When is it too close to an election to change voting laws and district maps? 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. 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.
However, a big question around timing remains unanswered in the legal community: When is it too close to an election to change voting laws? This page will serve as a resource where you can read background information about the Purcell principle, find further reading and review a repository of cases highlighting the range of applications of what qualifies as “too close” to an election.
What is the Purcell principle?
Let’s back up to the 2006 midterm elections when the Supreme Court, in deciding Purcell v. Gonzalez, reinstated a previously blocked citizenship law in Arizona just two and a half weeks before Election Day. In justifying its decision, the Court considered the timing of upcoming elections and determined that blocking the law weeks before Election Day caused confusion for both voters and election administrators. 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.
From blocking pandemic-era voting reforms to reinstating gerrymandered congressional maps, the Supreme Court has cited Purcell in ways that are inconsistent and vague, opening the door for unnecessary voter disenfranchisement and unfair districts. In turn, lower courts have applied their own interpretations of the principle, pointing to various applications in the Supreme Court to justify their rationale of when it’s “too close” to an election to change voting rules.
The law at the origin of the Purcell principle 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.
In the Courts
Below you will find a repository of lawsuits where the Purcell principle has been cited by a court in support of its decision to either block or keep in place certain voting-related laws around election time. The wide range of contexts demonstrates the varying degrees of interpretation by both lower courts and the Supreme Court on the outer bounds of the Purcell principle.
2022 Election Cycle
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 after finding that the limitations violate Section 208 of the Voting Rights Act. The 8th U.S. Circuit Court of Appeals then paused the district court’s ruling, meaning the laws that criminalize assisting more than six voters will remain in place for the 2022 midterm elections. In the one-paragraph order, the judge cited the Purcell principle, but did not explain why allowing for a more robust voter assistance program will confuse or disenfranchise voters. The district court’s order was released on Aug. 19, 2022; the 8th Circuit’s order was released on Sept. 28, 2022 and the midterm elections are on Nov. 8, 2022.
A judge for the U.S. District Court for the Northern District of Georgia declined to block Georgia’s new legislative and congressional maps for the 2022 election cycle after three lawsuits sought to halt the use of the maps for violating Section 2 of the Voting Rights Act. Even though the judge found that the maps likely violate the VRA, he decided it was too late in the election cycle to grant any relief and invoked Purcell to justify his reasoning. The district court’s order was released on March 1, 2022; Georgia’s primary elections were held on May 24, 2022.
A judge for the U.S. District Court for the Northern District of Georgia denied a request to temporarily block the line-warming ban in Georgia’s voter suppression law enacted in 2021 for the 2022 midterm elections. Even though the judge found that the plaintiffs showed that the line-warming ban outside of the immediate vicinity of polling places is likely unconstitutional and that they met all the standard requirements for a preliminary injunction, he declined to block it due to the Purcell principle because he found it was too close to the fall elections. The district court’s order was released on Aug. 18, 2022; the midterm elections are scheduled for Nov. 8, 2022.
Two Arizona Republicans challenged the use of electronic voting machines in Arizona and sought to ban them in the upcoming November midterm election. A judge for the U.S. District Court for the District of Arizona dismissed the lawsuit for raising “vague” and “speculative” claims, but also pointed to the Purcell principle and explained that, even if the court didn’t toss the case, given the imminence of the November midterm elections the “request [for] a complete overhaul of Arizona’s election procedures” is implausible. The district court released its order on Aug. 2, 2022, the same day as Arizona’s primary elections.
In March 2022, a judge for the U.S. District Court for the Northern District of Florida blocked three provisions of the state’s voter suppression law, Senate Bill 90, and placed the state under preclearance requirements before enacting certain election laws for the next 10 years. The 11th U.S. Circuit Court of Appeals paused the lower court’s order while it decides the state’s appeal, thereby reinstating the three previously blocked provisions and halting preclearance requirements. The 11th Circuit judges held that, even though the Supreme Court “has never specified precisely what it means to be ‘on the eve of an election’ for Purcell purposes,” they must apply Purcell here and this case fits within time limits suggested by the principle. The district court’s order was released on March 30, 2022; the 11th Circuit’s order was released on May 6, 2022 and the state’s primary elections were held on Aug. 23, 2022.
After a lower court blocked Alabama’s congressional map drawn with 2020 census data for likely violating Section 2 of the Voting Rights Act, the state went to the Supreme Court via its shadow docket. A majority of justices reinstated the previously blocked map for reasons they didn’t explain in an unsigned order. Notably, Justice Brett Kavanaugh cited Purcell in his non-binding concurring opinion, which has since been cited in numerous decisions since. The lower court’s order was released on Jan. 24, 2022; the Supreme Court’s shadow docket order was released on Feb. 7, 2022; Alabama’s primary elections were held on May 24, 2022.
After the North Carolina court system enacted a remedial congressional map to replace the one it previously blocked for violating the state constitution, North Carolina Republicans went to the Supreme Court via its shadow docket asking the Court to undo this map. A majority of justices declined this request without explaining their reasoning in an unsigned opinion. Kavanaugh did, however, file a non-binding concurrence pointing to the Purcell principle and his prior concurrence in Merrill to say it was too late in the election cycle to alter the map. The remedial congressional map was adopted on Feb. 24, 2022; the Supreme Court’s shadow docket order was released on March 7, 2022; North Carolina’s primary elections were held on May 17, 2022.
A group of Washington voters and a nonprofit organization sued over the state’s legislative redistricting plan drawn with 2020 census data, alleging that the plan diluted the voting strength of Latino voters, and sought to block the use of the districts in the 2022 election cycle. A judge for the U.S. District Court for the Western District of Washington declined to block the plan, noting that “we are too close to the 2022 election to enjoin the use of the existing plan for this election cycle” under Purcell. The district court’s order was released on April 13, 2022; Washington’s primary elections were held on Aug. 2, 2022.