The Supreme Court’s Disturbing Order to Effectively Disenfranchise Thousands of Wisconsin Voters

The majority opinion, which is unsigned, relies heavily on the Court’s previous decision in Purcell v. Gonzalez (2006). Purcell is by no means a famous decision. It received far fewer headlines than the Court’s decisions striking down much of the Voting Rights Act or permitting partisan gerrymandering. But it’s proved to be one of the greatest thorns in the side of voting rights advocates. And the Court’s decision in Republican cements Purcell’s status as one of the greatest obstacles facing a voting right litigator.

Briefly, Purcell held that courts should be reluctant to hand down orders impacting a state’s election procedures as Election Day draws nigh. “Court orders affecting elections,” the Court warned in Purcell, “can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase.”

There is some wisdom to this vague guideline. Voters may, indeed, be quite confused if a wave of court orders are handed down close to an election. For example, if the US Supreme Court were to declare, well after sunset on the eve of an election, that voters must mail their ballots by April 7 or be disenfranchised, such an order is likely to confuse some voters and lead to them being unable to vote.

In any event, there are good reasons why Purcell’s warning about courts deciding voting rights cases too close to an election should not be read as an inexorable command. For one thing, the consequences of a new voting law may not become apparent until that law is actually operating close to an Election Day. Voting rights advocates may not learn that voters are struggling to obtain absentee ballots, for example, until an election is close and many voters are complaining that they haven’t received ballots. If courts cannot intervene under these circumstances, many impediments to the right to vote will go unaddressed.