented, and therefore, it follows that a major constitutional issue has been relegated to the shadows.^[66]

Purcell highlights the justiciable principle of ripeness as it relates to voting rights and whether challenges are sufficiently ripe for appellate review and emergency intervention by the Court.^[67] If courts are able to preclude challengers from the courthouse when issues are sufficiently ripe, then a blatant disregard for firmly established justiciable principles is present.^[68] In Purcell, the Court articulates that the challengers’ claims were essentially too ripe since, in the Court’s opinion, the legal challenge came too close to election time.^[69] Moreover, if challenges to voter laws are precluded without a clear bright-line rule due to the phenomenon of over-ripeness, then subsequently applying the arbitrary standard set in Purcell would fundamentally circumvent clearly established justiciability principles relating to ripeness.^[70] There must be a heightened remedy that is consistent with the constitutional principles of justiciability to protect against arbitrary standards imposed on voting law challenges.

Federal courts are not the only venues affected by emergency procedural rulings; lower state courts are often affected by procedural interventions of state supreme courts.^[71] Adam Sopko’s article, State Supreme Court ‘Shadow Dockets’: More Power with Less Transparency, highlights that the same procedural guise which has manifested around the Supreme Court has now inserted itself within state courts’ legal systems as well.^[72] This suggests that the scope of the Court’s procedural power affects the jurisprudence of both the federal and state courts in how relief is bestowed upon parties.^[73] Although each state court has their own substantive and procedural nuisances, the Supreme Court provides constitutional guidance to all courts in the land, and the acceptance of arbitrary procedural rulings by the highest court (which results in major doctrine), leads other state courts to conclude that the lack of transparency is acceptable jurisprudence.^[74] If state courts look to the Supreme Court for guidance, it logically follows that when the Court disregards firmly rooted justiciability doctrines and precludes ripe challenges to election laws, state courts will likely follow suit.^[75] Such disregard for constitutional principles will have grave effects on the emergency disposition of civil rights cases at the state level—effects already present in federal courts.^[76] Tailoring a heightened procedural safeguard to protect voting rights, will help remedy and preserve civil rights claims that are sufficiently ripe for review. The current framework under the Purcell principle is unworkable and has led to greater voter disenfranchisement and a string of cases that further chip away firmly rooted justiciability principles.^[77]

This Note’s proposed heightened harm standard is not without its critics. Those who challenge it may argue that because the voting law at issue was enacted through direct democratic participation, it should be enforced as the expressed will of the people. Critics may further contend that a heightened harm standard obstructs democratic outcomes. But that objection inverts the principle: heightened harm does not suppress the will of the people—it preserves it.

Part III: Emergency Procedure and Per Curiam Signals

A. The Process of Procedural Emergency Applications & Emergency Relief

Before the Supreme Court reviews a case on its merits, the case must move through the legal system: beginning as a complaint filed at the district court level, proceeding through the circuit courts on appeal, and culminating in a petition for certiorari to the Court.^[78] Under 28 U.S.C. § 1254, the Court primarily grants parties’ petitions of certiorari in a civil or criminal case that has gone through the appropriate appellate process.^[79] The Court may grant certiorari and hear oral argument on the merits of a case, or the Court may deny certiorari and refuse to hear oral argument on the merits of a case.^[80] Additionally, the Court can procedurally rule on emergency applications by granting or denying stays or by issuing an order of injunction.^[81] For example, emergency injunctive relief is unlikely to be granted if the present harm is too “remote and speculative” and lacking irreparable harm.^[82] A stay and an injunction are different procedural mechanisms that specifically request different forms of relief.^[83] Understanding the differences between the merits and procedural process can give skilled advocates an edge when requesting various forms of relief for clients.^[84]

