The Volokh Conspiracy
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For Gerrymandered Congressional Districts, The Midterm Primary Date Is The Relevant Deadline
Purcell is appropriate because the outcome of the March midterm effectively settles the race.
The fallout from Abbott v. LULAC has been predictable. Critics allege that the Court has now pushed the Purcell principle out even further to the year before the election. Richard Pildes, for example, wrote:
The latest Texas decision now pushes Purcell out even further, to decisions that come down before an election year. This is no longer the "eve of an election" in any meaningful sense.
The Supreme Court stretches the purported disruptive effect of the lower-court decision by saying it came down during "an active primary campaign," but all that means as a practical matter is that the window had opened for candidates to file their intent to run in the March primaries.
Here in Texas, the midterm election will be held in November 2026. But for practical purposes, the key date is March 3, 2026, the party primary date. Indeed, because just about all of the districts are gerrymandered, there are very few competitive seats. The outcome of almost every race will be settled by March. And even earlier, the key deadline happened yesterday: December 8. That was the deadline for candidates to submit to their party's primary. This morning, local talk radio was abuzz with discussions about who did, and did not submit the petitions. Some incumbents decided not to run for re-election. Other new districts have open primaries with people who have never represented that district. There is now a four month crush for candidates to lock up the nomination.
The application of Purcell was especially apt given the nature of gerrymandered districts. People need to know who is running for which districts. The issue in Abbott was not some regulation of how ballots are cast or counted. Those matters can be settled closer to the election. Rather, the Court focused on the most basic question: who is running for what seat. That issue needs to be settled at the earliest juncture.
Pildes writes that the courts could have pushed forward the deadline for candidates to register:
The deadline for filing was still down the road on Dec. 8, three weeks after the lower-court injunction. And federal courts have the power to postpone candidate filing deadlines when needed to ensure compliance with court injunctions.
Perhaps in a theoretical world, candidates can simply continue to campaign for a few more weeks, or even a few more months, without knowing which seat they will run for. Donors will be asked to contribute money to candidates who may never even be on the primary ballot. Candidate will seek endorsements that may need to be later rescinded. Incumbents will run attack ads on opponents who they'll never face. All of these actions impose serious costs on the political process. And all of these actions could be for naught if the maps were changed. An injunction to postpone deadlines would ignore all of these costs.
Of course, the likely response is that the most important role of the courts is to ensure federal law is complied with. Yes and no. The most fundamental question that any court faces is who decides? The duly-elected Texas Legislature chose the maps. A judge in Galveston thought there was probably too much discussion of race, even if he couldn't quite put his finger on what happened. Sometimes, the political process will have to work its way through. Federal judges cannot solve all problems.
Update: To use an analogy, Trump v. Anderson was decided the day before the Super Tuesday primary. Some groups argued that a challenge to Trump's eligibility was not ripe until he was on the general election ballot. Some groups argued that the challenge could only be brought if the joint session certified Trump as the winner. For practical purposes, this challenge had to be resolved before the primary was held. I think similar dynamics were at play in Abbott v. LULAC. Indeed, the challenge had to be settled earlier, as candidates needed to know which districts they would collect signatures for.
Maybe the label of Purcell is not exactly apt. The case here isn't so much about voter confusion, as it is about primary confusion. Maybe that is why the Court didn't cite Purcell. We can call this doctrine Abbott Abstention.
