Did Supreme Court Violate the Purcell Principle in Arizona Voting Case?

Rick Hasen and Derek Muller offer competing takes on the RNC v. Mi Familia Vota order.

Last week, in RNC v. Mi Familia Vota, the Supreme Court granted a partial stay of a district court order enjoining portions of Arizona's election laws that require proof of citizenship for voter registration. The question splintered the justices. Justices Thomas, Alito and Gorsuch would have stayed the district court order (allowing the Arizona law to take effect) in full, while all four female justices (Kagan, Sotomayor, Barrett and Jackson) would have denied the stay request across-the-board. Thus the Chief Justice and/or Justice Kavanaugh made the difference (possibly "or" because only one of them needs to have voted with the female justices to deny part of the stay request).

Over at the Election Law Blog, there is a little debate over whether this order violates the "Purcell Principle," which seeks to prevent meaningful changes to election laws or election administration in the run up to election day.

Rick Hasen thinks the order violates the principle, because it alters and complicates the rules governing voter registration. Although he's not a fan of Purcell, he thinks the Supreme Court should be criticized for not applying it consistently. He writes:

beginning today, people who try to register to vote using the state form who do not provide documentary proof of citizenship while registering to vote will not be allowed to register at all. This is a change from the past when they could vote at least in federal races. It's going to create administrative confusion and voter disenfranchisement in the period before the election. Although the plaintiffs in the case raised the Purcell issue repeatedly, the Supreme Court ignored it here. . . .

The instructions on the state form are incorrect, there's not going to be enough time to get the word out to voters, and procedures have to change with the election just weeks away. How a court that is committed to Purcell could allow this to happen is inexplicable.

Derek Muller takes a different view. According to Muller, Purcell is not about whether the Supreme Court should stay its hand in the period just before an election, but whether the federal judiciary should. He writes:

I think the opening description of Purcell, one that "discourages court orders in the period before the election on grounds that it can cause election administrator difficulties and voter confusion," isn't necessarily the right framing. I think Purcell is about court orders that change the legal status quo, not simply any change.

Consider three of the major Court decisions here:

Purcell: The Arizona legislature enacted a statute on voter identification; the Court discourages a court from issuing an order changing the status of that statute too close to an election.

RNC v. DNC (2020): The Wisconsin legislature enacted a statute on the date of holding an election; the Court discourages a court from issuing an order changing the status of that statute too close to an election.

Merrill v. Milligan (2022): The Alabama legislature enacted a statute setting boundaries in legislative election; the Court discourages a court from issuing an order changing the status of that statute too close to an election.

RNC v. Mi Familia Vota fits this pattern exactly. The Arizona legislature enacted a statute in 2022 about proof of citizenship; the Court discourages a court from issuing an order changing the status of that statute too close to an election.

So in this posture, here's the typical issue: there is a law on the books (new or longstanding) that a plaintiff tries to enjoin from operation. The plaintiff is likely to succeed on the merits, but the defendant argues the timing precludes the injunction. . . .

if the Court is serious about Purcell, . . . the majority has it right. The problem is a district court's decision to enjoin operation of a statute close in time to an election. If we are close to an election, the court should not enjoin the operation of a statute under Purcell. There may be other equitable considerations at stake, and there may be concerns about election administration, but those are distinct issues.

Professors Hasen and Muller are both more expert on this question than I am, but Professor Muller's account is more consistent with the way that I have understood Purcell. As I see it, if the principle is to apply to lower courts, then the Supreme Court has no choice but to intervene no-less-close to an election than the offending lower court if the principle is to mean anything at all. To which I suspect Professor Hasen would reply: Perhaps that is a reason not to have this principle in the first place. I take the point, but would question whether abandoning Purcell altogether would make it too easy to game election rules with strategic litigation.

UPDATE: Hasen responds to Muller.

Comments

[JoeFromtheBronx]

The one or two justices that split the difference caused confusion. An explanation of why they split the baby would have been useful.

[Joe_dallas]

Purcell prevents changes to election law too close to an election (for good reasons ). The law was passed in 2022. How is that "too close" to an election?

[r]

The injunction was issued too close to the election, not the law itself.

[David Nieporent]

Purcell prevents changes to election law too close to an election

No; it prevents court action that affects election administration too close to an election. Purcell is not meant to restrict legislatures.

[JasonT20]

What was the timing of the lawsuit relative to the passage of the law in 2022? When did the 2022 law actually first take effect? Also, if there was some delay not on the part of the plaintiff seeking to block the law that pushed the ruling to be close to the election, then would that affect the application of Purcell?

[Brett Bellmore]

It's an interesting case: The law was passed by the legislature in 22, but had not been enforced because Democratic state officials were refusing to implement it, NOT because of judicial action. Those officials were simply refusing to comply with it.

So it's a long standing law at this point, which got enjoined by a court only recently. Is the status quo that the law was not being enforced, or that it was legally in effect? Both are true.

