Courts Wrestle With Legality of Changes to Election Procedures Close to

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The Purcell principle, established by the Supreme Court, generally cautions against changes to election procedures close to voting day.

In the run-up to Election Day, court battles have emerged over various policies related to ballots, election integrity, and vote-processing procedures.

Each case raises a typical judicial question: whether the policies align with state or federal law. A common issue in many of these cases is whether judges should exercise their discretion to uphold or invalidate policies so close to Nov. 5.

Cases in Georgia, Virginia, Pennsylvania, and Mississippi have each seen attorneys discussing something known as the Purcell principle, which is generally understood to caution against last-minute changes to election procedures. The exact contours of when and how that principle applies have been subject to debate.

In 2006, the Supreme Court’s decision in Purcell v. Gonzalez vacated an appeals court’s decision to halt Arizona’s voter identification law. The court, in its October 2006 opinion, emphasized that it expressed no position on the outcome of the case.

Instead, it suggested the timing of the election took precedence.

“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,” the court said in a per curiam opinion.

Honest Elections Project Vice President Chad Ennis told The Epoch Times that he thought Purcell was “a wise rule” but that the Supreme Court and appellate courts hadn’t “given enough guidance to the lower courts on how to use it.”

Pennsylvania

More recently, both sides of lawsuits in the battleground state of Pennsylvania have attempted to use the Purcell principle to argue in favor of their position in voting-related lawsuits that came before lower courts.

“Purcell can go both ways, and people will argue it both ways,” J. Christian Adams, who leads the Public Interest Legal Foundation, told The Epoch Times.

In the week before the 2024 elections, Republicans asked the U.S. Supreme Court to halt a state court decision allowing voters to cast provisional ballots after improperly submitting mail-in ballots.

It’s unclear how late a change can be for it to be determined inappropriate under U.S. Supreme Court precedent, but the Republican National Committee (RNC) told the court that “wherever the temporal line barring last-minute judicial rule changes lies, the ruling below plainly crossed it.” It also said chaos was impending without intervention.

Pennsylvania officials told the Supreme Court that the RNC had the Purcell principle backward and that “it is the entry of a stay, on the eve of the election, that would cause maximum disruption and confusion.”

The Supreme Court ultimately rejected the RNC’s application for relief but didn’t say whether or how either party’s Purcell arguments factored into their decision.

Justice Samuel Alito issued a statement, which was joined by Justices Neil Gorsuch and Clarence Thomas, saying that even if they agreed with Republicans’ arguments, they “could not prevent the consequences they fear.”

A separate lawsuit saw Republicans asking the state supreme court to halt an appeals court decision allowing the counting of undated mail-in ballots. The RNC said Purcell favored its position while the Democratic National Committee (DNC) argued that Purcell was mainly concerned with voter confusion.

“Because this case does not concern what voters should or should not do before sending in their mail ballots, but rather what county boards must do after mail ballots are received, it will not lead to voter confusion or keep voters from casting ballots,” a DNC brief read.

The Pennsylvania Supreme Court sided with Republicans but didn’t offer any reasoning surrounding Purcell in its per curiam opinion.

Former Michigan Solicitor General John Bursch told The Epoch Times that “Purcell generally applies only to election mechanics and procedures—not ballot access—and operates to freeze those mechanics and procedures in place as an election gets close to prevent voter confusion.”

Virginia

Further illustrating competing concerns about timing were the Department of Justice’s (DOJ’s) lawsuits against Alabama and Virginia. Both states attempted to implement efforts designed to purge their voter rolls of noncitizens but did so within 90 days of the Nov. 5 elections, known as the “quiet period.”

According to the DOJ, these programs violated the 1993 National Voter Registration Act, which requires states to complete “any program the purpose of which is to systematically remove the names of ineligible voters from the official lists of eligible voters” 90 days before an election.

Among other things, Virginia argued that the law shouldn’t be interpreted as protecting noncitizens from removal. It also told a federal district court that halting the program would violate Purcell given how close the election was.

Both the DOJ and Judge Patricia Giles suggested that the NVRA and Purcell shared common goals. After Giles issued an injunction and an appeals court affirmed that decision, Virginia asked the U.S. Supreme Court to intervene.

It told Chief Justice John Roberts that Giles’s order would lead to “adding numerous individuals to a State’s voter rolls past the State’s deadline for doing so and imminently before an election.”

U.S. Solicitor General Elizabeth Prelogar, meanwhile, cited the district court in stating that challenges under the NVRA’s 90-day period would always be close to an election. She added that “because the Quiet Period Provision itself aims to maintain the status quo in the weeks before the election, remedying violations that occur during that time is entirely consistent with Purcell.”

On Oct. 31, the Supreme Court granted Virginia’s request for emergency relief, allowing the program to continue. Justices didn’t offer an opinion explaining how they weighed the Purcell principle and Virginia’s other arguments about the law.

It’s unclear whether they ever will offer additional clarification. Adams said it was unlikely the court would further clarify the principle and denied it would ever set a specific timeline.

He also doubted that the court would take up cases after election day to review how courts applied Purcell before the election. Adams said he suspected the court’s brief order on Virginia’s law was based on Purcell.

Three justices—Justices Sonia Sotomayor, Ketanji Brown Jackson, and Elena Kagan—would have rejected Virginia’s request, according to the court’s order.

In May, Jackson dissented from the court’s decision to grant Louisiana’s request for a stay on a lower court ruling that its redistricting map violated the 14th Amendment’s equal protection clause. The lower court had asked Louisiana to submit a remedial map. Proceedings over the map extended the case until June 4. Louisiana argued that its secretary of state needed a map by May 15.

Although the unsigned order cited Purcell, it offered little explanation. Jackson said that in her view, “Purcell has no role to play here.”

“There is little risk of voter confusion from a new map being imposed this far out from the November election,” Jackson said.

She also cited Kagan’s dissent in Merrill v. Milligan, a 2022 case that came up in the challenge to Virginia’s voter roll program.

Both Virginia and Prelogar attempted to use a concurrence from Justice Brett Kavanaugh, who acknowledged that it “has not yet had occasion to fully spell out all of its contours.”

He nonetheless outlined four factors that might bear on whether courts should halt state election changes, including whether the plaintiff waited too long in bringing the lawsuit. Virginia argued that plaintiffs in their lawsuit waited too long, but Giles disagreed.

She also indicated Kavanaugh’s concurrence wasn’t binding on her court, indicating a majority opinion was needed to resolve lingering questions around Purcell.