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1) I'm seeing a handful of left-leaning lawyers argue SCOTUS' decision in RNC v. DNC, the Wisconsin election case, was defensible & maybe wasn't that bad. So I want to explain why, yes, it really was that bad. Much of this thread will build on this piece. https://www.vox.com/2020/4/6/21211378/supreme-court-coronavirus-voting-rights-disenfranchise-rnc-dnc
2) SCOTUS relied primarily on its decision in Purcell v. Gonzalez, which held that courts should be cautious about making changes to a state's election rules as the election draws close. Purcell was unanimous, and most agree that some caution is warranted. https://www.vox.com/2020/4/6/21211378/supreme-court-coronavirus-voting-rights-disenfranchise-rnc-dnc
3) The question is HOW MUCH CAUTION is warranted. Should there be a blanket rule that no court should ever enjoin a state election law close election day? Or should judges be allowed to do so in unusual circumstances. https://www.vox.com/2020/4/6/21211378/supreme-court-coronavirus-voting-rights-disenfranchise-rnc-dnc
4) Basically, the question in RNC v. DNC boils down to whether Purcell is an inexorable command, or whether a hugely disruptive, unanticipated event (the coronavirus pandemic) can justify departures from the general presumption laid out in Purcell. https://www.vox.com/2020/4/6/21211378/supreme-court-coronavirus-voting-rights-disenfranchise-rnc-dnc
5) RNC v. DNC came very close to holding that the Purcell principle can NEVER be violated. Courts must defer to state law as an election draws nigh, no matter what. If there is an unexpected crisis, the only people who can address it are state lawmakers and other state officials.
6) Now, there are a number of obvious reasons why it is wrong to treat Purcell as an inexorable command and not as a more modest case that lays out a strong-but-rebuttable presumption against last-minute court orders. https://www.vox.com/2020/4/6/21211378/supreme-court-coronavirus-voting-rights-disenfranchise-rnc-dnc
7) Imagine, for example, that a hurricane hits Miami one week before the November election. Nearly the entire city evacuates. And almost no voters are around to actually cast a ballot on Election Day. https://www.vox.com/2020/4/6/21211378/supreme-court-coronavirus-voting-rights-disenfranchise-rnc-dnc
8) Now imagine Florida has a law saying the election MUST be conducted on a specific date, and voters seeking to vote absentee MUST request a ballot three weeks before that date. If these laws were applied as written, that would mean nearly all of Miami would be disenfranchised.
9) Florida has a Republican governor, a Republican legislature, and a Republican Supreme Court. And Miami is an overwhelming Democratic area, so Republicans make the decision to do nothing about this crisis because they WANT everyone in Miami to be disenfranchised.
10) In this circumstance, a sensible federal judge would rule that constitutional safeguards protecting the right to vote require Miami voters to be accommodated. That judge might, for example, extend the deadline for casting ballots. https://www.vox.com/2020/4/6/21211378/supreme-court-coronavirus-voting-rights-disenfranchise-rnc-dnc
11) But wait! Under the extraordinarily strong Purcell rule that the Supreme Court applied in RNC v. DNC, this judge can't do that. It's one week before the election. If Miami voters want to vote, they need to appeal to the GOP legislature. End of story.
Miami can suck it.
Miami can suck it.
12) This hypothetical I'm describing is basically what happened in Wisconsin. A natural disaster (the coronavirus) hit Wisconsin. That disaster disrupted voting very close to an election. A judge tried to fix the problem. Republicans on SCOTUS told Wisconsin voters to suck it.
13) There are, it's worth noting, several other reasons why a too-strong Purcell rule is very bad. Voting rights lawyers often do not become aware that a state law is causing problems until the election is upon us. https://www.vox.com/2020/4/6/21211378/supreme-court-coronavirus-voting-rights-disenfranchise-rnc-dnc
14) Suppose that a state makes what appears to be a minor tweak to the form required to obtain an absentee ballot. This tweak goes unnoticed until three weeks before the election, when a large number of black voters realize that they lack documentation required by the form.
15) Such a tweak would likely violate the Voting Rights Act, but lawyers would have no way of discovering this violation until actual voters started complaining. https://www.vox.com/2020/4/6/21211378/supreme-court-coronavirus-voting-rights-disenfranchise-rnc-dnc
16) A closely related problem is that lawyers cannot simply show up in court and proclaim that a new law disenfranchises black voters. They need EVIDENCE to prove that claim. So let's go back to the hypothetical law that I just mentioned regarding absentee ballot forms.
17) If a lawyer claims that this law will disenfranchise black voters too early before an election, a judge is likely to say "where is your proof?" And the lawyer won't have any because they can't point to actual voters who are being disenfranchised.
18) The lawyer needs to wait until the election is close and voters are actually having troubling getting ballots. Then the lawyer can present those voters as evidence that the law results in discrimination against black voters, and request an injunction. https://www.vox.com/2020/4/6/21211378/supreme-court-coronavirus-voting-rights-disenfranchise-rnc-dnc
19) But RNC v. DNC creates a Catch 22. If the lawyer sues too early, they will lose because they don't have evidence. If they take enough time to gather evidence, they will lose under the strong version of Purcell announced in RNC.
Heads, the voters lose. Tails, they also lose.
Heads, the voters lose. Tails, they also lose.
20) That's why RNC v. DNC is such an insidious decision. It imposes a barrier on voting rights cases that are literally insurmountable in many cases. There is never a right time to sue.
21) And it's all the more insidious because the technical nature of this rule fooled many otherwise thoughtful lawyers into thinking that RNC v. DNC maybe isn't all that bad. /fin https://www.vox.com/2020/4/6/21211378/supreme-court-coronavirus-voting-rights-disenfranchise-rnc-dnc
