This article is part of a symposium on the Supreme Court’s “shadow docket.”

Edward B. Foley holds the Ebersold chair in constitutional law at Ohio State University, where he also directs the election law program. His latest book is Presidential Elections and Majority Rule.

The truly important decision in Bush v. Gore as a practical matter was not the merits ruling released on Tuesday, Dec. 12, 2000, but instead the stay decision issued the previous Saturday, Dec. 9. That stay surely ranks among the most consequential shadow-docket rulings the Supreme Court has ever issued. Another plausible contender, at least among election cases, is the in-chambers stay that Justice Hugo Black granted to seal Lyndon B. Johnson’s victory in the race that propelled his career into the Senate — a story vividly told with all its inherent drama in Robert Caro’s award-winning Means of Ascent and summarized for its historical relevance in relationship to Bush v. Gore in Ballot Battles.

The Dec. 9 stay is what stopped the Florida recount and made it impossible to complete a recount by the so-called safe harbor deadline, the date by which a state must complete its procedures for counting ballots in a presidential election if the state wishes to take advantage of the congressional promise to accept as “conclusive” the result of those procedures. The deadline proved decisive when it came time to determine whether Florida would have another chance to resume the recount — the answer was no, according to the Supreme Court’s majority in the Bush v. Gore merits decision — but the clock would not have run out if the court had been willing to let the recount finish over the weekend and then see if a remedial adjustment in the vote totals might be needed.

This basic point — that preliminary rulings, made on an emergency basis, can be at least as important as the court’s formal opinions — applies in other areas of law. For example, in litigation over Cleveland’s school voucher program (for which — disclosure — I was responsible on the defendant’s side as state solicitor of Ohio), the crucial decision as a practical matter was an emergency stay of a preliminary injunction that the Supreme Court granted in 1999, permitting students to receive their scholarships while the litigation of the program continued. The merits ruling upholding the program did not come until three years later. That ruling was unquestionably significant — but for the lives of the children involved it would have seemed somewhat hollow if it had come after having lost forever the schooling to which they had been entitled in the interim.

While the point applies in general, it has special force in the election context. Few areas of law are as consistently dominated by one crucial date. For any lawyer who has had experience with both death penalty and election cases, the similarity between their emergency-stay litigation is obvious. Election Day has a finality within its own domain as fixed as, or maybe even more fixed than, scheduled executions do in theirs. That means that many election law disputes that reach the Supreme Court are effectively resolved on the shadow docket (and why reading Caro’s Means of Ascent is a smart move for litigators).

Emergency election litigation has the added peril of being fraught with potential partisanship — or at least the appearance thereof. Emergency stay applications in death penalty cases undeniably take their toll, but the strong divisions among the justices in these cases can be understood as purely jurisprudential. More “conservative” and more “liberal” justices simply have a different view of the role that the Constitution and federal courts play in policing the states’ infliction of capital punishment.

But in the election context, good-faith jurisprudential differences can take on inevitably partisan overtones. This became acutely apparent in April of this year in the first in a series of shadow-docket applications relating to the 2020 election. The application involved Wisconsin’s primary election, and it sought an emergency stay of a district court’s order that – in light of the coronavirus pandemic and the resulting surge in absentee voting – had extended the deadline by which election officials had to receive absentee ballots in order for them to be counted.

The name of the case at least had the virtue of candor: Republican National Committee v. Democratic National Committee. The partisan cleavage between the two sides – with the Republican Party opposing one element of the extension (letting ballots be cast, and not just mailed, after the statutorily designated Election Day) and the Democratic Party supporting it — could not have been more upfront. When the case was filed this way, it could not have been yet known that the justices themselves would divide along the same apparently partisan lines. If the court had decided the case unanimously, or even in any way differently from how it actually did, the decision could have proven Chief Justice John Roberts’ point that there are no “Obama judges or Trump judges” — only judges doing their job deciding cases. But when all five Republican appointees on the court lined up in support of the RNC, and all four Democratic appointees lined up on the other side, the chief’s claim became demonstrably harder to believe. This point, to emphasize, is one of perception: Even assuming that all the justices were acting in good faith based solely on their fundamentally divergent jurisprudential perspectives, the fact that this jurisprudential divergence was fully congruent with the different partisan backgrounds of the justices inevitably created an awkward appearance in an election case.

