Over the last two weeks, the federal judiciary has delivered a blunt message to Americans who stand to be disenfranchised in this year’s election: You’re on your own.
In a dizzying succession of rulings, courts are laying the groundwork for a chaotic Election Day. One appeals court allowed Wisconsin to reinstate its dramatic cutback on early voting in a startling opinion that explicitly authorizes lawmakers to manipulate election laws for partisan gain. Another appeals court blocked a lower court decision that protected indigent ex-felons’ ability to vote in Florida. The Supreme Court also delivered a one-two punch, first allowing Texas to impose discriminatory limits on mail-in voting, then reversing a decision that eased voting restrictions in Alabama due to the pandemic. Taken together, these moves indicate that a growing number of federal judges—and five justices on the Supreme Court—have simply abdicated their responsibility to safeguard voting rights. This election was already a fraught battle over the future of American democracy; now courts are retreating from the fight, leaving voters to fend for themselves.
Start with Wisconsin, the epicenter of the voting wars this election cycle. In April, in an instantly notorious 5–4 decision, the Supreme Court forced thousands of residents to choose between voting in person during a pandemic and forfeiting their right to vote. On June 29, the 7th U.S. Circuit Court of Appeals added insult to injury, greenlighting the state’s sharp curb on early voting. For years, Wisconsin’s local governments set their own election rules, and some allowed as many as six weeks of early voting—until Republican legislators set the outer limit at two weeks. A federal judge had repeatedly blocked this cutback, finding that it disproportionately affected racial minorities.
After inexplicably sitting on the case for more than three years, the 7th Circuit reversed that decision, letting the cuts take effect. Judge Frank Easterbrook’s opinion for the court announced a new constitutional rule: Lawmakers “are entitled to consider politics when changing the rules about voting,” he declared. In other words, Republican legislators can manipulate election laws to make it more difficult for Democrats to cast a ballot. Easterbrook derived this alleged principle from Rucho v. Common Cause, in which SCOTUS held that federal courts can’t stop partisan gerrymandering. But Rucho merely found that federal judges are incapable of determining when political redistricting “goes too far”; it has nothing to say about other election laws, even if conservative judges desperately wish it did.
The news out of Florida, another swing state infamous for assaults on suffrage, is no better. In May, U.S. District Judge Robert Hinkle held unconstitutional a Florida scheme that forced ex-felons to pay court-imposed fines and fees before regaining the right to vote. This scheme effectively imposed a poll tax, denying people the ballot unless they had enough money to pay court debt. Moreover, it was totally unworkable: Florida has no idea how much formerly incarcerated people owe and no way to find out. As a result, Hinkle explained, even those ex-felons with the means to pay off court debt could never really be sure they paid in full. And if they miscalculated, they could be prosecuted and imprisoned.
The Supreme Court believes that making voting easier might somehow confuse voters.
Hinkle devised a system wherein formerly incarcerated people could ask the state to reveal how much court debt they owe. If the state could not provide an answer within three weeks, the individual regained the right to vote. Furthermore, no one could be denied the ballot simply because they couldn’t afford to pay their court debt, since wealth-based disenfranchisement violates the constitution.
On Wednesday, the 11th U.S. Circuit Court of Appeals blocked Hinkle’s order, allowing Florida to resume denying registration to people convicted of felonies.And, in a highly unusual move, the court accepted Florida’s request to hear the case en banc before a three-judge panel had the opportunity to hear it. There is only one plausible reason the court, which Donald Trump recently flipped, would’ve taken this rather shady step: The conservative majority likely worried that a three-judge panel would include two liberals who would uphold Hinkle’s order, keeping the Florida scheme on hold through the November election. So they short-circuited the appeals process, handing the state an instant victory by lifting Hinkle’s injunction and a probable long-term victory by siding with Florida down the road.
These appeals courts appear to be taking their cues from the Supreme Court itself. In June, the court declined to block Texas’ tight restrictions on mail-in voting, which force most residents under 65 to vote in person while allowing all elderly residents to vote absentee. (Fear of contracting COVID-19 does not provide a valid excuse to vote by mail.) This law plainly discriminates on the basis of age in violation of the 26th Amendment. Yet no justice saw fit to intervene and forbid the state from imposing special burdens on younger voters.
Then, on Thursday, the Supreme Court blocked an injunction that eased restrictions on Alabama voting procedures in light of the pandemic, a rash and baffling 5–4 decision. Alabama law makes it extremely difficult for elderly or immunocompromised people to avoid crowded polls: To vote absentee, they must have a notary or two witnesses sign their ballot, and provide a copy of their photo ID. Some Alabama towns tried to ease this burden by introducing “curbside voting,” letting voters cast ballots from their cars. But Secretary of State John Merrill banned this practice statewide under dubious legal authority.
In a fact-laden, 77-page opinion, a federal judge barred Alabama from enforcing these absentee voting limitations against sick, disabled, and elderly voters. He also lifted the ban on curbside voting. A three-judge panel for the 11th Circuit let that decision stand in a thorough, 28-page opinion. Two judges noted that the plaintiffs “presented evidence that more than 50 people from Wisconsin who recently worked or voted at polling stations there in the midst of the pandemic tested positive for COVID-19.” Nevertheless, five Supreme Court justices decided to jump in and restore Alabama’s draconian laws.
Why? The majority did not deign to explain itself, but it presumably relied on the “Purcell principle.” This doctrine bars courts from altering voting laws shortly before an election under the theory that last-minute changes might “confuse” voters. In the hands of a conservative court, the Purcell principle has morphed into a perverse rule that voters always lose. SCOTUS consistently holds that voter suppression laws don’t burden the constitutional right to vote. Yet when a court tries to alleviate voter suppression laws, SCOTUS stops it—because making voting easier might somehow confuse voters. Put simply, this Supreme Court believes that voter suppression laws don’t burden the right to vote, but decisions blocking those voter suppression laws do.
The message of these decisions is clear: Federal courts will not preserve Americans’ right to vote in a free and fair election. Even as a pandemic sweeps the nation, many of these courts see no problem with election laws that compel citizens to risk coronavirus infection in order to cast a ballot. When voters ask courts to protect the franchise, judges slam shut the federal courthouse doors. When states ask courts to protect disenfranchisement laws, judges are all too eager to step in. The federal judiciary is leaving voters at the mercy of state lawmakers who are hellbent on stopping certain citizens from participating in democracy.
