Watching the conservative majority of the Supreme Court put its thumb on the scale for the GOP just a few days out from the election is not a great feeling.
But letting Virginia undertake a blatantly illegal voter purge is nothing new for this court. The Republican appointees are big fans of voter suppression and any other moves that help ensure permanent GOP rule, and if Vice President Kamala Harris doesn’t prevail on Tuesday, this will get worse. Of course, Democrats also have to hold the Senate. And enact court reform.
There’s no question that Virginia’s move to throw 1,600 registrations off the voter rolls is illegal under federal law. The National Voter Registration Act bans any systematic removal of ineligible voters within 90 days of an election. This just makes sense. Having states muck around with their voter rolls, even with benign intentions, can throw an election into chaos.
The systematic removal of ineligible voters isn’t something where local election officials snap their fingers and exactly the right people are taken off the rolls. It’s a lengthy process of inspecting voter registration and DMV information, then contacting voters suspected to be ineligible and giving them time to confirm they are eligible. If a state tries to do this on the fly, the chance eligible voters will get swept up in the last-minute purge is high. Hence, the quiet period is 90 days out.
But Glenn Youngkin, the fleece-vest-swaddled right-wing governor of Virginia, came up with a way to do it anyway.
This isn’t a systematic purge of ineligible voters, Youngkin explained, because it’s targeting only noncitizens—who were never eligible to vote in the first place. You read that right. This legal theory is based primarily on insisting that “ineligible” does not somehow mean the same thing as “never eligible.”
With a theory this flimsy, it’s not surprising that Youngkin needed a big assist from six unelected judges in black robes. Remember when conservatives insisted that having the Supreme Court decide things, rather than legislatures and voters, was the biggest crime against democracy imaginable? They threw that out the window once they realized the real path to attain and keep power was to pack the courts with people who would ensure they would.
Back in 2022, this same Supreme Court happily lent a hand to red states that wanted to use gerrymandered, racially biased electoral maps. Those rulings may have tipped the House for Republicans in that election cycle.
But being blatantly in the tank for the GOP wouldn’t be nearly as easy had the conservative justices also not committed themselves to the shadow docket.
Legal scholar Steve Vladeck, who wrote a whole book about it, has explained the dangers of the shadow docket, which is when the justices decide something in a brief, unsigned order without formal briefing or oral argument. These rulings happen in the shadows, with none of the public record that comes with regular cases. Litigants don’t have to explain their position in any detail, and the court often doesn’t explain its decision at all.
The right has figured out that this is an excellent way to get their preferred outcomes without a lot of heavy lifting or public scrutiny of their positions.
That’s why Orange County, California, ran to the court in 2020 to get a swift, unexplained ruling upholding their wildly inhumane and stupid refusal to provide incarcerated people with the smallest of protections during the COVID-19 pandemic.
Same with the Roman Catholic Diocese in Brooklyn, New York, because they didn’t want any caps on church attendance as a virus ravaged the planet.
Texas got a big shadow-docket ruling in 2021 that let its bounty-hunter-style abortion ban go into effect despite being illegal under Roe v. Wade, which was still in effect.
But it was most likely the shadow-docket gift to Alabama in 2022—when the court let that state proceed with using its racially gerrymandered redistricting maps—that made Virginia so sure it could squeeze a last-minute win out of this court.
Youngkin’s voter purge isn’t just stupid and overbroad—there’s already evidence it’s scooped up people who are actually eligible to vote. It’s also nothing but pandering to Donald Trump, who has made lies about undocumented voters central to his campaign.
Youngkin vied to be Trump’s vice presidential pick in 2024 and is likely setting himself up for a 2028 presidential run by burnishing his far-right bona fides with moves like this. For his efforts, Youngkin got a pat on the head from Trump, and now, thanks to the Supreme Court, the governor’s got his illegal voter purge.
The court is also tipping its hand here, showing a willingness to intercede in the election in a way that favors Republicans. It certainly feels like an invitation to GOP litigants to tee up frivolous election challenges in the event of a Harris win.
The court turned away Trump’s election-disputing litigation in 2020, but who can say whether that will hold this year? Blessing a brazenly illegal voter-suppression move the week before the election does not inspire confidence that the court will do the right thing when the need arises.
The only possible path out of this stranglehold on the courts is a Harris victory on Tuesday. And even that is merely necessary, not sufficient.
Democrats have to hold onto the Senate, too, so that Harris can get judicial nominees through. Democrats also have to come together on court reform, something Harris appears more amenable to than President Joe Biden.
Without an expanded Supreme Court, more judges at the lower courts, and an enforceable ethics code for Supreme Court justices, we will be unable to ever break the stranglehold that conservatives have on the court. This is what’s truly on the ballot this year.