There are also circumstances when the Court may procedurally issue stay orders or emergency relief before a case has gone through the formal appellate process.^[85] For example, the Court may grant a petition for certiorari before judgment when an issue is pending in a lower appellate court “only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.”^[86] To apply for an emergency petition and request a stay, an injunction, or another form of relief from the Court, the filing party must show irreparable harm will likely result if the requested relief is not granted.^[87] The test for irreparable harm is also continuously articulated in both Supreme Court cases, such as Conkright v. Frommert, and appellate court cases, such as Cuomo v. U.S. Nuclear Regulatory Comm’n.^[88] The Court’s current standard of irreparable harm is articulated in Conkright:

[T]he applicant must demonstrate (1) “a ‘reasonable probability’ that four Justices will consider the issue sufficiently meritorious to grant certiorari or to note probable jurisdiction”; (2) “a fair prospect that a majority of the Court will conclude that the decision below was erroneous”; and (3) a likelihood that “irreparable harm [will] result from the denial of a stay. . . . [And] in a close case it may be appropriate to ‘balance the equities’—to explore the relative harms to applicant and respondent, as well as the interests of the public at large.”^[89]

Since parties, including the government, are continuously seeking emergency injunctive relief through claiming irreparable harm, it can be difficult for courts to ascertain consistent signals from a myriad of orders that involve a variety of distinct legal issues.^[90] This dysfunction is further reflected in the Purcell Court’s failure to fulfill the standard articulated in Conkright, having materially departed from truly “balanc[ing] the equities . . . to explore the relative harms . . . as well as the interests of the public at large.”^[91]

A heightened standard is required because the Court failed to correctly apply the current irreparable harm standard in Purcell—a correct application would have likely yielded a different outcome for voting rights. The Purcell Court stayed the Ninth Circuit’s two-judge panel ruling without formally and correctly applying the standard of irreparable harm and truly “balancing the equities.”^[92] The emergency applicants before the Court sought to uphold Arizona’s voting law, Proposition 200, and stay the lower court’s ruling that enjoined it.^[93] By vacating the Ninth Circuit’s stay, the Court failed to “balance the equities” because it did not adequately contemplate “exploring the relative harms to applicant and respondent, as well as the interests of the public at large.”^[94] In Purcell, the litigants challenging Proposition 200 were not only the respondents to the emergency application, but were themselves members of the “public at large.”^[95] As local members of the public directly affected by Proposition 200, they articulated their interests through legal mechanisms because their right to vote faced abridgment—the courts being the only available venue for protecting this right.^[96] The public has an inherent interest in voting rights and the election laws that seek to add or restrict access to the polls.^[97] The Purcell Court effectively precluded voters from challenging election laws “too close” to an election, and this challenge preclusion directly results in “irreparable harm,” not only to voters solely affected by Proposition 200, but the public as large.^[98]

B. Per Curiam Signals & Other Procedure

Professor William Baude explains how the Court, operating through its emergency docket, issues orders outside the merits process, including stays, injunctions, and summary reversals of lower court decisions, that have become procedurally routine.^[99] While the Court’s cases on the merits garnish the most publicity among the media and public, the little known orders list, which is issued before the Court formally goes into session at 10 AM, has received substantially less publicity.^[100] Per curiam opinions are “issued in the name of the Court rather than specific judges[,]” and routinely appear in short and summarized forms—often without explanation—such vague per curiam summaries foster confusion in lower courts and provide little guidance on what factors lower courts should consider in deciding future disputes.^[101] Per curiam signals act as guidelines for lower court decisions because the Court issues the decision in the name of the court rather than having the traditional majority or dissenting opinion.^[102] However, there are times when per curiams are not unanimous and have substantial controversy attached, which may result in individual justices writing concurring and dissenting opinions.^[103] Per curiams should be closely associated with signals so lower courts can interpret and apply the law consistently.^[104] Even when per curiam signals are clearly delineated, there is further nuance associated with properly administering these signals to future cases and controversies.^[105]

