This year, different courts found new redistricting maps in states like Alabama and Georgia likely illegal. Yet, those unfair maps were in place for the 2022 midterm elections. The challenged provisions of Florida’s voter suppression law also remained enacted for the midterms.
In numerous consequential cases this year — in many of which, the impact on voters and democracy cannot be understated — judges at all levels of the federal judiciary relied on a vague and shifting legal principle to maintain an anti-democratic status quo. This principle is called the Purcell principle, which emerged in 2006 from a six-page U.S. Supreme Court order.
On Oct. 20, 2006, weeks before the midterm elections, the Supreme Court reinstated Arizona’s restrictive citizenship law that had been blocked by the 9th U.S. Circuit Court of Appeals in Purcell v. Gonzalez. The Supreme Court’s order was limited in part because it surfaced on the Court’s “shadow docket,” where emergency requests do not undergo full briefing or oral argument. The unanimous order hinged on the fact that the 9th Circuit, in an unexplained decision, did not give appropriate deference to the district court. (Fact finding takes place at the lowest court level — in federal courts, those are U.S. district courts — and appellate courts can review those decisions.)
Yet, the significance of Purcell’s short “shadow docket” order lies not in the main holding, but in other language. The Court wrote: “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.”
In those 31 words, the Supreme Court unleashed an “anti-confusion” concept that, specifically in the past two years, has spiraled out of control. The Purcell principle was only cited a few times by the highest court in the following decade after it was first noted. The COVID-19 pandemic and the flurry of election law changes it engendered before the 2020 election breathed new life into the undefined concept. In 2022, a shallow invocation of “confusion” has been used to uphold gerrymandered maps and unconstitutional voting restrictions across the country.
The Purcell principle is being used with increasing frequency.
Since 2006, the Purcell principle largely laid quiet until about a month before the 2014 midterm elections. In a series of four orders, the Supreme Court paused or nullified lower court decisions under the apparent guise that the lower courts, whether a trial or appellate court, should not make changes to election law in the time period immediately preceding an election. The four shadow docket orders had the following, sometimes contradictory, effects: preventing Ohio from restoring extra days of early voting; stopping North Carolina from reinstating same-day voter registration and the counting of certain provisional ballots; barring Wisconsin’s strict voter identification law from going into effect and allowing Texas’ strict ID law to remain in effect.
Before the 2020 election, there was a flurry of legal back and forth given the many election rule changes made in light of a rapidly shifting public health crisis. The Supreme Court cited the Purcell principle at least five times in the 2020 election cycle — all on the shadow docket — starting with Republican National Committee v. Democratic National Committee in April 2020. “This Court has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election,” the unsigned order reads. A majority of the justices, unnamed, agreed that a Wisconsin court erred in altering the deadline for mailing absentee ballots.
Justice Ruth Bader Ginsburg, joined by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, in turn critiqued their colleagues’ intervention the day before the Wisconsin’s presidential primary election. “[T]he Court’s order cites Purcell, apparently skeptical of the District Court’s intervention shortly before an election. Nevermind that the District Court was reacting to a grave, rapidly developing public health crisis,” wrote Ginsburg. “If proximity to the election counseled hesitation when the District Court acted several days ago, this Court’s intervention today—even closer to the election—is all the more inappropriate.”
The nation’s highest court continued to cite the Purcell principle, sometimes in concurrences or dissents since justices do not need to give reasoning on the shadow docket. These 2020 mentions include:
- Raysor v. DeSantis, over Florida’s “poll tax” requirement that individuals with a felony conviction pay all fines before regaining the right to vote.
- Andino v. Middleton, over South Carolina’s witness requirement for absentee ballots.
- Merrill v. People First of Alabama, over Alabama’s allowance of curbside voting.
- Democratic National Committee v. Wisconsin State Legislature, a continuation of the April 2020 case (with a different name) regarding Wisconsin’s absentee ballot receipt deadline, this time for the general election.
