How is the “Purcell principle” threatening voting rights in America?

AS AMERICA’S MID-TERM elections approach, legal challenges to congressional and legislative maps abound. At least 46 cases have contended that 17 states’ maps are racially discriminatory or illicitly partisan. Several have been brought against Alabama, which redrew its map in November. African-Americans, who comprise more than a quarter of Alabama’s electorate, make up a majority in just one of the state’s seven congressional districts. On February 7th, the Supreme Court paused a lower court’s order instructing the state’s legislature to add a second majority-black district. The narrow 5-4 ruling means the elections in November will probably be conducted using the challenged map. America’s highest court did not explain its decision, but in a concurring opinion two justices argued that the finding is required by a standard known as the Purcell principle. What is the Purcell principle, and how might it affect the elections?

The doctrine gets its name from Purcell v Gonzalez, a Supreme Court case decided in 2006. Two years before, Arizona had passed a measure requiring proof of citizenship when voters registered and identification when they turned up at polling stations. A group of Native American tribes and local organisations sued the state over the rules and asked for them to be temporarily frozen. Although a district court rejected the group’s request, an appellate court allowed the laws to be suspended until it could resolve the case, which would have been two weeks after the mid-term election at the earliest.

When it came before the Supreme Court, however, justices determined that, among other things, the appellate court had been wrong to change the rules just a month before the elections were due to take place. This gave rise to the Purcell principle, the idea that federal courts should not intervene in such matters just before an election. Over the past few years, the Supreme Court has increasingly relied on Purcell in election-law cases, including the recent challenges against Alabama.

The Alabama case decided last week came on the Supreme Court’s so-called “shadow”, or emergency, docket. It was resolved quickly; the five-justice majority did not provide reasons for its decision. The only explanation came from Justices Brett Kavanaugh and Samuel Alito, who wrote that ordering Alabama to redraw its map weeks before absentee voting in the primary, which begins on March 30th, “would require heroic efforts” from state officials. Even those, they said, would probably “not be enough to avoid chaos and confusion”. Justice Kavanaugh pointed to a string of seven decisions from the 2020 election cycle in which the court invoked Purcell to thwart 11th-hour changes, ranging from lifting witness requirements for absentee ballots in South Carolina, to changing signature rules for ballot initiatives in Idaho and extending Wisconsin’s receipt deadline for absentee ballots. In Justice Kavanaugh’s words, the Purcell principle “reflects a bedrock tenet of election law: when an election is close at hand, the rules of the road must be clear and settled”. Courts should avoid “tinkering” as election day approaches, he wrote, to avoid “unanticipated and unfair consequences”.

There is no doubt that last-minute changes in election rules—whether revised polling hours, voter-identification requirements or electoral maps—have the potential to confuse voters and destabilise elections. But the Supreme Court’s order in the Alabama case portends a new and vastly expanded application of Purcell: “another way for the Supreme Court to allow voting discrimination to occur in an upcoming election” while “pretending” that it is just following proper procedure, says Rick Hasen, an election-law expert at the University of California, Irvine. It can now be used to foil judicial oversight of policies that undermine voting rights even months before an election.

In a dissent that was joined by Justices Stephen Breyer and Sonia Sotomayor, Justice Elena Kagan noted that the three-judge district court was methodical—and unanimous—in finding that Alabama’s map probably violated Section 2 of the Voting Rights Act. (Two of the judges on the lower court were appointed by Donald Trump.) To set aside that conclusion based on the Purcell principle, she argued, is wrongheaded. “The general election is around nine months away,” Justice Kagan wrote. The legislature drew the previous map in less than a week and could redraw it in a matter of days, she added, well before the beginning of absentee voting in the primary. But the majority seems to have embraced what Mr Hasen calls a “Purcell principle on steroids”. Even timely, compelling lawsuits challenging electoral maps face strong headwinds at America’s highest court.

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