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Wilfred U. Codrington III, Purcell in Pandemic, 96 N.Y.U. L. Rev. 941 (2021).

There is almost nothing positive to say about the Supreme Court’s cryptic 2006 ruling in Purcell v. Gonzalez. In a short and unsigned ruling that styled itself as attempting to avoid the risks of election confusion, the Justices handed down a “principle” for how federal courts should behave in late-arising election cases: courts should generally refrain from changing the rules governing elections as Election Day approaches. The basic import of Purcell is to encourage trial courts to avoid enjoining election rules and procedures that they otherwise might if the election is nigh—and to encourage appellate courts to stay any such injunctions. Purcell is not an argument against the power of lower courts to provide remedies for unlawful election laws; rather, it is an argument against allowing injunctions of election laws to go into effect too close to elections.

At first blush, that principle seems plausible enough. Court orders—especially competing court orders—changing the rules in the run-up to Election Day can cause chaos, risking not just disenfranchisement of confused voters, but headaches for election officials tasked with administering an election and tallying results under shifting legal foundations. Indeed, perhaps the best defense of Purcell is that it was the Supreme Court’s attempt to introduce rigidity into an area in which the Justices believed that there is too much discretion—to tightly circumscribe the power of courts as Election Day approaches. But in the 16 years since Purcell was handed down, numerous problems have emerged with its “principle.”

Perhaps no series of cases better illustrate those problems than the Supreme Court’s handling of election cases in 2020 during (and arising out of) the COVID pandemic. In Purcell in Pandemic, Wilfred Codrington III uses those decisions to illustrate some of Purcell’s most significant shortcomings.

On its own terms, Purcell never explained when it is “too close” to an election for courts to intervene. In Purcell itself, the Ninth Circuit injunction came 33 days before the Arizona election—far enough out to seemingly abate any confusion concern (the Supreme Court’s decision, in contrast, came just 18 days before the election). But if 33 days is too close, what about 43? Or 63?

Although the unsigned opinion in Purcell alluded to “considerations specific to election cases,” it never explained why an election-specific rule was needed. Why wouldn’t the traditional standards for injunctions—and for stays of injunctions pending appeal—suffice? When a district court enters an injunction, whether that injunction should be stayed pending appeal depends upon a series of factors, including the harm that both parties would suffer from a ruling in either direction and how the public interest is impacted either way. Those traditional factors are supposed to be “balanced,” an invitation to courts to assess which harm is worse—the harm to plaintiffs of having to comply with potentially unlawful voting rules or the harm to everyone else of blocking those rules on the eve of the election.

But in a series of cases involving district court rulings making it easier for voters to cast absentee ballots in the 2020 primary and general elections, the Justices froze those rulings even in contexts in which it was the Supreme Court’s decision, not the lower-court injunction, that was likely to cause confusion. In one especially revealing case from South Carolina, the Court stayed a district court injunction against a witness signature requirement “except to the extent that any ballots cast before this stay issues and received within two days of this order may not be rejected for failing to comply with the witness requirement.” In other words, the validity of votes without witness signatures that were cast right before the Court’s ruling would turn on when they were received by state election officials—a matter quite obviously beyond the control of the voters. Three Justices would have stayed the injunction as to all votes, disenfranchising thousands of voters who had already cast ballots while an injunction had been in effect.

Moreover, it did not have to be this way. Purcell could have identified a window (say, 60 days) before the election and instructed courts to view changes to the rules by any relevant actor with presumptive skepticism. By instead treating the election law at the moment it reaches the district court as the operative baseline, even if that law was deliberately changed weeks (or even days) before, Purcell makes it easier for election administrators to get away with unlawful rule-changes so long as they are adopted late in the game. And if a court ultimately strikes down the rule on the far side of the election, Purcell supports allowing the rule to remain in effect on election day itself, presumably accomplishing the goal of those who adopted it. In states whose officials do not behave quite so badly, Purcell at least incentivizes delay. When Georgia Governor Matt Kemp waited a full month in late 2021 before signing into law new congressional district maps adopted by the state legislature, it was broadly assumed that, with an eye on Purcell, he was trying to run out the clock. And it worked; although a Georgia district court concluded in early 2022 that the maps violated the Voting Rights Act, it also held that it would not enjoin them because of the proximity to Georgia’s primaries.