Of course, what was worse about Bush v. Gore was that the apparent partisanship of the decision seemed to run counter to jurisprudence. The five “conservatives” on the court embraced an equal protection interpretation, and methodology for reaching it, that seemed contrary to their basic jurisprudential commitments, and in doing so were supporting the candidate of the same party as the presidents who had appointed them to the court. Conversely, the four “liberals” on the court were advocating for a state’s autonomy over its electoral process seemingly inconsistent with their ordinary posture of vigorously protecting voting rights against state-based denials. Few observers thought that the result would have been the same if the case had been Gore v. Bush — that is, if everything had been identical except with Gore, not Bush, raising the equal protection claim that state officials were arbitrarily treating identical ballots differently in the same statewide recount. The unavoidable optics that partisanship, rather than principle, explains Bush v. Gore is a uniquely troubling stain on the court’s record of exercising its power of constitutional interpretation.

The current court inevitably must be mindful of this tarnished legacy. Roberts, in his opinion for the court in the 2019 gerrymandering case Rucho v. Common Cause, made clear by invoking the “political question” doctrine that he wanted to keep the court untangled from partisanship as much as possible. But RNC v. DNC, decided less than one year later, suggests that staying above the fray is not so easy.

The problem with the court’s shadow docket is that it is, by nature, so fast-moving. The justices have so little time to deliberate these appeals, and, as a result, it is easy to become overridden by instinct. Finding common ground, so difficult to do in normal situations, becomes virtually impossible when the verdict must be rendered immediately.

The court’s 4-4 split in the Pennsylvania case earlier this week is another indication of just how fraught this type of emergency election litigation can be. Chief Justice Roberts joined the three liberals on one side, with the four other Republican-appointed justices all willing to grant the GOP’s application to block a lower-court ruling that extended the deadline for absentee ballots to be received. With no opinions accompanying this order, one can only guess at the thinking of the various justices. Still, one imagines Roberts wanting to avoid another purely partisan ruling on an important issue from a presidential battleground state. Just two days later, however, the appearance of partisanship re-emerged with an emergency ruling allowing Alabama officials to reinstate a ban on curbside voting. The vote this time was 5-3, with Roberts joining the other conservatives.

The court is being called upon to make more major emergency decisions that could shape this year’s election. As of this writing, there are cases pending from Wisconsin and North Carolina, with potentially more to follow. And a ninth justice will shortly be joining the court. If future decisions concern the casting of ballots, it may be tolerable — even though undesirable — if they again feature an all-Republican majority ruling in favor of all-Republican applicants. At least decisions about casting ballots set the rules of the game before the play begins.

By contrast, if the court issues emergency decisions concerning the counting of votes, it will be much harder for the country to handle a straight party-line divide on the court, especially if this divide involves the court’s Republican justices effectively awarding the election to President Donald Trump. It will seem to be one more raw power grab.

How to avoid that?

Here’s one idea. Roberts, Justice Elena Kagan and Justice Neil Gorsuch have all shown signs of principled centrist tendencies recently, to varying degrees. Suppose they can get the court to agree to appoint a “special master” to be on call for emergency election litigation that might emerge after Nov. 3. Even better would be a three-judge “special master panel” modeled on labor-management arbitration. Either way, the idea is a neutral arbiter equally acceptable to both sides of the partisan divide.

In any event — and here’s the key point – Roberts, Kagan and Gorsuch would pledge not to diverge from the recommended outcome of the neutral arbiter unless they all agreed. That way, they could guarantee to avoid a purely partisan ruling in Trump’s favor and thus the inflammatory perception of a court-stolen election. It might be 7-2 in Trump’s favor, with Kagan reluctantly going along because of her pledge. Or it could be 5-4 for Joe Biden, with Roberts and Gorsuch joining the liberals. (It need not be an absolute pledge; it would suffice if the pledge would be to presumptively accept the neutral arbiter’s determination unless upon considered judgment that impartial verdict was for some reason intolerable.)

Neither split decision would be ideal — only a unanimous ruling from the court in a disputed presidential election would achieve that goal — but either would be better for the nation than a purely partisan split that gives Trump a second term.  That result would be hard for many Biden voters to accept the outcome as the rule of law.

Posted in Featured, Symposium on the Supreme Court's "shadow docket"

Recommended Citation: Edward Foley, Symposium: The particular perils of emergency election cases, SCOTUSblog (Oct. 23, 2020, 5:28 PM), https://ift.tt/34qPjiC