How State Courts Can Help Deflect the Supreme Court’s Latest Blow to Multiracial Democracy

With its April ruling in Louisiana v. Callais, the Supreme Court delivered yet another blow to the Voting Rights Act, specifically Section 2, which governs race in redistricting. The decision was sad and utterly predictable, but still nothing short of astonishing. Justice Samuel Alito wrote for the Court’s conservative supermajority, stealthily setting aside 40 years of legal precedent under Section 2 largely on the belief that racism is a thing of the past and extreme partisan gerrymandering is, in effect, a fundamental right of state lawmakers. Callais had a tortured path to the Court, a feature of the case that has undoubtedly been eclipsed by the lawless nature of the ruling itself, all of which reveals that the Supreme Court represents the gravest threat to multiracial democracy in the United States. (I argued as much in a law review article, predicting the outcome and analyzing the ways a Court gone rogue might get to that ruling.)

What’s more? In recent years, the Court has played fast and loose with a “principle” purportedly meant to limit chaos around elections, known as Purcell. But instead of limiting chaos, the Court’s Purcell jurisprudence will hasten and aggrandize the already-problematic impact of the Callais ruling. As the nation’s redistricting wars inevitably continue — in this election season, the 2028 presidential campaign, and even the next decade — state courts can help stave off democratic erosion by resisting the urge to invoke Purcell.

The eponymous Purcell principle, which dates back to 2006, stands for a few broadly defensible propositions. Courts presiding over election litigation must proceed with caution in the run-up to contests. Judges should keep in mind the importance of stability in election rules and, accordingly, should hesitate before issuing orders that would materially alter those rules. In general, courts should exercise greater restraint if their rulings carry the potential to confuse the electorate, and more so in the period immediately prior to voting.

Again, a broadly defensible idea. But, as they say, the devil is in the details. And the details are precisely where Purcell is lacking. The doctrine has serious problems both in theory and in practice, so much so that I previously concluded that “Purcell is mostly a charade.” For one, Purcell applies only to court-issued rule changes, not election rule changes more broadly. While it’s reasonably understandable why we would want to limit interventions at the last-minute to alter election rules, it is unclear why that would not apply to the lawmakers whose careers depend on the outcome of those election rules. Indeed, the Purcell principle incentivizes elected officials and their co-partisans to change rules to their benefit, including on the eve of elections — and even when voting is already underway. With the knowledge that adherence to Purcell means courts will not strike down these last-minute changes at the risk of being reversed on appeal, self-serving lawmakers are effectively afforded one free election under potentially illegal voting rules.

Exacerbating this last-mover problem is the fact that Purcell does not define what constitutes the lead up to elections. The Supreme Court has invoked Purcell some nine months before the election, yet has refused to adhere to it even when voting had already started. And still, somehow, Purcell has also developed as an iron-clad rule. The Court seems to suggest that it should prevent election rule changing orders irrespective of the illegality claimed and whether the orders would even cause confusion.

Confused? So is the election law community. It is for these reasons and more that I wrote about the doctrine’s application during the pandemic, “Purcell has constructed an empty vessel for unprincipled decision-making and consistently results in rulings that are detrimental to the nation’s most vulnerable voters.”

The silver lining is that Purcell binds the federal judiciary only. It does not apply to state courts. This is critical because in the United States, the overwhelming majority of election litigation occurs in state courts. As a result, state courts have the potential to become effective venues for taming some of the mayhem that Callais has unleashed.

Consider, for example, the ongoing redistricting litigation in Florida. On the very same day that the Supreme Court issued its decision in Callais, Florida adopted a mid-decade gerrymander, with Republican lawmakers forcing through new congressional districts in a mere two days and over the protest of Democratic lawmakers and many voters. The redistricting gambit in the Sunshine State is in plain violation of the state constitution: In 2010, Florida voters amended their constitution to add a Fair Districts Amendment, which forbids any redistricting “plan or individual district [ ] drawn with the intent to favor or disfavor a political party or an incumbent.” (The amendment also outlaws any map whose “intent or result” is to deny or abridge racial and language minority opportunity “to participate in the political process or to diminish their ability to elect representatives of their choice,” which state officials suggest will be rendered unconstitutional pursuant to Callais.) Now, GOP lawmakers in the nation’s third most populous state have manufactured an extreme gerrymander in an attempt to squeeze out three or four additional congressional seats for their party.

