Why the Supreme Court Is Using a Controversial Legal Principle to Cherry-Pick Mail-In Ballot Rulings

3 min readThe Shadow Docket worked its magic once again on Monday evening, making common sense and precedent disappear. It has issued a ruling that is not a ruling, but a ragbag of sleight-of-hand, misdirection, and legal bafflegab guaranteed to sow confusion during the upcoming midterm elections. We’ll let the invaluable Steve Vladeck take over from here..... there are two different cases at the forefront of challenges to the executive order, both pending before Judge Talwani in the District of Massachusetts. One is California v. Trump (a challenge by blue states); the other is League of Women Voters of Massachusetts v. Trump (a challenge by private organizations/voters). Critically, Judge Talwani has issued injunctions against the executive order in both cases. But Monday’s Supreme Court ruling applies only to one of them—the one brought by the states. For unimportant procedural reasons, the League of Women Voters case moved a bit slower, and Judge Talwani’s injunction in that case remains in effect. Even though the Solicitor General had asked the Supreme Court to reach out and pour cold water on that injunction, too, I don’t see anything in the 10-page majority opinion that speaks to the validity of that injunction one way or the other....... turning to the Supreme Court’s actual ruling, the core of the majority opinion is that the blue states brought their challenge too soon. My own view is that both of the dissenting opinions (one by Justice Sotomayor, joined by Justice Kagan; and one by Justice Jackson) already had the better of this argument before the USPS issued its Final Rule last Friday. But to suggest today that these cases are premature is, to use a technical word, bollocks. It’s not going to matter, because the League of Women Voters case will almost certainly be “ripe.” But it’s still a ridiculous rationalization by the Court that I’ll try to write more about later this week.... the shadow looming over all of this is the “Purcell principle,” the idea that, as election day draws nigh, federal courts should stay their hand rather than issue coercive orders changing the rules for when and how people vote. Purcell is the source of significant controversy and criticism, almost all of it deserved. Among the charges are that (some of) the justices are ruthlessly inconsistent in when they do and don’t apply Purcell—leading to the worry that an injunction against the USPS Final Rule might be deemed “too close to the election,” and stayed under Purcell. That’s a genuine concern, and given the Court’s own repeated transgressions of the Purcell principle earlier this term in Texas, Louisiana, and Alabama, to hide behind it to allow the USPS Final Rule to go into effect would be as indefensible and anti-democratic a ruling as the Court has handed down in a very long time.As Vladeck shrewdly observes, the Court’s malleable attitude toward the “Purcell principle” is the real joker in the woodpile here. Somehow, the “Purcell principle” did not apply in the Court’s Callais decision which allowed Louisiana to cancel an election in which votes had already been cast. In her dissent on Monday, Justice Ketanji Brown Jackson called all of this “Kafkaesque,” which is a big-ass Harvard way of saying somebody’s thumb is on the scale again.