As Concerns About Voting Build, The Supreme Court Refuses To Step In

Danielle Lang, co-director for Voting Rights and Redistricting at the progressive Campaign Legal Center, says she agrees that in theory, refraining from disrupting elections at the last second is an “unremarkable” principle. But, in practice, it has become a “magic word … to get to a preferred outcome in election law cases,” she says. Thus, in Wisconsin, the court said, it was too late to change election rules. But in the Florida case, the court allowed the circuit court to upset the legal status quo, creating confusion about who was eligible to vote. That seemingly selective application of an otherwise uncontroversial principle has advocates like Lang worried, especially because the court seldom explains its reasoning very thoroughly in emergency decisions like these; instead, if there is any explanation at all, it is usually in a brief, unsigned opinion. “We need to get back to first principles” by also considering whether court orders create or alleviate voter uncertainty “rather than just narrowly looking at how many days before an election we’re at,” says Lang. Moreover, as Lang and other voting rights advocates point out, the first pandemic in a century is a natural and obvious exception to the general principle that courts shouldn’t intervene close to Election Day. “We are facing kind of unprecedented uncertainty in our country.” she says. “The court will have to grapple more with how to make sure that voters have confidence in the election come November.”

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