A challenge to the Supreme Court's recent election law decisions

Regular readers of this blog probably have noticed my obsession with Supreme Court orders. And regular readers of Rick Hasen's election law blog will also have noticed that many of the Supreme Court orders controversies are election-law-related, and that one of the Court's recent decisions, Purcell v. Gonzalez, seems to loom large in that area.

Rick has now followed up with a more extended analysis of how the Court ought to think about election-law-related orders decisions. Here's the abstract of Reining in the Purcell Principle:

About a month before the 2014 election, the United States Supreme Court issued a series of four extraordinary orders in election law cases. Without any explanation, the Court: stayed a district court order which would have required Ohio to restore extra days of early voting; stayed a Fourth Circuit order (partially reversing a district court) which would have restored same day voter registration and the counting of certain provisional ballots in North Carolina; vacated a Seventh Circuit stay of a district court order barring Wisconsin from implementing its new strict voter identification law; and refused to vacate a Fifth Circuit stay of a district court order which would have barred Texas from continuing to use its new strict voter identification law. The district court, after a trial on the merits, had declared Texas's law unconstitutional and in violation of the Voting Rights Act.

The orders appeared contradictory, for example by allowing strict voter identification requirements to be used on Election Day 2014 in Texas but not Wisconsin. But the apparent common thread was the Supreme Court's application of "the Purcell principle:" the idea that courts should not issue orders which change election rules in the period just before the election. This idea has appeared in earlier Supreme Court cases, most prominently in Purcell v. Gonzalez, a 2006 short per curiam case in which the Court vacated a Ninth Circuit injunction which had temporarily blocked use of Arizona's strict new voter identification law. In this symposium Article, I argue the Supreme Court should rein in the Purcell principle. Certainly the potential for voter confusion and electoral chaos raise a strong public interest argument against last minute changes in election rules. But under normal Supreme Court remedial standards for considering stays and injunctions, the effect of a court order on the public interest is only one factor to consider. Although the precise test the Court uses in these emergency situations is somewhat fluid and uncertain, there is no doubt that ordinarily the Court considers the likelihood of success on the merits and relative hardship to the parties as two crucial factors in deciding whether to grant or vacate a stay or impose an injunction. By making the Purcell principle paramount, the Court runs the risk of issuing orders which can disenfranchise voters or impose significant burdens on election administrators for no good reason. Had the Court applied all the ordinary appropriate factors for emergency relief to the four 2014 election cases, in addition to special concerns attendant in election cases, there is a strong argument it would have reached a different decision in at least the Texas case and potentially in the North Carolina case.

Part I of this Article explains the tests the Court applies in considering emergency stays and related orders, arguing that the Purcell principle should properly be understood not as a stand-alone rule but instead as relevant to one of the factors (the public interest) the Court usually considers. Part II applies the proper standards to the four 2014 emergency election cases considered by the Supreme Court, arguing that the Court got it wrong in at least the Texas case and possibly in the North Carolina case. Part III briefly argues that, regardless of whether the Supreme Court agrees with this call to rein in the Purcell principle, the Court should issue opinions, even weeks or months after the Court acts in an emergency elections case, explaining its reasoning. Such opinions would provide valuable guidance to lower courts considering election cases and help legitimize the Court's actions by making them more transparent. It also might discipline the Justices to decide controversial cases more consistently.

I'm not sure whether I share Rick's assessment of the outcomes in these cases, but I am inclined to agree with his process points in Part III, as will become more apparent soon.

[The eagle-eyed reader will notice several citations in Rick's paper to my forthcoming Foreword in the NYU Journal of Law and Liberty, on the Supreme Court's orders docket. That should be out very soon; watch this space.]