Part IV: The Modern Shadow Docket

A. Procedure As Major Doctrine

The shadow docket can make precedent, whether intentionally or inadvertently, through using the Court’s emergency docket.^[106] Thus, the Court must exercise caution when issuing summary orders to avoid creating new legal doctrine that lacks the full briefing and oral argument of the merits process.^[107] If the merits processes of full briefing and oral argument are continuously circumvented through the emergency docket, then new major legal doctrines will regularly be summarily created, leading to the procedural usurpation of traditional legal doctrine.^[108] Procedural decisions can significantly affect different areas of the law and change the availability of various remedies—blockbuster shadow docket rulings that changed the legal landscape include: the COVID-19 cases, death penalty cases, and civil rights challenges to voter suppression laws.^[109]

When faced with the issue of voting rights, the Court’s emergency docket has been, and continues to be, an exceedingly effective tool in curbing election challenges.^[110] In 2006, Purcell v. Gonzalez^[111] was one of the first major voting cases that procedurally found its way before the Roberts Court. In response to the election law challenge, the Court created the Purcell principle, which precluded challenges to election law determined to be “too close” and confusing to voters.^[112] The Purcell principle has subsequently spawned a line of cases that have effectively closed the court doors to voters looking to mount constitutional challenges on election laws when there are upcoming elections.^[113] Without heightened procedural protections and a bright-line rule, the preclusion of facial challenges to the constitutionality of election law will stifle voting rights and ultimately lead to widespread voter suppression.

B. The Purcell Principle, Its Progenies, & Voter Suppression

The Purcell principle, even when constitutional and statutory violations are present, precludes voters from challenging election laws when election day is imminent.^[114] David Gans, writing for the American Constitution Society in his article, The Roberts Court, The Shadow Docket, and Unraveling of Voting Rights Remedies, states that the “Purcell principle . . . establish[ed] a hard-and-fast rule that lower courts should not enjoin voting changes close to Election Day, even when doing so is necessary to vindicate the right to vote and prevent constitutional violations.”^[115] In addition, Gans recognizes that Purcell fundamentally departs from the very reason that equitable principles exist—to prevent inequity—and these equitable principles should hold strong.^[116] Moreover, Gans dissects the perils and differences of making law through the shadow docket and the merits process by stating:

The Supreme Court’s regular decision-making process is slow and methodical. The Court carefully selects a case for full review, receives full briefing both from the parties and amici, and hears oral argument, peppering the attorneys with questions that force them to consider their case from every possible angle. And at the end of this process, the Court explains its reasoning in an opinion. The Supreme Court’s decision-making process on stay orders could not be more different. The Justices’ consideration and decision-making is rushed, briefing takes place on a very expedited schedule, which often precludes briefing by friends-of-the-court, and there is no opportunity for oral argument. These shadow docket orders are often accompanied by cursory opinions or no reasoning at all.^[117]

Purcell was the first step in a new line of cases that used the Purcell principle as a launch-pad to close the courthouse doors on voters’ ability to seek equitable relief for voter suppression laws.^[118] Had the Court proclaimed the Purcell principle by undergoing the merits process of full briefing and oral arguments, Purcell’s disposition would likely be more mechanistically sound and rooted in clearly articulated legal principles; but instead, the Purcell principle was announced from the “shadows.”^[119] As a result, the Purcell principle lacks the legal legitimacy and weight of reasoning that results from the traditional merits docket.^[120] Purcell should be reconsidered and rigorously reviewed on the merits, and furthermore, the Purcell principle should be overruled through the merits process, or in the alternative, traditional review will force the Court to narrow and anchor its reasoning in firmly rooted legal principles.^[121]

