October 8, 2020

Roberts Court Conservatives Use ‘Shadow Docket’ to Shut Down Voting Rights Suits

Contact: Nancy Rodriguez media@acslaw.org

Washington, D.C.  –  With less than four weeks left until election day and citizens actively attempting to cast their votes in the shadow of a deadly pandemic, voters’ rights are being stymied by the U.S. Supreme Court sidestepping legal challenges aimed at ensuring every vote counts, according to an Issue Brief published by the American Constitution Society today.

The Issue Brief, “The Roberts Court, The Shadow Docket, and the Unraveling of Voting Rights Remedies”, examines how the Roberts Court has been preventing courts from vindicating the right to vote in an election year by hinging its decisions on the 2006 Purcell v. Gonzalez opinion. The Purcell principle, that federal courts should be wary of issuing injunctions in voting rights cases close to an election, is now regularly cited by the Court to justify not stopping acts of voter suppression. David Gans, Director of the Human Rights, Civil Rights & Citizenship Program at the Constitutional Accountability Center (CAC), authored the brief.

“This brief is not only timely, but also predicts a terrifying erosion of our Democracy,” said ACS President Russ Feingold. “At a time when legitimacy of the Supreme Court is being called into question because of a hyper-partisan power grab by the Right during an election in the middle of a pandemic, the Roberts Court continues to act on partisan lines and shut the door to voters trying to protect their constitutional rights.”

This past term, the Roberts Court has expanded Purcell dramatically in a series of rulings, setting forth a very broad rule that, rather than providing relief to voters, closes the courthouse doors on them. Most notably, in April, in a 5-4 ruling in Republican National Committee v. Democratic National Committee, the Supreme Court’s conservative majority announced an expansion of the Purcell principle, forcing citizens in Wisconsin to choose between exercising their right to vote and protecting their health. The consequences were felt hardest in communities of color in cities such as Milwaukee, where 175 polling places were closed. Voters were left with only five polling places, requiring them to brave long lines at a time when a stay-at-home order was in place.

In a string of unsigned, unexplained orders this summer, the Supreme Court has taken similar positions. The Court has considered emergency motions in cases challenging voting or ballot access restrictions in Alabama, Florida, Idaho, Oregon and Texas. Each and every time, the Court sided with the state in unexplained orders, prompting Justice Sonia Sotomayor to take the Court to task for its pattern of repeatedly “condoning disenfranchisement” and “forbid[ding] courts [from] mak[ing] voting safer during a pandemic.” As she observed, Purcell has become an inflexible rule that sanctions voter suppression and prevents courts from playing their historic role in protecting constitutional rights.

In the Issue Brief, Gans lays out three ways the Purcell principle developed by the Roberts Court is flawed.

“The Supreme Court is supposed to vindicate our constitutional rights,” Gans writes. “But as a result of the Purcell principle, the Roberts Court is sending the message that it will not be on the side of protecting the right to vote and safeguarding our democracy. Purcell erodes our democracy and should be reconsidered.”


ACS believes that the Constitution is “of the people, by the people, and for the people.” We interpret the Constitution based on its text and against the backdrop of history and lived experience. Through a diverse nationwide network of progressive lawyers, law students, judges, scholars, and many others, we work to uphold the Constitution in the 21st Century by ensuring that law is a force for protecting our democracy and the public interest and for improving people’s lives. For more information, visit us at www.acslaw.org or on Twitter at @acslaw