In 2022, Supreme Court justices explicitly cited Purcell two separate times on the shadow docket regarding congressional maps. Following the decennial redistricting process, Alabama enacted a new congressional map that a lower court determined violated the Voting Rights Act (VRA). Though Alabama was ordered to redraw a map where Black Alabamians had fair representation, the state accelerated the case up to the U.S. Supreme Court, where a majority blocked the lower court’s decision.
Justice Brett Kavanaugh, joined by Justice Samuel Alito, wrote a non-binding concurrence that added some context to the unsigned order: He pointed to the Purcell principle, arguing that it was too late in Alabama’s election cycle to change the congressional map without causing “significant cost, confusion, or hardship.” (The three liberal justices noted in their dissent that Alabama’s primary elections were nearly four months away and the general election was nine months away.) A judge in Georgia then used Kavanaugh’s concurrence as the basis for allowing Georgia’s congressional and legislative maps to stand, despite the fact that he found “a substantial likelihood” that the maps violate Section 2 of the VRA.
Similarly, in North Carolina, Republican legislators went to the Supreme Court after state courts blocked the newly enacted congressional map for violating the state constitution and adopted a remedial map. The justices declined to take action, this time with Alito and other conservatives in dissent. Kavanaugh remained consistent, writing another concurrence that pointed to the Purcell principle as the reason he didn’t want to get involved.
Throughout this past year, the Purcell principle was invoked at least another 12 times by federal courts, often by U.S. courts of appeals.
How close is too close to an election? The timeframe has extended when comparing the original Purcell with 2022 cases.
The Purcell principle is vague on several fronts, but one of the main questions that has not been answered is how close is too close to an election? What is considered the “eve” of an election?
In Purcell v. Gonzalez, the U.S. Supreme Court deemed the appellate court’s actions on Oct. 5, 2006 as too close to the Nov. 7, 2006 election. That’s 33 days. Now, look at League of Women Voters of Florida v. Lee, a lawsuit challenging Florida’s omnibus voter suppression law, Senate Bill 90. A decision was made by a trial court on March 31, 2022; according to the 11th U.S. Circuit Court of Appeals, that date — 145 days prior to the election — was too close to the state’s Aug. 23 primary to permit election law changes.
The Purcell principle has turned into a superficial invocation of court decision timing in relation to an upcoming election; consequently, judges and justices ignore fact-driven opinions and impacts on voters.
“The greatest threat to public confidence in elections in this case is the prospect of enforcing a purposefully discriminatory law, one that likely imposes an unconstitutional poll tax and risks denying the right to vote to hundreds of thousands of eligible voters,” Ginsburg wrote in a dissent in the aforementioned 2014 Texas ID law case. Law professor Wilfred Codrington III reinforced this idea in a recent law review article: “In general, the Court overstated voter confusion as a problem vis-à-vis other democratic legitimacy concerns.” To some justices, the potential for voter confusion is more problematic than the reality of voter disenfranchisement.
By superficially focusing on how close to an election a judicial opinion was made, judges ignore whether deference was made to the fact finding of lower courts and how election rule changes would impact voters in reality — the original basis of the Purcell principle. For example, this past August, a federal district court in Arkansas struck down state laws that made it a crime for an individual to help more than six voters in one election. These state laws very clearly violated Section 208 of the VRA, which guarantees assistance for voters with disabilities.
Yet, the 8th U.S. Circuit Court of Appeals paused the district court’s ruling in a one paragraph order citing Purcell. Why did the 8th Circuit not defer to the detailed findings of the district court? And how, in allowing for more robust (and VRA required) voter assistance opportunities, will that confuse or disenfranchise voters?
The citations to Purcell in 2022 showed that the use of the principle is increasing, and if not reined in, will likely proliferate during the next election cycle in 2024. Unfortunately, what could have become helpful guidance for cases litigated close to elections has turned into a cheap way for courts to alter thoughtful lower court opinions, create clearly partisan outcomes and remain untethered from the ways voters face actual challenges in voting and elections.