In Missouri gerrymander fight, GOP wants to vastly expand Purcell — giving state lawmakers nearly unchecked power over elections

In Missouri’s perpetual redistricting fight, Republicans and GOP-led states are pushing to expand a doctrine traditionally aimed at restraining federal court intervention close to an election. 

Their argument has echoes of the dangerous independent state legislature theory, which would give state lawmakers nearly total power over election rules, and which the U.S. Supreme Court has rejected in its most sweeping form.

For two decades, the Supreme Court’s Purcell principle has primarily operated as a warning to federal judges to be especially cautious about changing a state’s election rules as voting approaches.

But in Missouri’s extraordinary congressional redistricting fight, Republicans are asking courts to push that principle in a consequential new direction — using Purcell to restrain state courts interpreting their own state constitutions.

Missouri itself acknowledged that the Supreme Court has never squarely gone that far.

“Admittedly, this Court has not addressed whether the Purcell principle can ever independently justify a state court’s last-minute alteration to federal election rules,” Secretary of State Denny Hoskins (R) told the justices earlier this month. 

But Missouri argued that Purcell’s underlying concern — preventing disruption close to an election — “squarely fits this case.”

Twenty Republican-led states supporting Missouri were even more explicit.

“While Purcell has most often been applied to the orders of ‘federal courts,’” they argued, “its animating principles — preventing voter confusion and loss of election integrity — apply equally to state court rulings.”

And the argument is no longer confined to legal briefs. 

The 8th Circuit Court of Appeals embraced much of its logic this week when it ordered Missouri to use its GOP-drawn 2025 congressional map in November, overriding the practical effect of a Missouri Supreme Court decision that barred the map under state law.

If that approach takes hold more broadly, Purcell could become something significantly different from the doctrine courts have traditionally applied — and could give legislatures near-absolute control over federal election rules by limiting when state courts can enforce state constitutional restraints.

From federal to state courts

Purcell takes its name from the Supreme Court’s 2006 decision in Purcell v. Gonzalez. The Court warned that election-related judicial orders can themselves cause voter confusion and that the risk increases as an election draws closer.

In the years since, the principle has repeatedly been invoked to stop lower federal courts from changing state election rules shortly before voting.

The Supreme Court described the distinction particularly clearly just this June. In Allen v. Milligan, the justices reiterated that lower federal courts should not “alter the election rules on the eve of an election.” 

But the Court immediately drew a line between federal judges and states themselves.

“While federal courts should not impose changes close to an election,” the majority wrote, “States are free to decide for themselves whether last-minute changes to an election are in their best interests.”

That distinction reflects one of Purcell’s underlying federalism concerns: Federal courts should hesitate before inserting themselves into election administration that the Constitution largely entrusts to states.

The Missouri litigation tests what happens when the allegedly disruptive decision comes from the state judiciary itself.

The Missouri Supreme Court unanimously ruled Sept. 3 that the state’s referendum process applies to congressional redistricting and that the Republican-drawn map, House Bill 1 (HB 1), never took effect because opponents submitted a valid referendum petition before its effective date. 

The court barred Hoskins from using HB 1 unless Missouri voters approve it in November.

Republican officials responded that the timing of that decision — after Missouri had already held its congressional primary under HB 1 — created precisely the disruption Purcell is supposed to prevent.

Missouri conceded that existing Supreme Court precedent had not established that Purcell independently constrains a state supreme court. It nevertheless warned that if state-court orders were beyond Purcell’s reach, “no federal election is safe from last-minute state court-ordered disruptions.”

The coalition of GOP-led states urged the justices to take the next step themselves.

8th Circuit takes up the argument

This week, the 8th Circuit effectively adopted that broader conception of Purcell.

People Not Politicians, the referendum group fighting HB 1, argued that Purcell protects the Missouri Supreme Court’s resolution of Missouri law from a last-minute federal judicial override.

The appeals court rejected that framing.

State courts, the panel wrote, “do not have a blank check to rewrite state election laws for federal elections.” It warned that allowing state judges to issue late federal-election decisions without federal review could enable “a handful of state judges” to affect control of Congress or a presidential election.

And the panel turned the referendum proponents’ Purcell argument directly against them. Refusing to correct an allegedly erroneous “late-breaking” state-court decision, it said, would “turn Purcell on its head.”

