By Andrew Vazquez
October 19, 2023, 2:30 PM

The institutional stability of American democracy has faced some high profile challenges in the last few years: an attempted insurrection, claims of voter fraud, and many new voting restrictions.  However, a lesser known threat to democracy is developing in judicial opinions.  Known as the Purcell Principle, this threat is a court-created doctrine that holds that courts should not change election rules close to an election because doing so could confuse voters.¹The doctrine was first dubbed the “Purcell Principle” by Richard Hasen in 2017. See Richard L. Hasen, Reining in the Purcell Principle, 43 Fla. St. U. L. Rev. 427 (2016).  In theory, the Principle makes sense:  voters may be confused if election rules or procedures are changed in the weeks leading up to an election.  In practice, however, the Purcell Principle prevents courts from remedying unconstitutional or illegal voting procedures until after an election occurs.  The judiciary’s application of the Purcell Principle has already had sprawling consequences for democracy and could have a significant impact on future elections.

The Purcell Principle is a convoluted, under-theorized doctrine, borne out of the Supreme Court’s shadow docket, that is continuously evolving at all levels of the federal judiciary.²Richard L. Hasen, Reining in the Purcell Principle, 43 Fla. St. U. L. Rev. 427 (2016).  Before exploring this evolution, however, it is important to understand how the Supreme Court developed the Purcell Principle, and how the Principle has impacted American politics thus far.  In an ongoing series in the Voting Rights and Democracy Forum, I will explain the Purcell Principle and its development, respond to new ways that courts implement the doctrine, and give my opinion on the dangers of the Principle.  This first commentary in the series will provide an explanation of the way the Supreme Court has developed the Purcell Principle and give a glimpse into the impact that the Principle has had on American politics.

Created in the Shadows

Notably, the Supreme Court created the Purcell Principle by way of the shadow docket. Typically, the Court authors its legal reasoning in lengthy, reasoned opinions after extensive briefing and oral argument.  This process, known as the “merits docket,” is familiar to most Americans.  But the Court is also known for its “shadow docket” process, in which it issues short—typically unsigned—orders for emergency relief.  The Purcell Principle is a product of these shadows, meaning that the Court has not provided a detailed explanation of its legal basis or usage.

The Origins of the Purcell Principle

The Purcell Principle originates from a 2006 Arizona voter identification law case, Purcell v. Gonzalez.³549 U.S. 1 (2006) (per curiam).  In Purcell, the Supreme Court struck down a Ninth Circuit decision that came less than two weeks before Election Day.  The Court reasoned that “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.”⁴Id. at 4–5.  As a result, the Court allowed the voter identification law to go into effect without ruling on the merits of the case.⁵“We underscore that we express no opinion here on the correct disposition, after full briefing and argument, of the appeals from the District Court’s September 11 order or on the ultimate resolution of these cases. . . . Given the imminence of the election and the inadequate time to resolve the factual disputes, our action today shall of necessity allow the election to proceed without an injunction suspending the voter identification rules.” Id. at 5–6.  The Purcell Principle is thus the product of the Court’s shadow docket, a process where the Court issues short, typically unsigned orders for emergency relief.  As a result, the Court did not articulate a hard-and-fast rule mandating that courts never intervene when Election Day is close at hand.

Purcell Principle Application

The Purcell Principle has been applied in matters seeking preliminary injunctive relief to temporarily stop the implementation of an election law. When courts evaluate requests for preliminary injunction, they weigh four factors: whether (1) the plaintiff has a substantial likelihood of success on the merits, (2) the plaintiff is likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of equities tips in the plaintiff’s favor, and (4) an injunction is in the public interest.⁶Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008). Beyond these factors, the Purcell doctrine mandates that courts consider the timing of the election in their preliminary injunction analysis.⁷549 U.S. 1 (2006) (per curiam).  The Principle seems to require that a court leave in place a challenged law, even if the court finds that the other four factors favor enjoining the law.

The Court seemingly applied the Purcell Principle for the first time in 2014 in Frank v. Walker⁸574 U.S. 929 (2014) (mem.). and Veasey v. Perry.⁹574 U.S. 951 (2014) (mem.).  Both decisions allowed election laws to be used in upcoming elections—despite lower court rulings finding them unconstitutional—because of the closeness of the election.  Like Purcell, these cases were shadow docket decisions, so whether or not the Court was actually applying the Purcell Principle remains somewhat unclear.