In Purcell’s per curiam opinion, the Court vacated an “interlocutory injunction entered by a two-judge motions panel of the Court of Appeals for the Ninth Circuit.”^[122] To understand how Purcell came before the Court, its complex and important procedural history must be explained.^[123] In 2004, the voters in Arizona approved Proposition 200, which was a “measure sought to combat voter fraud by requiring voters to present proof of citizenship when they register to vote and to present identification when they vote on election day.”^[124] According to Purcell, Proposition 200 does not necessarily turn away all persons without identification because voters may cast a “provisional vote” and return within five business days, with proper identification, for the ballot to be officially counted.^[125] Under Section 5 of the Voting Rights Act of 1965 (“VRA”), Arizona submitted its new voting standards to the Department of Justice (“DOJ”) and the Attorney General of the United States for preclearance; the Attorney General precleared Proposition 200 on May 6, 2006.^[126] In May 2006, plaintiffs consisting of members of the community and various Native American tribes subsequently filed suit in the United States District Court for the District of Arizona challenging Proposition 200 under the VRA.^[127] On September 11, 2006, the district court denied plaintiffs’ request for a preliminary injunction and “did not at that time issue findings of fact or conclusions of law,” withholding those findings until October 12; an appeal to the Ninth Circuit followed.^[128] However, the Clerk of the Court of Appeals set the briefing date for November 21, well after the election date of November 7.^[129]

The later briefing date prompted plaintiffs to request an injunction pending appeal because the briefing date would be after the election.^[130] The emergency request was assigned to and reviewed by a two-judge panel in the Ninth Circuit.^[131] On October 5, the two-judge panel issued a four-sentence order enjoining Arizona from enforcing Proposition 200 pending disposition; the court subsequently denied a motion for reconsideration four days later.^[132] The State of Arizona subsequently appealed the injunction entered by the two-judge panel to the Supreme Court.^[133] The Supreme Court reviewed the emergency application and reversed the Ninth Circuit’s two-judge panel.^[134] The Court’s reasoning in Purcell acknowledged that the State has a “compelling interest” in preserving the integrity and process of elections.^[135] Though “[n]o bright line separates permissible election-related regulation from unconstitutional infringements on First Amendment freedoms[,]” the Court arbitrarily and ironically established its own bright-line rule: there will be no constitutional voting challenges to election laws ahead of an upcoming election, regardless of its constitutionality.^[136]

The Purcell Court concluded that “[g]iven the imminence of the election and the inadequate time to resolve the factual disputes, our action today shall of necessity allow the election to proceed without an injunction suspending the voter identification rules.”^[137] The Court’s conclusion has a direct line to its earlier reasoning that “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.”^[138] The Court’s conclusion that voter confusion will result if Proposition 200 was enjoined is inapposite because there was already a previously used voting scheme in place that voters were accustomed to.^[139] The Purcell Court should have affirmed the Ninth Circuit’s order enjoining Proposition 200 and kept the status quo of the previous voting scheme, however, the Court “treated the [S]tate’s emergency application as a petition for a writ of certiorari, granted it, and summarily vacated the Ninth Circuit’s injunction.”^[140] Moreover, the Court should have treated the State’s emergency application as a petition for certiorari and put it on the calendar for the next term to fully flesh out the merits and declare a bright-line rule that is more definitive than “too close” to an Election Day.^[141] Further, by applying heightened harm, the Court would balance the equities relating to the risk of voter disenfranchisement and the impact that marginalized groups will face from increased voter ID regulations. Such equitable balancing would expose the Purcell principle as weak non-mandatory authority, given its failure to conduct any meaningful equitable analysis.

C. Identifying Purcell’s Per Curiam Signal & Its Consequential Legacy

The result of Purcell is a series of cases whose reasoning, or lack thereof, have led to the further abridgment of the right to vote and currently waters the fiery spirit of many voting rights challenges across the United States.^[142] Under Purcell’s regime, litigants opposing disenfranchisement will likely ask the appellate court for a “stay” of a lower court order if the lower court ruled against them on the grounds that the challenge was “too close” to election day.^[143] Under Purcell, litigants will not have the opportunity to stay orders or receive relief because challenges are effectively chilled, meaning that meaningful challenges to voter disenfranchisement, even when meritorious, are prima facie barred.^[144] Even with the specter of voter disenfranchisement looming over the Court, the Purcell principle has survived several trips to the Supreme Court and is continuously affirmed.^[145] Two major voting rights cases, Veasey v. Perry^[146] and Republican National Committee v. Democratic National Committee,^[147] have both referenced the Purcell principle when dismissing challenges to local elections as election day looms.^[148]

