The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Chief Justice Roberts is a riddle wrapped in an enigma made of cellophane. He perplexes people until he acts, and once he acts, his rationale is completely transparent. The latest entry on the shadow docket illustrates this point. In a series of recent election cases, the Chief (almost certainly) voted to grant emergency relief. In each case, the lower court had issued some sort of injunction that altered the status quo before the election election. The Chief intervened to restore the status quo.
Today in RNC v. Common Cause, the Chief declined to intervene, because an injunction would disturb the status quo. In this case, Rhode Island and civic groups reached a settlement that would waive the requirement to have absentee ballots signed in the presence of two witnesses or a notary. The district court approved that settlement. And that rule was in effect for the June election. The RNC challenged the agreement, and lost in the lower court. The RNC then sought emergency relief from the Supreme Court. The order is a single paragraph:
The application for stay presented to Justice Breyer and by him referred to the Court is denied. Unlike Merrill v. People First of Alabama, 591 U. S. ___ (2020), and other similar cases where a State defends its own law, here the state election officials support the challenged decree, and no state official has expressed opposition. Under these circumstances, the applicants lack a cognizable interest in the State's ability to "enforce its duly enacted" laws. Abbott v. Perez, 585 U. S. ___, ___ n. 17 (2018). The status quo is one in which the challenged requirement has not been in effect, given the rules used in Rhode Island's last election, and many Rhode Island voters may well hold that belief.
The phrasing is a bit strange. The waived requirement (eliminating the need for two witnesses) was in effect for the June election. The "challenged requirement" (which required witnesses) was not in effect in June. Therefore, to keep the waived requirement in place is to maintain the status quo.
SCOTUSBlog provides some background:
The justices on Thursday morning turned down the Republicans' request. Although the Supreme Court rarely provides an explanation for its rulings in emergency appeals, the order denying the Republicans' request noted that this case was different from the Alabama case "and other similar cases where a State defends its own law" because the Rhode Island election officials supported the consent decree waiving the witness requirement, and no other state official had opposed it. Moreover, the court added, because the state had waived the witness requirement in its June election, that is the status quo, "and many Rhode Island voters may well hold that belief." Although brief, the court's explanation may have been intended not only to outline its reasoning in this case, but also to provide some guidance for lower courts in the election-law cases that are certain to come over the next few months.
This order is consistent with Jon Adler's observations about the Chief and injunctions: always maintain the status quo.
Going forward, if blue states and progressive civic groups reach favorable consent decrees, the Chief will not intervene.
Justices Thomas, Alito, and Gorsuch dissented. Justice Kavanaugh did not join the dissenters. Had he done so, it would have been obvious who was in the majority. Perhaps Justice Kavanaugh agrees with the Chief. Who knows?