By Andrew Vazquez
September 29, 2024, 3:00 PM

In February, I wrote an article in Slate detailing how the Supreme Court created a loophole that allows state legislatures or state boards of election to create new election laws or rules within months of an election without judicial intervention. That loophole, called the “Purcell Principle,” prevents federal judges from striking down election laws sometimes up to four months before even if the law is unconstitutional or illegal. This Principle was intended to prevent courts from creating voter confusion and election administration difficulty through rulings close to an election. However, state officials who are aware federal courts will not strike down laws in the months leading up to an election may pass knowingly illegal or unconstitutional laws that favor their partisan interests. I’ve sounded the alarm about the Purcell Principle in the past in the Forum as well.

On September 20, just 45 days before the 2024 Election, the Georgia State Election Board did just that when it passed a variety of new rules altering the ballot counting process—including requiring that all ballots cast on Election Day be hand-counted. By adding this cumbersome and senseless procedure, this rule may possibly delay certification of the election in Georgia by the required deadline of Friday, November 8. The Board went ahead with passing the rules despite a warning from the Georgia Attorney General that the new rules “very likely exceed the board’s statutory authority.” These new rules appear to be designed specifically for the purpose of delaying certification of the election. On top of that, the Guardian recently reported that several Georgia  election officials are coordinating with Cleta Mitchell’s Election Integrity Network to refuse to certify the results of the election—despite certification being mandatory under Georgia law. The State Election Board also initiated investigations into how mass challenges to voter registrations are being handled in eight primarily democratic counties.

Intentionally creating laws to allow officials to arbitrarily decide to whether or not to certify an election clearly implicates the rights of all voters in Georgia. The natural response to stop the implementation of these rule changes is to sue the State Election Board. However, under the Purcell Principle, a federal court would likely allow these changes to stand regardless of the merits of the arguments. Implementing these rule changes so close to the date of the election creates an enormous amount of confusion for election administrators that the Purcell Principle seeks to avoid through judicial rulings. But what happens when a judicial ruling can prevent election administration confusion and delay? Despite the fact that the entire electorate of Georgia might be disenfranchised by election officials refusing to certify the election, a federal court may refuse to strike down these rules.

Now, the Purcell Principle may not apply in this case against the Georgia State Election Board because there are likely valid arguments under Georgia state law but Georgia isn’t the only state making changes just before the election. In August, Ohio Secretary of State Frank LaRose, issued a directive to county election boards that said that only a voter can drop their personal ballot in a drop box. In Alabama, the Justice Department sued the state for violating federal law when it purged voters from voter rolls less than 90 days before the election. Alabama claims it was attempting to purge non-citizens from its voter rolls. Although these changes may seem minor, they can have an impact on close elections. This begs the question, what can be done to stop the states legislatures from manipulating the election process in the months leading up to an election in the future?

The Supreme Court recently applied the Purcell Principle in a case challenging an Arizona voter registration law. Just like its other shadow docket rulings under the Purcell Principle, the Court refused to articulate any boundaries, rules, or logical explanations for when the Purcell Principle may be overcome by constitutional considerations. Moreover, the Supreme Court has shown an incredible amount of deference toward state legislatures’ governance of elections in general and has upheld unconstitutional or illegal laws under the Purcell principle in the past.

In order to prevent election manipulation close to the date of an election, federal courts must not grant protection to election laws pursuant to the Purcell Principle when the laws are passed in the months before the election and intend to interfere with the election. Courts must not allow the Purcell principle to be used as a sword by legislatures to create election laws that are wholly shielded from judicial review. Obviously, there are situations when legislatures may need to react to changing circumstances in an election, such as with the COVID-19 pandemic during the 2020 election, but courts should recognize the threat that these last-minute changes can have to our democracy.

The opinions in this article are my personal views and not the views of my employer, Kramer Levin Naftalis & Frankel LLP.

Andrew Vazquez is an Associate at Kramer Levin Naftalis & Frankel LLP, and a Board Member for the Voting Rights and Democracy Project. Mr. Vazquez was a 2022 graduate of Fordham University School of Law, where he graduated Magna Cum Laude. At Fordham, Mr. Vazquez was a Co-Founder of the Voting Rights and Democracy Forum, a Staff Member on the Urban Law Journal, and a Contributor for Fordham Law News. In May 2022, he co-authored a New York Law Journal article with Project Director, Jerry H. Goldfeder.