Supreme Court’s Silence on Virginia Voter Purge Sows Confusion

Voting rights advocates criticized the US Supreme Court’s decision to allow Virginia to remove an estimated 1,600 residents from its voter rolls on the eve of the election as a misuse of the oft-criticized shadow docket.

Three days after the appeal landed before the justices, the court’s conservative majority Wednesday stayed lower court rulings that said the state’s purge violated a federal law that mandates a “quiet period” prohibiting the systematic removal of voters from the rolls 90 days before an election.

The court’s three liberals noted their dissent. But none of the justices explained their reasoning.

Without an explanation, advocates said there’s no way to know if the justices thought the lower federal courts were wrong on the law or if they were following the judicially created Purcell principle, which says courts generally shouldn’t make voting changes close to an election.

“I am totally confused by it all, frankly,” said University of Virginia election law professor Bertrall Ross.

Fast Pace

Recent criticisms of the court’s growing use of the emergency or “shadow” docket focus on the fact that these cases typically arrive on a tight schedule and are often resolved without explanation, leaving parties and lower courts with no guidance on what the law requires.

With regard to timing, the Virginia case arose out of an Aug. 7 executive order from Gov. Glenn Youngkin (R). The order effectively required daily removal of potentially ineligible voters from the rolls based on the Department of Motor Vehicles’ citizenship data. The process has been in place for years but previously required monthly purges, not daily ones.

A federal trial court Oct. 15 agreed with the Biden administration and voter groups that the policy violated the National Voter Registration Act’s quiet period. It ordered the purged voters restored and prevented the state from removing others under the policy.

The US Court of Appeals for the Fourth Circuit unanimously agreed on Oct. 27, and Virginia appealed to the Supreme Court the next day.

Chief Justice John Roberts gave the challengers one day to file a response before the court’s conservative majority put a hold on the rulings.

Unexplained Action

The court’s fast pace could explain why neither the majority nor the dissent explained their reasoning.

The issue arose days before the Nov. 5 election. “Certainty and finality are valuable,” Notre Dame election law professor Derek Muller said. “That means, unfortunately, reason-giving takes a back seat in the heat of the moment.”

But it also means that it’s impossible for voting experts to know if the Supreme Court disagreed with the lower courts that unanimously found the purge unlawful, or if the more procedural Purcell principle animated the court’s decision.

“We can make no presumptions about the reasons either way,” said Orion Danjuma, counsel at the advocacy group Protect Democracy.

“This is an example of a classic shadow docket decision,” Danjuma said, referring to criticism of an emergency docket almost exclusively reserved for last-minute death penalty appeals. The court’s shadow docket rulings expanded during the Trump administration, as the justices acted quickly to resurrect executive policies struck down by federal judges.

There’s “no reason to understand why the court is making its decision,” Danjuma said, and therefore “no logic to suggest that it was proper.”

Voter Confusion

Wendy Weiser, the vice president for democracy at the Brennan Center for Justice, said the decision is even more puzzling given that the court often does reference Purcell—even if only briefly—in rejecting federal court changes to voting rules close to an election.

Several justices mentioned the rule in explaining the court’s February 2022 decision to put on hold a lower court ruling requiring Alabama to redraw voting maps ahead of the midterm elections. The court in 2023 ultimately agreed that new maps should be drawn, undoing its earlier stay—but only after elections had taken place.

The decision not to cite Purcell in the Virginia case might be because the quiet period echoes the Purcell concerns, Weiser said.

The quiet period is intended to prevent last-minute purges that can disenfranchise voters and cause voter confusion, she said.

It “resonates with the Purcell idea that courts shouldn’t be issuing voter confusion rulings,” Weiser said.

Without an explanation, Danjuma said, “we just don’t know.”