Justice Jackson found a bright side. I am not sure I see one.

By Marc Elias

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I am not an optimist by nature. When it comes to Republicans’ willingness to skirt the law, violate norms and disregard precedent, I don’t dwell on what might go right. I obsess over what can go wrong.

So when the U.S. Supreme Court ruled on Friday that the Trump administration can resume using its voter suppression database to help Republicans remove voters from the rolls, I called it what it is: a terrible decision that will empower election deniers at a time when our elections are already under attack.

Since then, some lawyers and pundits have argued that the decision’s impact will be quite limited. They point to a passage in the dissent suggesting there might be “a bright side to today’s opinion.”

Because federal law bars mass removals of voters in the 90 days before Election Day, Justice Jackson argues, the ruling “will likely have minimal short-term impact, as States will at most conduct individualized voter-roll maintenance using the modified SAVE system.”

Let me begin by saying that I agree with Justice Jackson: federal law prohibits mass voter purges close to an election, and only individualized removals are permitted. I also agree with her that even these individual removals pose concrete harm to lawful voters and undermine free and fair elections.

But Justice Jackson was writing in dissent. The majority opinion is far cagier on this question. Indeed, the Court has agreed to hear a case later this year that could test exactly this interpretation of federal law.

Justice Jackson’s optimism rests on the majority’s acknowledgment that the quiet period “limits the potential impact” of its ruling. But read the rest of the passage, and the bright side dims considerably.

The majority went on to say that the lower court’s order prevented “the Federal Government from using the modified SAVE program to conduct individualized inquiries, which are permitted under federal law during this period.”

Then, in a footnote, the conservative justices added that they will consider the scope of the quiet period in a separate case scheduled for argument later this year, and that “we do not need to decide it here.”

In that case, Republican National Committee v. Mi Familia Vota, which the Court will hear in December, the RNC, backed by the Trump Justice Department, argues that Arizona may cancel the registrations of voters it deems noncitizens during the 90-day quiet period.

With little more than a month to go until Election Day, my job is to worry.

Put simply, Justice Jackson’s “bright side” depends on Republican state and local election officials following federal law, and on the Supreme Court holding firm if election deniers try to purge voters.

If the past is prologue, the signs are not hopeful. 

In 2024, the Supreme Court let Virginia resume a noncitizen removal program launched on the first day of the quiet period, over the objections of the district court and the 4th Circuit. It never explained why.

For its part, the Trump Justice Department has already told a federal appeals court that it does not read the quiet period the way Justice Jackson does. In March, it argued that the quiet period “does not apply to efforts by a State to remove noncitizens who could never have qualified as ‘voters.'”

Under that theory, systematic purges of alleged noncitizens could continue right up to Election Day. 

This is exactly what the DOJ is arguing in Mi Familia Vota. It asserts that federal law does not protect people “who were ineligible and improperly registered to vote in the first place.” and it insists that “systematic checks within the 90-day window are the only way” for states to keep noncitizens off the rolls.

Admittedly, when this case was before the D.C. Circuit, the DOJ conceded that the “90-day limitation was ‘fatal'” to a claim of imminent harm premised on systematic voter-roll maintenance. But this DOJ is shameless, and it will reverse course whenever it believes doing so will help Trump suppress the vote. 

It already has. 

In its Mi Familia Vota brief, the DOJ admits that it “previously construed the NVRA the same way” that Justice Jackson and I do. But after Trump came back into power, the DOJ says that now it  “has reached the opposite conclusion.”

Justice Jackson is right about the law. If I had confidence in Republican election officials, the Justice Department and the conservative Supreme Court majority, I would be less worried.

But I don’t.

With little more than a month to go until Election Day, my job is to worry. I am paid to look around corners and see what might go wrong, not simply to assume that everything will go right.

Donald Trump knows his party is going to lose this election. He has escalated his attacks on our elections at every stage. Last-minute voter purges and mass voter challenges are not out of the question.

I am confident we have the legal tools to fight back, but I don’t accept that these threats won’t materialize.

That is why I don’t see the bright side. The quiet period is only as strong as the officials who obey it and the courts that enforce it. I trust neither.

Hoping for the best is not a strategy. Being ready to fight is.

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