In 2014, the Court issued a ruling in Veasey v. Perry and upheld the Fifth Circuit Court of Appeal’s decision disallowing the challenge of a Texas Voter ID law that was found by the lower court to be unconstitutional.^[149] The Court did not provide reasoning for its majority opinion and denied the petitioner’s application to vacate the stay issued by the Fifth Circuit.^[150] Justice Ginsburg dissented to this ruling and was joined by Justice Sotomayor and Justice Kagan.^[151] According to Justice Ginsburg, “[t]he fact-intensive nature of this case does not justify the court of appeals’ stay order; to the contrary, the Fifth Circuit’s refusal to home in on the facts found by the district court is precisely why this Court should vacate the stay.”^[152] The Fifth Circuit’s refusal to give deference to lower court findings portrays a departure from Purcell’s mandate of deference to the fact-finding of lower courts, and the Court has given the Fifth Circuit’s departure a stamp of approval.^[153] Veasey signals that voting jurisprudence has effectively gone rogue with little to no signs of consistency; the Court’s lack of consistency in applying its own standard will result in circuit courts splitting and dispensing their own version of various principles.^[154] If the Court makes major doctrine procedurally, then its application should remain consistent, and the Court should subsequently enforce that standard to promote uniformity.^[155] In Republican National Committee v. Democratic National Committee, the Court came to the same conclusion as Veasey by intervening and staying a lower court’s order to extend the deadlines for the receipt of absentee ballots and ballot requests in Wisconsin’s statewide election.^[156]

Purcell and its inconsistent progeny directly exemplify the problems of the shadow docket through the weaponization of emergency applications to procedurally manufacture new major doctrine, especially on issues affecting voting rights.^[157] The Eleventh Circuit has also specifically highlighted the problems with the Purcell principle, making it essential to identify its per curiam signal to guide lower courts and help litigants navigate the ever-changing legal landscape surrounding voting rights.^[158]

Professor Zina Makar provides a workable categorial standard to identify per curiam signals under the doctrine of qualified immunity; this Note argues that these categories of identification can be applied broadly beyond qualified immunity to guide both lower courts and practitioners alike.^[159] Categorizing per curiam signals prevents confusion for all parties involved in analyzing Court opinions—the inability to identify per curiam signals is harmful for our legal system.^[160] For example, the Court’s order of injunction issued in Wheaton College was “a four-paragraph unsigned opinion that left the legal standard and its legal basis a mystery.”^[161] The reasoning for the Court’s ruling in Wheaton College was virtually unidentifiable.^[162] The lack of transparency and identification in the Court’s emergency orders undermines the institution as a whole and creates a culture of confusion in the lower courts, so decisions must be categorized.^[163] Identifying the per curiam signal of Purcell is essential to understanding whether it is a legally sound “major doctrine” under the regime of election law or just a “disruptive” anomaly that is ultimately unworkable.

The per curiam signal that Purcell likely falls under is the disruptive signal.^[164] Purcell is likely a disruptive signal because it directly led to “unintended consequence[s] as a result of the per curiam outcome being misconstrued by lower courts.”^[165] The Purcell Court clearly erred in giving its stamp of approval to the Fifth Circuit’s interpretation of Purcell because no deference was given to the district court’s fact-finding—the very standard that Purcell demanded.^[166] The unintended consequences of Purcell have been disruptive to civil rights and as a result precluded voter challenges to election laws—Purcell’s progenies follow the same disruptive path like the tail of a hurricane.^[167]

Since heightened harm is rooted in equitable principles, its application will effectively transform Purcell from a “disruptive signal” to a “heuristic signal.”^[168] Identifying Purcell as a “heuristic signal” is proper because “this particular type of signal is more forceful [and] reinforces principles of the law that may not necessarily [have] been intended to [be carried] forward to future applications.”^[169] A quick-hand summary to describe the law is exactly what Purcell embodies, thus its limited reasoning is used as a “mental shortcut . . . [which] can often be distracting and encourage lower courts to shift the burden of a factual analysis.”^[170] Further, “[r]eliance on such statements that have little explanation and act as conclusory statements should be limited as they result in inconsistent applications across cases and circuits.”^[171] The conclusion in Purcell not only has little explanation, but it is also conclusory, so if identified as a “heuristic signal,” its application should be limited in scope when applied to voting rights to prevent lower court inconsistency.^[172]