Finally, and exacerbating these concerns, Purcell was a shadow docket decision—decided on a compressed schedule, with no argument and no advance indication to the parties or anyone else that the Court would treat Arizona’s emergency application as an opportunity to fundamentally rewrite judicial procedure in election cases. (Orin Kerr called the Court’s decision “a lightning bolt from above.”) Its thinly reasoned analysis spans just over two pages. One would think that if the Justices wanted to dramatically change the nature of judicial review in election cases, they would have done so more publicly and in a more comprehensive opinion.

Part of the problem with Purcell’s paucity of analysis is the increasing appearance that courts use it in a way that tends to favor Republicans and hurt Democrats. In the middle of the 2020 cycle, the Justices had a perfect opportunity to demonstrate otherwise in a case from Florida. In 2018, Florida voters amended the state constitution to restore the right to vote to convicted felons who had fully served their sentences, an amendment that would re-enfranchise as many as one million voters. Florida’s Republican-controlled political branches vehemently opposed the amendment; because the population to whom it applied was overwhelmingly poor and non-white, the widespread assumption was that it would favor Democrats. Thus, the Governor and state legislature interpreted the amendment as only applying to those released felons who had also cleared all outstanding fines, fees, and restitution, even if they could not afford to do so, or even if, as was usually the case, Florida was unsure how much anyone owed due to faulty recordkeeping or a lack of clarity in the underlying judgments.

When those interpretations were challenged in 2019, a federal district court preliminarily enjoined enforcement, holding that they likely violated due process (because many convicted felons did not and could not know how much they owed); equal protection (because they imposed a wealth barrier to voting); and the Twenty-Fourth Amendment (which prohibits poll taxes). In May 2020, the district court issued a final judgment after an eight-day trial, striking down the pay-to-vote requirements.

On July 1, 2020, the Eleventh Circuit, which had previously refused to stay the district court’s preliminary injunction, stayed the permanent injunction. With the voter-registration deadline only 19 days away, the court of appeals changed the rules that had been in effect since the previous summer while offering no explanation as to why it was doing so. The plaintiffs asked the Supreme Court to lift the stay by invoking Purcell, arguing that the Eleventh Circuit had changed the rules for an election on the eve of the relevant deadline and had failed to either justify its ruling or explain why the underlying district court ruling was wrong. Under any reading of Purcell, this should have been an easy case for vacating the stay.

Instead, in a one-sentence order, the Supreme Court denied the application. Justice Sotomayor, joined by Justices Ginsburg and Kagan, wrote a fiery dissent, stressing the inconsistency between the Court’s intervention that April in a Wisconsin case and its non-intervention in Florida: “Ironically,” she concluded, “this Court has wielded Purcell as a reason to forbid courts to make voting safer during a pandemic,…because any safety-related changes supposedly came too close to election day. Now, faced with an appellate court stay that disrupts a legal status quo and risks immense disfranchisement—a situation that Purcell sought to avoid—the Court balks.”

Others have written about Purcell before Codrington. But the Court saw only a handful of Purcell-related cases throughout the 2010s. Codrington’s contribution is unique—and uniquely useful—in aggregating Purcell-infused disputes of the 2020 election cycle. Because of the number of last-minute changes to election laws in response to the COVID pandemic, alongside claims that local or state election officials should have gone further to accommodate voters amidst the public health emergency, the pandemic provided a chance to see how the Court would handle Purcell across a meaningful dataset of cases. And the results were, as Codrington explains, more than a little unsatisfying.

This February, concurring in the Supreme Court’s unsigned and unexplained stays of district court rulings that had enjoined implementation of Alabama’s proposed new congressional maps (although the primary was four months away and the general election nine months away), Justice Kavanaugh described Purcell as “a bedrock tenet of election law.” As Codrington persuasively argues, the only “bedrock tenet” Purcell truly establishes is its own increasingly indefensible subjectivity.

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Cite as: Steve Vladeck, Purcell and the Terrible, Horrible, No Good, Very Bad Year, JOTWELL (September 26, 2022) (reviewing Wilfred U. Codrington III, Purcell in Pandemic, 96 N.Y.U. L. Rev. 941 (2021)), https://courtslaw.jotwell.com/purcell-and-the-terrible-horrible-no-good-very-bad-year/.