As November’s presidential election nears, one legal question that arises is how involved the Supreme Court will get. The impending resolution of an emergency bid from the Republican National Committee and Arizona Republicans in a battleground state dispute could give us a sense this month of how the high court will handle requests to intervene this election season.
Republicans want the court to permit Arizona to enforce a state law that requires documentary proof of citizenship in order to vote. They’re challenging a federal appeals court panel’s approval of a district court injunction against the law. The GOP told the justices that the injunction “is an unprecedented abrogation of the Arizona Legislature’s sovereign authority to determine the qualifications of voters and structure participation in its elections.” Republicans are seeking an immediate pause of the injunction to the extent that it requires the state to (1) accept voter registration applications without documentary proof of citizenship and (2) allow voters who have not provided documentary proof of citizenship to cast ballots for president or vote by mail.
Notably, the three-judge 9th U.S. Circuit Court of Appeals panel approved the injunction over dissent from a Trump appointee, which could get at least some of the justices’ attention. Indeed, the application cites the dissent from Judge Patrick Bumatay, echoing what he deemed the unusual procedural history of the case, in which his appellate panel ruled differently than an earlier circuit panel. Bumatay wrote: “All the public can take away from this episode is that four judges of the Ninth Circuit have voted to partially stay the injunction here, while two other judges voted against it. The two judges prevail — not because of any special insight, but because of the luck of an internal Ninth Circuit draw.”
The more recent panel majority said that the earlier panel “overlooked ‘considerations specific to election cases’ and misunderstood the extent of confusion and chaos that would be engendered by a late-stage alteration to the status quo of Arizona’s election rules in apparent disregard of the Supreme Court’s admonitions in Purcell v. Gonzalez.”
But in their application to the justices, Republicans said it’s the more recent appeals court that used the Purcell case incorrectly, arguing that the Supreme Court “has repeatedly instructed that the Purcell principle bars federal courts from enjoining the enforcement of state election laws with an election impending.” So the outcome could hinge on which side the high court thinks has the better reading of this principle, an important one for election cases. A written response to the application from voting rights groups is due Friday. The application cited an Aug. 22 deadline, so we may learn by then how the justices will settle this challenge — and perhaps get a hint of what’s to come as we head toward November. Subscribe to the Deadline: Legal Newsletter for updates and expert analysis on the top legal stories. The newsletter will return to its regular weekly schedule when the Supreme Court’s next term kicks off in October.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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