In Republican National Committee v. Democratic National Committee¹⁰140 S. Ct. 1205 (2020). (“RNC”), the Supreme Court further embraced the Purcell Principle.¹¹See id. The Court stated that it “has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election.”¹²Id. at 1207. The Court cited only Purcell, Frank, and Veasey to show that it has “repeatedly emphasized” this point.¹³Id.  Regardless of the thin underlying precedent, the Supreme Court has maintained that the Purcell Principle is a “bedrock principle of election law”¹⁴Wood v. Raffensperger, 501 F. Supp. 3d 1310 (N.D. Ga.) aff’d, 981 F.3d 1307 (11th Cir. 2020). The Supreme Court denied certiorari. and continues to apply it without considering the factual nuances or merits of each case.  After RNC, the Justices stayed or vacated lower court rulings while relying on the Purcell Principle in three more cases in the run up to the 2020 election.¹⁵Merrill v. People First of Ala., 141 S. Ct. 190 (2020) (mem.); Andino v. Middleton, 141 S. Ct. 9, 10 (2020) (mem.) (Kavanaugh, J., concurring); Democratic National Committee v. Wisconsin State Legislature, 141 S. Ct. 28, 30 (2020) (mem.) (Gorsuch, J., concurring); see also id. at 32 (Kavanaugh, J., concurring).   The Court did not issue a majority opinion to explain the rationale of the Purcell Principle in any of these cases.

The Problem with the Purcell Principle

To be clear, the judiciary should try to protect voters from confusion stemming from last minute election law changes.  But in guarding against one evil, the Purcell Principle preserves a greater one by leaving unconstitutional or illegal election laws in place.  Further, because of its shadowy origins, the Purcell Principle is a doctrine that knows few bounds or limits, and as a result, the Supreme Court has free rein to arbitrarily dictate a result by deploying the Principle. Alabama’s recent redistricting saga is illustrative of this problem. 

In Merrill v. Milligan,¹⁶142 S. Ct. 879 (2022) (mem.). the plaintiffs brought suit against Alabama and argued that the state’s congressional map was racially gerrymandered in violation of Section 2 of the Voting Rights Act.¹⁷52 U.S.C. § 10301.  The plaintiffs initiated the lawsuit on November 4, 2021, a full year ahead of the 2022 election, and sought a preliminary injunction to prevent Alabama from using the gerrymandered map in the election.  On January 24, 2022, in a 203-page opinion, a three-judge panel of the district court granted the plaintiffs’ preliminary injunction—holding that Alabama’s maps illegally diluted the voting power of Black people.¹⁸Singleton v. Merrill, 582 F.Supp.3d 924 (N.D. Ala. 2022).  On February 7, the Supreme Court, relying on the Purcell Principle, put that ruling on hold by the majority because the primary election was occurring on May 24, 2022.¹⁹Merrill v. Milligan, 142 S. Ct. 879 (2022) (mem).

While the Court’s majority failed to explain their reasoning for the stay, Chief Justice Roberts and Justice Kagan authored pointed dissents. Chief Justice Roberts would not have stayed the Alabama court’s ruling because the “District Court properly applied existing law in an extensive opinion with no apparent errors for our correction.”²⁰Id. at 883 (Roberts, C.J., dissenting).  In Roberts’ opinion (and Court precedent), preliminary injunctions are only stayed pending appeal when the lower court has deviated from precedent or erred in some meaningful way, which the Appellant was not claiming here.²¹In the past, the Supreme Court characterized a stay of lower court rulings as an “‘intrusion into the ordinary processes of administration and judicial review,’ and accordingly it was “not a matter of right, even if irreparable injury might otherwise result to the appellant.’” Nken v. Holder, 556 U.S. 418, 427 (2009) (citation omitted).  Justice Kagan similarly stated: “The District Court here did everything right under the law existing today.  Staying its decision forces Black Alabamians to suffer what under [Section 2 of the Voting Rights Act] is clear vote dilution.”²²Merrill v. Milligan, 142 S. Ct. at 883 (Kagan, J., dissenting).  Justice Kagan’s dissent laid out just how grievous this deviation from precedent was from prior racial vote dilution cases and called out the majority for its abuse of the shadow docket.  Justice Kagan stated that “[t]oday’s decision is one more in a disconcertingly long line of cases in which this Court uses its shadow docket to signal or make changes in the law, without anything approaching full briefing and argument.”²³Id. at 889.

