The Purcell principle: A presumption against last-minute changes to election procedures

This election explainer was written by experts from Election Law at Ohio State, a program of the Moritz College of Law. It is part of SCOTUSblog’s 2020 Election Litigation Tracker, a joint project with Election Law at Ohio State.

Under the Purcell principle, courts should not change election rules during the period of time just prior to an election because doing so could confuse voters and create problems for officials administering the election. The principle takes its name from Purcell v. Gonzalez, in which the Supreme Court reversed an October 2006 decision of the U.S. Court of Appeals for the 9th Circuit blocking an Arizona voter ID law during that year’s midterm election. The district court had initially denied the plaintiffs’ preliminary motion to block the law. The 9th Circuit’s ruling blocked the law until an appeal on the merits could be heard, in effect changing the rules for the November election. The Supreme Court based its decision on the short amount of time between the 9th Circuit’s order and the election, the need of Arizona election officials for clear guidance, and the 9th Circuit’s lack of an explanation for its decision.

Litigants typically assert Purcell arguments when asking an appellate court to block, or “stay,” a lower court decision that would change the rules for an upcoming election. In these circumstances, litigants seek to prevent the decision from taking effect until a higher court can hear an appeal on the merits of the case. In addition to the election-specific considerations discussed in Purcell, courts apply a broader standard for reviewing these motions. This standard involves weighing: (1) the likelihood of success on the merits of the appeal, (2) whether there would be irreparable harm to the party seeking to block the decision if it were permitted to stand, (3) whether blocking the decision would substantially harm other parties to the case, and (4) the public’s interest in the matter. Courts view the first two factors as most critical.

Many lower courts and several subsequent Supreme Court cases have referenced the Purcell principle. In the 2014 case of Veasey v. Perry, the Supreme Court let stand an October decision of the U.S. Court of Appeals for the 5th Circuit allowing a new Texas voter ID law to remain in effect for the November election. The district court had found the new law unconstitutional earlier in October, but the 5th Circuit, relying in part on Purcell and citing logistical difficulties in re-training thousands of polling workers, blocked the district court’s decision. While the Supreme Court did not provide reasons for its majority decision, Justice Ruth Bader Ginsburg wrote a dissenting opinion asserting that a proper application of Purcell would have dictated a different result. According to Ginsburg, there was little risk that the district court’s decision would confuse voters or cause much disruption to Texas’ electoral process. The decision merely would have reinstated election rules in place for the previous 10 years, prior to adoption of the new law, that were very familiar to Texas voters. Ginsburg also asserted that the 5th Circuit placed too much emphasis on the potential for disruption to the election and neglected the broader standard for reviewing motions to block lower court opinions. Justices Sonia Sotomayor and Elena Kagan joined the dissent.

This year, in a 5-4 ruling on absentee voting in Republican National Committee v. Democratic National Committee, both the majority and the dissent relied on Purcell. One day prior to Wisconsin’s April primary election, the Supreme Court blocked a district court ruling issued five days before the election that extended the deadline for submitting absentee ballots. The district court based its decision on an immense backlog of absentee ballot requests due to concerns about voting in person during the coronavirus pandemic. (Local election officials were unable to process the unprecedented volume of requests that were timely under state law.) Citing Purcell and Veasey, the Supreme Court found that the district court should not have changed the election rules in the specific way that it did so close to the election. According to the five-justice majority, permitting absentee ballots to be cast (not merely postmarked) after the polls closed on Election Day would “fundamentally alter the nature of the election,” and further, the district court’s order preventing the state from announcing election results until extended absentee voting ended could create the kind of confusion cautioned against in Purcell. The Supreme Court did, however, leave in place a portion of the district court’s order, in effect permitting absentee ballots to be postmarked by Election Day even though state law would have required them to be delivered to local election offices by then.

In a dissenting opinion joined by Justices Stephen Breyer, Sotomayor and Kagan, Ginsburg wrote that the Purcell principle should have prevented the Supreme Court from intervening so late in the process. She noted that Wisconsin election officials had already spent several days developing procedures and informing voters of the district court’s requirements. In Ginsburg’s view, the majority’s decision was creating confusion for voters and problems for election officials, while also not taking into account that the district court had ruled in the context of a rapidly evolving public health emergency.

Litigants will undoubtedly continue to assert the Purcell principle when arguing that court decisions changing election rules close to an election should be blocked while an appeal is pending. In addressing these arguments, courts will examine the potential for voter confusion and any practical challenges for election officials, in addition to the considerations of the broader standard. Courts will have to weigh the various concerns, including whether new and unanticipated developments necessitate some sort of response despite potential disruption, likely without a lot of time to decide.