A legal dictum known as “the Purcell principle” admonishes federal courts not to grant an injunction suspending the operation of a state’s election laws without first considering the extent to which such a suspension might — if it occurs too close to an election — confuse voters and discourage them from voting.
Since the beginning of the year, Democrats and their political allies have filed hundreds of lawsuits (411 as of this writing) challenging state election laws, and almost all of them included requests for preliminary injunctions. Those cases gave federal courts numerous opportunities to apply the Purcell principle, and the effect has generally been to prevent last-minute changes to voting laws, which is all to the good.
Last week, however, United States District Court Judge William L. Osteen applied the Purcell principle in a way that enabled the North Carolina State Board of Elections (SBE) to change absentee ballot rules, not just on the eve of an election, but after voting had already started. Making matters worse, this week the U.S. Court of Appeals for the Fourth Circuit upheld Judge Osteen’s decision and praised him for applying the principle the way he did.
Given that such last-minute changes are precisely the harm the Purcell principle is supposed to prevent, those results are surprising. As I will explain, they are also wrong.
The Purcell Holding and Its Procedural Context
The Purcell principle was originally promulgated in a brief, unsigned opinion handed down by the U.S. Supreme Court in 2006 in a case called Purcell v. Gonzalez. The Purcell plaintiffs had filed a lawsuit challenging Arizona’s voter ID law on constitutional grounds, and like most plaintiffs in such cases, they had requested a preliminary injunction that would suspend enforcement of the ID requirement while the lawsuit was pending. The federal District Court that originally considered their motion found that they had failed to satisfy the procedural requirements for an injunction and denied their request. On appeal, the U.S. Court of Appeals for the Ninth Circuit reversed and granted the injunction, but that decision was itself overturned by the Supreme Court, which lifted the injunction and allowed the election to proceed with the ID requirement in place.
In its Purcell opinion, the Supreme Court explained that it had reversed the Court of Appeals because the Court of Appeals had failed to provide an explanation “showing the ruling and findings of District Court to be incorrect.” Having reversed on that basis, there was no need for the Supreme Court to even discuss the proximity of Arizona’s upcoming election. Nevertheless, it did, noting:
Confidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy. Voter fraud drives honest citizens out of the democratic process and breeds distrust of our government. Voters who fear their legitimate votes will be outweighed by fraudulent ones will feel disenfranchised. [T]he right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise. [Quotation marks and citations omitted.]
It then went on to made the observation that gave rise to the Purcell principle:
Faced with an application to enjoin operation of voter identification procedures just weeks before an election, the Court of Appeals was required to weigh, in addition to the harms attendant upon issuance or nonissuance [sic] of an injunction, considerations specific to election cases and its own institutional procedures. Court orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase.
Because it was not a necessary factor in the court’s decision, this observation does not constitute binding precedent that lower courts must follow. It is merely dictum, a bit of friendly advice to the effect that, in cases like Purcell, federal courts ought to consider the ill effects that might follow if existing voting laws are suspended too close to an election. The Supreme Court’s prestige being what it is, most lower courts do try to abide by the Purcell principle, and since the principle itself is quite sensible, it is good that they do.
How Judge Osteen and the Fourth Circuit Misapplied the Purcell Principle
Despite its good sense, it is important to remember that the Purcell principle was promulgated in the context of a specific kind of case. Attempting to apply it in a different kind of case can lead to problems, which is what happened last week when Judge Osteen attempted to apply it in two closely related cases involving the absentee ballot rules in North Carolina: Moore v. Circosta and Wise v. Circosta.
Unlike the plaintiffs in Purcell, in Moore and Wise the plaintiffs are not challenging a duly enacted state election law, nor did they request a preliminary injunction that would suspend the operation of such a law. Instead, they are challenging an attempt by the SBE to suspend various provisions in North Carolina’s election law that are designed to prevent absentee ballot fraud and absentee ballot harvesting, and they requested a preliminary injunction that would prevent the SBE from implementing those changes after the election was already under way.
The Moore and Wise plaintiffs claimed that allowing the SBE to change the rules after voting had already started would violate the right of all North Carolina voters to be treated equally under the law, and after the cases had been consolidated and referred to him, Judge Osteen agreed. He also agreed that the SBE should be enjoined from making those changes. Nevertheless, Osteen also believed the Purcell principle applied to the consolidated cases, and he believed it required him to deny the plaintiffs request for an injunction:
This court believes the unequal treatment of voters and the resulting Equal Protection violations as found herein should be enjoined. Nevertheless, under Purcell and recent Supreme Court orders relating to Purcell, this court is of the opinion that it is required to find that injunctive relief should be denied at this late date, even in the face of what appear to be clear violations.
The plaintiffs filed an emergency appeal to the Fourth Circuit, but the Fourth Circuit affirmed both Osteen’s analysis and his conclusion:
The district court believed that Plaintiffs were likely to succeed on their equal protection claims. But, pursuant to Purcell, the court concluded that injunctive relief was inappropriate at this late date. We rightfully do not disturb that sound judgment from a judge who has been thoughtfully considering these matters for months. [Citation omitted.]
Three members of the court joined in a dissenting opinion that took a very different line. Whereas both Judge Osteen and the Fourth Circuit majority had applied a truncated version of the principle (“Federal courts ordinarily should not alter state election rules in the period close to an election”), the dissent applied an expansive version of the principle that lead to a different result:
Purcell has traditionally been applied against federal courts changing the rules shortly before elections. But there is no principled reason why this rule should not apply against interferences by state courts and agencies. … Whenever interference occurs, it incentivizes an avalanche of partisan and destabilizing litigation against election rules duly enacted by state legislatures. If Purcell did not apply in state courts … election rules would continue to be at the mercy of litigation and rushed, last-minute decisions by state judges. … Therefore, we conclude that Purcell requires granting an injunction pending appeal in this case.
There is certainly a great deal of truth in the first part of that passage, but those considerations do not justify the dissent’s conclusion about what the Purcell principle requires. The precedential value of the Supreme Court’s opinion in Purcell v. Gonzalez can only extend to cases that resemble Purcell in pertinent ways; i.e., to cases in which the plaintiffs are challenging a duly enacted state election law and in which the plaintiffs have requested a preliminary injunction that would temporarily suspend the enforcement of such a law. Before granting an injunction in those circumstances, it makes sense for a court to consider the extent to which granting the injunction might lead to voter confusion and give voters an incentive to remain away from the polls.
As previously note, however, none of those conditions pertain in Moore and Wise. The plaintiffs aren’t challenging duly enacted election laws, nor have they requested an injunction that would suspend enforcement of such laws. Instead, they are challenging SBE’s attempt to change voting rules at the last minute, and they have requested an injunction that would block that attempt and ensure that North Carolina’s election laws are applied as written. Such an injunction could not possibly lead to the kind of voter confusion and abstention that the Purcell principle urges judges to take into consideration; on the contrary, such an injunction would help ensure that those things don’t happen. It makes no sense for courts to apply the Purcell principle in such circumstances, and nothing in the Supreme Court’s Purcell opinion suggests that they should.
The Fourth Circuit’s decision in Moore and Wise is almost certainly headed for the Supreme Court. Whatever else happens when it gets there, the court should make it clear that, far from being a categorical ban on injunctions in election law cases, the Purcell principle is simply an admonition to avoid enjoining the operation of duly enacted election laws both before and during elections.
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