D. Purcell’s Relationship to Other Landmark Voting Rights Cases

Because Purcell dealt a massive blow to voting rights, safeguards need to be enacted so the Court does not continue to weaken the people’s political power.^[173] The Roberts Court has continued to intervene in voting rights disputes and strike at the heart of democracy without a sound legal basis anchored in authority.^[174] However, Purcell is not the first time the Court has intervened in voting—some of the most well-known examples of Court interventions relating to voting rights are: Bush v. Gore,^[175] Shelby County v. Holder,^[176] and Abbott v. Perez.^[177] Although Bush v. Gore preceded the Roberts Court, the Roberts Court has maintained the legacy and theme of Court intervention in voting issues through Purcell.^[178] Purcell is distinguishable from Shelby County and Perez because those cases were decided through the substantive mechanisms of the traditional merits process.^[179] In contrast, Purcell and Bush are similar because the Court used procedure to formally intervene in voting matters.^[180] Purcell was decided through the procedural mechanisms of the Court’s emergency application process, and the Court ordered a procedural stay that affected the outcome of Arizona’s election; the Rehnquist Court in Bush similarly issued a stay that controversially affected the outcome of the 2000 presidential race between George W. Bush and Al Gore.^[181] Neither Purcell nor Bush were initially decided through the merits process; both cases also left large questions on challenges to election law.^[182] Edward Foley’s article, Symposium: The particular perils of emergency election cases, identifies that the procedural power of the Court can immediately affect outcomes of elections because:

The truly important decision in Bush v. Gore as a practical matter was not the merits ruling released on Tuesday, Dec. 12, 2000, but instead the stay decision issued the previous Saturday, Dec. 9. That stay surely ranks among the most consequential shadow-docket rulings the Supreme Court has ever issued. . . . The Dec. 9 stay is what stopped the Florida recount and made it impossible to complete a recount by the so-called safe harbor deadline, the date by which a state must complete its procedures for counting ballots in a presidential election if the state wishes to take advantage of the congressional promise to accept as “conclusive” the result of those procedures.^[183]

The procedural ruling of Bush rendered a recount inoperative, so even though a traditional merits ruling was released three days after the procedural ruling, a substantive decision in the opposite conclusion was already too late.^[184] Voting is inherently a sensitive and controversial topic, especially as it relates to access to the ballot box. Therefore, the current standard of irreparable harm should be reframed and heightened to reign in procedural mechanisms that are now commonplace within our voting schemes.^[185]

Part V: Unseen Consequences: The Office of the Solicitor General, the Executive Branch, and the Need for Effective Procedural Recalibration

Professor Vladeck, in The Solicitor General and the Shadow Docket, also highlights the unique relationship between the Solicitor General, the Court, and the shadow docket.^[186] The relationship between the Solicitor General’s Office and the Supreme Court is a crucial aspect of the judiciary, so much so that the Solicitor General is also often referred to as the “Tenth Justice.”^[187] The Office of the Solicitor General is the fourth-ranked official within DOJ and, under statute, must be “learned in the law.”^[188] The Solicitor General is responsible for representing the interests of the United States on appeal before the Supreme Court, and, similar to the Office of the Vice President, has official duties in multiple branches of government.^[189] This representation encompasses filing emergency appeals, arguing cases on the merits, and writing opinions as a “friend of the court,” on behalf of the government when not directly involved in a matter before the Court.^[190] The Solicitor General, however, like any institutional actor, is open to political pressure based on the policy objectives of a particular administration.^[191] Depending on the stance of a presidential administration, the Solicitor General may seek to litigate certain issues, which can also lead to the politicalization of the emergency docket; in other words, the stance of the Solicitor General can wax and wane simultaneously with changes in the ideas of the executive branch.^[192] For example, an administration can use the Court’s emergency docket to aggressively pursue or defend policy goals; if a lower court ruling unfavorably enjoins a policy objective, the administration can seek to “stay” the lower court order to maintain the status quo by claiming there is an irreparable harm present to the government.^[193] This means that the Solicitor General has the ability to appeal specific cases that the current administration believes are essential to its policy goals and initiatives.^[194]

