By Nicholas Stephanopoulos (Harvard Law School)
Supreme Court observers have begun to pay more attention to the Court’s “shadow docket”: disputes the Court resolves summarily, without the usual briefing, argument, explanations, or even indications how each Justice voted. Still mostly overlooked, however, is that the Court doesn’t just have a shadow docket; it also has shadow doctrines, rules the Court applies only in its non-merits cases. In my own field of election law, the most prominent of these shadow doctrines is undoubtedly the Purcell principle, named for the 2006 (non-merits) decision of Purcell v. Gonzalez. In Purcell, the Court strongly disfavored judicial changes to election regulations close to election day. Such changes, according to the Court, “can themselves result in voter confusion and consequent incentive to remain away from the polls.” “As an election draws closer,” moreover, “that risk will increase.”
Since it was announced, the Purcell principle has reared its head every two years as elections have approached. But it has never been as important as this year for one simple reason: There has never been as much litigation in the leadup to an election. According to the COVID-Related Election Litigation Tracker, more than three hundred election law cases have been filed in 2020 in more than forty states. Among (many) other issues, these suits have addressed polling place locations and procedures, deadlines for requesting and returning absentee ballots, witness and notarization requirements for absentee ballots, and signature thresholds for qualifying for the ballot. The Supreme Court has already resolved half a dozen disputes on Purcell grounds—an all-time high—three of which included reasons for the Court’s actions or written dissents. And the Court will surely confront Purcell again before this election is over. Lower-court election litigation continues to rage, making it inevitable that more appeals will land on the Court’s doorstep.
Despite all this activity, the Purcell principle remains remarkably opaque. Precisely because it is a shadow doctrine, appearing only in the Court’s shadow docket, its contours have never been clarified. The above quote from Purcell itself was almost all the Court had to say about the rule against late-breaking judicial intervention when the Court first unveiled this policy. Since Purcell, the Court has added only a few more sentences about the doctrine’s operation. In April of this year, the Court praised “the wisdom of the Purcell principle,” and in August, the Court held that the principle carries less weight when “state election officials support the challenged decree.” True, occasional dissents from the Court’s Purcell jurisprudence have explored in somewhat more detail when courts should and shouldn’t change election regulations close to election day. But these have still been skimpy opinions that didn’t purport to offer a comprehensive analytical framework.
My aim in this piece, then, is to put some meat on Purcell’s bones: to consider more fully when judicial intervention near an election is inadvisable and when, conversely, it’s prudent or even urgent. I make two main points. First, the Purcell principle can’t be an ironclad rule. The Court’s own rationales for the doctrine indicate that judicial revision of election regulations can sometimes be appropriate despite the imminence of an election. Second, the circumstances under which judicial action is warranted, even though an election beckons, are reasonably foreseeable. They include (1) when a court’s remedy will cause little voter confusion; (2) when a court’s remedy will cause little administrator error; (3) when, if a court fails to intercede, significant disenfranchisement will ensue; (4) when plaintiffs have diligently pursued their claim; and (5) when an election is further rather than closer based on Congress’s judgments about election proximity.
Start with the argument that Purcell should be understood as a presumption against—not a prohibition of—judicial intervention near an election. This is the reading most consistent with Purcell’s actual language. In deciding whether to issue injunctions in election law cases, the Court held, lower courts are “required to weigh” the possibility that their orders will cause voter confusion and consequent disenfranchisement. Of course, to weigh a factor is to take it into account, to examine carefully all the evidence that bears on it. To weigh a factor is not to make it dispositive in all cases, to prioritize it over all competing values. So Purcell can’t fairly be construed as a categorical bar on courts amending election regulations close to election day. The decision is more like an admonition that courts considering such amendments take seriously the prospect that the changes will confuse or even disenfranchise certain voters.
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