Though the Supreme Court eventually reviewed the merits of the case after the 2022 election and upheld the Alabama district court’s finding of an illegal racial gerrymander in Allen v. Milligan,²⁴599 U.S. 1 (2023). the damage had already been done.  It is likely that the stay impacted the makeup of the House of Representatives after the 2022 election.  In Alabama, under the ruling in Merrill, there was one less majority Black congressional district under the map used in the 2022 election (which was the reason it was found to violate the Voting Rights Act).  Shortly after Merrill, the Court stayed a case from Louisiana where a district court invalidated the congressional maps for racial gerrymandering.²⁵Ardoin v. Robinson, 143 S. Ct. 2654 (2023) (mem.).  Taking its cue from Merrill, a federal court in Georgia applied the Purcell Principle to a racial gerrymandering case and refused to grant a preliminary injunction.²⁶Alpha Phi Alpha Fraternity, Inc. v. Raffensperger, 587 F.Supp.3d 1222, 1326-27 (N.D. Ga. 2022).  Had the Purcell Principle not been applied, these cases would likely have created additional majority-minority districts in these states, which likely would have voted Democratic.  In sum, illegal or unconstitutional congressional maps likely cost Democrats one seat in Alabama and Louisiana and one to two seats in Georgia—a total difference of three to four seats. Republicans currently have a five-seat majority in the House of Representatives. 

Conclusion

The Purcell Principle can have significant impacts on American politics, and the cases discussed here are just the tip of the iceberg.  The Purcell Principle poses a threat to election integrity and democratic principles, carrying serious risks that voting rights will be undermined because it allows courts to sidestep remedying unconstitutional election laws.  Accordingly, this series will follow and explain its development.  The abstruse nature of the Purcell Principle should not prevent the public from knowing how much of an outsized influence it may have on future elections.

*The views in this commentary are my personal views alone and unrelated to those of Kramer Levin Naftalis & Frankel or its clients.

References:

• 1
  The doctrine was first dubbed the “Purcell Principle” by Richard Hasen in 2017. See Richard L. Hasen, Reining in the Purcell Principle, 43 Fla. St. U. L. Rev. 427 (2016).
• 2
  Richard L. Hasen, Reining in the Purcell Principle, 43 Fla. St. U. L. Rev. 427 (2016).
• 3
  549 U.S. 1 (2006) (per curiam).
• 4
  Id. at 4–5.
• 5
  “We underscore that we express no opinion here on the correct disposition, after full briefing and argument, of the appeals from the District Court’s September 11 order or on the ultimate resolution of these cases. . . . Given the imminence of the election and the inadequate time to resolve the factual disputes, our action today shall of necessity allow the election to proceed without an injunction suspending the voter identification rules.” Id. at 5–6.
• 6
  Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008).
• 7
  549 U.S. 1 (2006) (per curiam).
• 8
  574 U.S. 929 (2014) (mem.).
• 9
  574 U.S. 951 (2014) (mem.).
• 10
  140 S. Ct. 1205 (2020).
• 11
  See id.
• 12
  Id. at 1207.
• 13
  Id.
• 14
  Wood v. Raffensperger, 501 F. Supp. 3d 1310 (N.D. Ga.) aff’d, 981 F.3d 1307 (11th Cir. 2020). The Supreme Court denied certiorari.
• 15
  Merrill v. People First of Ala., 141 S. Ct. 190 (2020) (mem.); Andino v. Middleton, 141 S. Ct. 9, 10 (2020) (mem.) (Kavanaugh, J., concurring); Democratic National Committee v. Wisconsin State Legislature, 141 S. Ct. 28, 30 (2020) (mem.) (Gorsuch, J., concurring); see also id. at 32 (Kavanaugh, J., concurring).
• 16
  142 S. Ct. 879 (2022) (mem.).
• 17
  52 U.S.C. § 10301.
• 18
  Singleton v. Merrill, 582 F.Supp.3d 924 (N.D. Ala. 2022).
• 19
  Merrill v. Milligan, 142 S. Ct. 879 (2022) (mem).
• 20
  Id. at 883 (Roberts, C.J., dissenting).
• 21
  In the past, the Supreme Court characterized a stay of lower court rulings as an “‘intrusion into the ordinary processes of administration and judicial review,’ and accordingly it was “not a matter of right, even if irreparable injury might otherwise result to the appellant.’” Nken v. Holder, 556 U.S. 418, 427 (2009) (citation omitted).
• 22
  Merrill v. Milligan, 142 S. Ct. at 883 (Kagan, J., dissenting).
• 23
  Id. at 889.
• 24
  599 U.S. 1 (2023).
• 25
  Ardoin v. Robinson, 143 S. Ct. 2654 (2023) (mem.).
• 26
  Alpha Phi Alpha Fraternity, Inc. v. Raffensperger, 587 F.Supp.3d 1222, 1326-27 (N.D. Ga. 2022).