In voting rights lawsuits, timing matters immensely: when a lawsuit is filed, when relief for voters is granted and if it’s in time to prevent disenfranchisement in upcoming elections. However, a big question around timing remains unanswered in the legal community: When is it too close to an election to change voting laws? The heart of this question goes back to a six-page order released by the U.S. Supreme Court in 2006 that created a legal concept known as the Purcell principle. Even though the concept is intended to reduce voter confusion before an election, this “anti-confusion principle” may have created more harm than good since it was established.
What is the Purcell principle?
The Purcell principle is the idea that courts should not change voting or election rules too close to an election in order to avoid confusion for voters and election officials alike. The concept comes from a Supreme Court case, Purcell v. Gonzalez, in which the country’s highest court reinstated a previously blocked citizenship law in Arizona just weeks before the 2006 midterm elections.
The law at the center of the lawsuit required voters to provide proof of citizenship when registering to vote and voting in person. After the district court declined to block the law for the fall elections, the 9th U.S. Circuit Court of Appeals temporarily halted the enforcement of the law for the November midterm elections while it decided the merits of the appeal.
The state of Arizona appealed the 9th Circuit’s decision to the Supreme Court. On what is now generally referred to as the “shadow docket” — the Court’s docket to decide emergency requests to pause lower court orders that do not undergo full briefing or oral arguments — the Court reversed the decision of the 9th Circuit, thereby reinstating the proof of citizenship law two and a half weeks before Election Day.
The reasoning behind the Court’s decision was twofold. First, the unsigned opinion (meaning the public doesn’t know how the justices voted) outlined how the 9th Circuit did not explain its reasoning for temporarily blocking the law and did not defer to the district court’s initial decision to keep the law in place. Second, the Court considered the timing of upcoming elections and, “[g]iven the imminence of the election and the inadequate time to resolve the factual disputes,” determined that blocking the law weeks before Election Day caused confusion for both voters and election administrators. As described in the order, court “orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase.” Importantly, in its ruling, the Court did not draw a line in the sand for what it defines as too close to an election to alter voting rules.
Despite its vagueness, Purcell has become important in deciding election lawsuits.
While the 2006 ruling did not address the merits of the challenged law, acknowledging that voter ID laws “are hotly contested,” the Purcell shadow docket ruling has had lasting implications on the outcomes of voting rights lawsuits in subsequent elections. Parties trying to block a lower court order that changes rules for an upcoming election — whether in an expansive or suppressive way — often cite Purcell as a reason why the change should not go into effect ahead of that election.
Since 2006, courts have increasingly applied the Purcell principle to various election-related cases, taking seriously the Supreme Court’s warning that courts should be hesitant to change election rules close to an election. However, lower courts have been left to their own interpretations of the principle since the Supreme Court did not explicitly outline what counts as too close to an election and how timing should factor into these decisions. This has resulted in inconsistent decisions, including within Supreme Court rulings, that can cause whiplash for voters trying to determine which election laws will be in place for upcoming elections.
Further, the Court did not explain in its Purcell decision how much voter confusion should be weighed against other factors influencing the need for emergency relief. This became a focal point in 2020 when states altered voting rules to address safety concerns posed by the COVID-19 pandemic. Even though rules were changed close to elections, they were ultimately designed to aid voters in safely casting a ballot during an unprecedented global crisis. Despite this, the Supreme Court largely blocked last-minute changes while citing Purcell and the risk of potential voter confusion. In their shadow docket orders, the justices often did not focus (or even explain at all, an irony considering the Court critiqued the 9th Circuit for not explaining its decision in Purcell) on any other election-related concerns, such as potential widespread disenfranchisement without the expanded COVID-19 rules.
While maintaining clear election rules is important for both voters and election administrators, those seeking to limit voting access can point to Purcell as a reason why voter suppression laws should remain in place. This has created opportunities for bad actors to push for restrictive voting measures or unfair maps to remain in place simply because an election is on the horizon — even if it’s months away. Without a clear rule to follow, judges must weigh potential voter confusion against the risk that voters will be irreparably harmed by potentially illegal laws — a decision that can be vulnerable to the political whims of judges.
What does this mean for future election litigation?
The overall vagueness about the outer bounds of the Purcell principle and when and how it should be applied has created an opening for unnecessary voter disenfranchisement, something that has been critiqued by scholars, lawyers and even Supreme Court justices. Dissenting from a 2014 decision that allowed a strict voter ID law to be reinstated in Texas, Justice Ruth Bader Ginsburg pointed out that the court system is meant to prevent unconstitutional laws from harming or disenfranchising voters, even if that means intervening close to an election. “The greatest threat to public confidence in elections in this case is the prospect of enforcing a purposefully discriminatory law,” she wrote.
As summarized by Wilfred U. Codrington III, a law professor and fellow at the Brennan Center for Justice, “the absence of clear instruction [from Purcell] is problematic as it can result in inconsistency among lower courts, unfairness to the parties, and a waste of judicial resources. Indeed, Purcell’s failure to clarify this point of ambiguity only exacerbates the confusion that stems from this anti-confusion principle.” Despite this, the Purcell principle’s increasing prominence in deciding election cases has only grown since it formulated in 2006 and appears poised to dominate litigation in future election cycles.