The Missouri Supreme Court had held as a matter of state law that HB 1 never took effect, meaning the state’s 2022 districts remained legally operative. The 8th Circuit instead focused on what had happened in practice: candidates filed and campaigned under the 2025 map, and more than a million Missourians voted under it in the August primary.

“The Missouri General Assembly ‘set the status quo,’” the panel wrote, while the state Supreme Court “upset it.”

That reasoning could matter far beyond Missouri.

Echoes of the independent state legislature theory

The argument bears a notable resemblance — though it is not identical — to the independent state legislature theory, or ISL.

Under the theory’s broadest version, the Constitution’s Elections Clause gives state legislatures special authority over federal elections that cannot be constrained by state constitutions or state courts.

The Supreme Court firmly rejected that proposition in its 2023 decision in Moore v. Harper.

The Supreme Court firmly rejected that proposition in its 2023 decision in Moore v. Harper. 

The Elections Clause does not give legislatures “exclusive and independent authority” over federal election rules, the Court held. State legislatures remain creatures of their state constitutions, and state courts retain authority to enforce those constitutional limits.

The Court did leave a crucial exception. 

State courts may not “transgress the ordinary bounds of judicial review” and effectively seize authority the Elections Clause assigns to legislatures. Federal courts can police that outer boundary.

The emerging Purcell argument by Republicans works differently.

Rather than saying a state court lacks power to constrain a legislature, it suggests that at some point in an election calendar it may become too late for the court to exercise that power without triggering federal intervention.

But the practical result in some disputes could look similar: A legislature adopts rules for a federal election; a state court later determines those rules violate the state constitution; but because candidates, voters or election officials have already relied on the legislature’s rules, Purcell prevents the state court’s judgment from changing the election.

In other words, the rejected broad ISL theory would have insulated legislative decisions based on who made them. An expanded Purcell doctrine could insulate those decisions based on when a court tries to correct them.

That distinction could become especially important when legislatures enact or alter election rules relatively late in the cycle.

Republicans say disruption is disruption

Republican litigants have a straightforward response: Chaos for voters and election administrators does not become less consequential because it was caused by a state judge rather than a federal one.

Earlier this year, in Malliotakis v. Williams, the Supreme Court stayed a New York state trial court ruling requiring a new congressional district. Justice Samuel Alito, concurring, emphasized the risks of “[l]ate judicial tinkering” when candidates and election officials have relied on existing rules.

But Malliotakis did not establish a general holding that Purcell itself binds state courts. Alito also emphasized a separate federal constitutional concern with the race-conscious remedy ordered in that case.

But Malliotakis did not establish a general holding that Purcell itself binds state courts. Alito also emphasized a separate federal constitutional concern with the race-conscious remedy ordered in that case.

And the Supreme Court’s more recent statement in Allen cuts in the other direction, expressly distinguishing federal judicial intervention from states’ authority to decide whether late election changes are warranted.

Referendum allies seized on that distinction in Missouri. 

Their Supreme Court briefing argued that Purcell is “animated by federalism concerns that do not apply to state court rulings” and “attempts to invoke state court pseudo-equivalents are unpersuasive.” They further quoted Allen’s declaration that states remain free to decide for themselves whether late election changes serve their interests.

A bigger question than Missouri

The Missouri fight therefore presents a broader question hiding inside an already convoluted redistricting battle: Is Purcell principally a rule of federal judicial restraint, or can it also become a federal constraint on state judicial review too?

Moore settled that state courts ordinarily have authority to enforce their state constitutions against legislatures regulating federal elections. But the Missouri litigation demonstrates how the timing of that review could become the next battleground.

If the Supreme Court accepts the broader Purcell theory now being advanced by Republicans and GOP-led states, state courts would still formally possess the authority Moore recognized. The harder question would be how late in an election cycle they could meaningfully exercise it.

In Missouri’s perpetual redistricting fight, Republicans and GOP-led states are pushing to expand a doctrine traditionally aimed at restraining federal court intervention close to an election. 

Their argument has echoes of the dangerous independent state legislature theory, which would give state lawmakers nearly total power over election rules, and which the U.S. Supreme Court has rejected in its most sweeping form.