Moreover, an aggressive executive branch can focus on certain issues and fast-track unfavorable opinions to the Supreme Court through emergency petitions.^[195] Through tracing the use of the Court’s emergency docket by Solicitor Generals through the Bush, Obama, and Trump administrations, Professor Vladeck’s data reveals Trump’s first administration as “far more aggressive in seeking to short-circuit the ordinary course of appellate litigation[.]”^[196] This leads to the conclusion that an aggressive presidential administration can lean on the Solicitor General to score political points and present emergency petitions that can negatively impact civil rights.^[197] Worse still, even without an aggressive executive, the Court continues to block civil rights groups’ requests for relief through the shadow docket; suits challenging voting rights are a major, controversial issue that has and continues to dominate the emergency docket.^[198] The politicization of the emergency docket will have an overarching impact on civil rights beyond voting, resulting in political, ideological, and theoretical differences that drive positions such as the “unitary executive theory,” which is being implemented to establish uniform policy objectives of the president.^[199] The introduction of a new heightened standard of irreparable harm is also necessary to protect against theories like the unitary executive by providing a presumptive mechanism that “balances the equities.”^[200]

Part VI: A New Hope

Recalibrating the shadow docket to include a heightened harm standard rooted in equitable principles will enhance voting rights by applying the presumption of “inequity” against the state when there are facial challenges to election law. When this new standard is applied to the Purcell doctrine, the Purcell doctrine will be severely limited because it does not satisfy the equity that heightened harm demands, nor will it survive the presumption that major doctrine, which carries broad implications over civil rights, cannot be made through procedural vehicles. Because the Purcell doctrine will not survive the presumption of heightened harm, it logically follows that Purcell’s progeny will fail under a heightened presumption for the same reasons. As a result of heightened harm, voters who challenge a state’s voting proposition will be able to effectively challenge, but not completely kill, the proposition that would have otherwise gone into effect. If the Court determines that the challenge to the voting law is “too close,” then they should enjoin the challenged law and reinstate the previously administered standard. This would prevent voter confusion due to the familiarity with the process until oral arguments can be fully heard to determine whether the challenge has merit. This solution protects litigants who have a sufficiently ripe claim by maintaining the previous voting scheme until the case is fully heard on its merits. Additionally, a heightened standard will protect voters against actors who seek to take advantage of Purcell’s doctrinal preclusion by deliberately implementing voting laws that may seem to be neutral on its face but actually disenfranchise minorities en masse.^[201]

The heightened harm standard will also produce greater consistency in lower federal courts because judges will apply a uniform procedural presumption when faced with challenges to voting rights laws. This will allow not only the suit to remain alive, but the voting law to remain alive and be temporarily enjoined pending full briefing and oral argument on the merits. In addition, lower courts will be able to consistently identify per curiam signals due to this heightened presumption. Without a heightened standard, litigants face inconsistent lower court rulings—meaning that on a similar issue, one court could rule one way while another rule the opposite. This leads to consequences felt by lower courts, who look for guidance on rulings through well-reasoned orders and opinions from higher courts—the lack of guidelines ultimately harms litigants of various marginalized and underrepresented groups. The reframing of heightened harm will lead to greater transparency in Supreme Court decisions involving voting rights and dispel the specter of unconstitutionality by anchoring emergency docket rulings in a clear constitutional framework. As the Roberts Court fights to maintain its legacy and legitimacy, heightened harm would introduce a transparent standard that does not run afoul of Article III but reaffirms the principles of justiciability—and thus justice itself.