The majority on the Court seem to be taking the position that the status quo is that it was a legally enacted law which was at least nominally in effect, even if some partisan officials were refusing to follow it.

[Purple Martin]

Brett, that is incorrect—the RNC sued notover the entire law, but only over three parts that been enjoined by the district court— but you'd have to read Hasan's rebuttal to know it.

There was a law on the books in Arizona that would have changed those procedures in a few ways, but three parts of that law had been put on hold by the district court and never enforced. The RNC went to the Supreme Court in the weeks before early voting started to get a change in the status quo, so that the three parts of the law that had been on hold could be enforced.

And note two of those are still enjoined.

[Brett Bellmore]

I think you missed my point.

The law in question was enacted in ’22, but the challengers to the law didn’t bother asking for an injunction, because the (Democratic) state officials in charge of enforcing it were refusing to do so.

It wasn’t until May of this year that a final judgement capable of being appealed was entered, enjoining enforcement (part of) of the law.

In July, the injunction got stayed, and Maracopa county started enforcing the law.

Then the stay got lifted on the basis of Purcel on August 1st.

And now the Supreme court has just un-lifted the stay...

This raises the interesting question: Is the Purcel relevant status quo that the courts are not supposed to disrupt close to elections the the non-enforcement by election officials, or the law being legally in effect? Who violated Purcel? The court that entered the injunction in May? The court that stayed that injunction in July? The court that lifted the stay in August?

It’s actually a pretty complicated case, even setting aside that the injunction was based in the first place on a consent agreement by the executive branch, that happened before the law was enacted, and can the executive really take the legislature’s power to enact laws away by entering into a consent agreement?

[Purple Martin]

Appreciate noting Hasan’s further rebuttal, but a bit of the reasoning would have been helpful. This extract seems to capture it.

Before the Supreme Court’s order, the status quo was that a person registering to vote in Arizona using the state form but without providing documentary proof of citizenship could vote in federal races. Under the Supreme Court’s order, starting now in the weeks before the election, an eligible Arizona resident who attempt to register using a state form without providing documentary proof of citizenship will have their registration rejected and therefore may be disenfranchised.
…
The Supreme Court’s order seems to violate the harm that Purcell flags: “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.” That’s exactly what’s happening on the ground in Arizona: voter confusion. Use the wrong form now (but not before last week) and—poof!—you are disenfranchised from voting for the President (and for both houses of Congress).

Derek tries to get around this by claiming that the status quo is the law on the books, even if that law was never enforced. Certainly that’s a way of distinguishing the cases applying Purcell that Derek flags, but it sure isn’t consistent with the mischief that Purcell is supposedly remedying.

[Brett Bellmore]

The problem with his position is that the mischief Purcell was supposedly remedying was judicial mischief. The state legislature could enact a law tomorrow, and Purcell would say, "Stay out of it" to the judiciary.

[Lee Moore]

What a hack Hasen is. Here’s his disingenuous spiel from the update :

”There was a law on the books in Arizona that would have changed those procedures in a few ways, but three parts of that law had been put on hold by the district court and never enforced. The RNC went to the Supreme Court in the weeks before early voting started to get a change in the status quo, so that the three parts of the law that had been on hold could be enforced.”

Here’s the actual timeline.

1. The Arizona law was passed in 2022
2. The District Court entered its judgement on 2 May 2024, having delayed its final judgement since October the previous year. So that no appeal could be made before 2 May 2024. That – the May 2024 judgement - is the “status quo” that Hasen appeals to.
3. The RNC immediately applied to the 9th Circuit for a stay that the 9th finally declined on 1 August 2024.
4. The RNC applied for an emergency stay to SCOTUS on 8 August
5. SCOTUS partially granted the stay on 22 August 2024

So a law that was passed in 2022 was hung up in District Court until May this year when it was enjoined by the District Court (the Hasen “status quo”) – the RNC applied for stays at the 9th and then SCOTUS more or less instantly. Virtually the whole period since the District Court enjoined the law in May has been consumed by the 9th Circuit slow walking the stay application.

Which Hack Hasen characterizes thus :

“The RNC went to the Supreme Court in the weeks before early voting started to get a change in the status quo”

Yeah right. They went to the Supreme Court as soon as the 9th Circuit moved the case into its out-tray. It had been sitting in its in-tray since May, when the District Court changed the status quo by enjoining the law.

[CindyF]

The Democrat's position seems to be there should be no laws against illegal ballots being cast since they depend on them to win elections. Or maybe their position is that non-citizens should be able to vote in order to elect candidates the progressives prefer. That's why they register the illegal aliens to vote once they cross the border.

The fact that Democrats are so against election security tells me that they cheat and count illegal votes in order to win. Otherwise, they would insist on election security and transparency in the counting process. They have fought so hard over the past few years to have "every vote count", Even illegal votes.