Notably, a high-ranking staffer working for Florida’s governor admitted to using political data in the map’s design, but still the state disputes that it constitutes a partisan gerrymander. The state further argues that the alternative to using the adopted map would be to use one that, it claims, would violate the U.S. Constitution under the Supreme Court’s reasoning in Callais. The contention is weak for several reasons. First, the Supreme Court never ruled on the Florida map. Because there has been no ruling on the merits — or petition seeking one — the state’s argument is speculative. It also disregards the best understanding of voter intent. The contention suggests that voters would have wanted to eliminate the prohibition on partisan gerrymandering if their ban on racial gerrymandering was invalidated which, frankly, is wholly unpersuasive. To be clear, it is nothing short of ordinary for a judge to isolate and invalidate an unlawful provision. This is consistent with the canons of interpretation. They would admonish the court to uphold one part of the law — here, the partisan gerrymandering ban — even if another, the racial equality provision, was found to be unlawful.

Last month, however, a state trial court decided against voting rights plaintiffs who sought to prevent the gerrymander from taking effect. Judge Joshua Hawkes admitted that “the question of the [Fair District Amendment’s] continued constitutional viability is premature.” Nevertheless, the court has permitted the use of the challenged redistricting plan for the midterm election. The 2024 election, for context, was the best year for this century for a Republican presidential candidate in Florida, with Donald Trump winning 56 percent of votes cast in the state. Now, just two years later, Republican legislators have rammed through a map that, notwithstanding the constitutional ban on a partisan gerrymandering, will likely give them control of a full 85 percent of the state’s House delegation. But, according to Hawkes, “the potential partisan intent in the 2026 map is the lesser of the two evils.”

Importantly, Hawkes added, “the election machinery of the state is already underway” — citing Purcell. Characterizing it as something “of a federal prudential policy of restraint for federal courts not throwing state elections into disarray,” he called Purcell “a common-sense and sound principle.” With the primary and the general election coming in months, he concluded that “the public interest weighs more in favor of certainty than a haphazard judicial mandate of discarded maps.” Purcell has, again, been enlisted by antagonists of democracy. According to the Florida court’s ruling, which plaintiffs are fighting in the state’s higher courts, it would be less confusing for voters to use a rigged map approved in a partisan miasma just weeks ago.

How, then, should state courts resolve questions regarding election rule challenges as we venture deeper into the campaign calendar? I recommend three things.

First, with respect to Purcell, “End it, don’t mend it.” State courts have a far better approach independent of that federal policy. States can draw on longstanding and well-developed doctrines and principles of equity that can be — and have been — applied to foster free and fair elections. The tests that courts apply to determine whether some election regulation should be enjoined or a lower court order ruling stayed have been designed to assess the likely outcome of the case on the merits, as well as the potential harm that a court ruling (or abstaining) would pose to the parties and the public. Likewise, courts decide whether to issue writs of mandamus (i.e., to mandate a government official to perform some conduct based on the certainty or clarity of the legal rights and duties at issue), as well as the adequacy of other available remedies. And they decide whether, under the circumstances, laches should bar courts from ruling because litigants showed unreasonable delay in bringing their claims. These are, again, well-established principles. They are also pointed and holistic, focusing courts on the actual issue in contention. They aid resolution based on balance, in contrast to Purcell, which acts more as a trump card.

Second, be thoughtful that you are, in fact, dealing with elections, which are both central to constitutional democracy and unique events in and of themselves. This means that courts need to account for things that separate elections from other types of legal disputes. Courts must be mindful of voter registration deadlines and the time needed to print and mail ballots. They need to ensure clarity of the electoral districts and as well as of qualifications and preconditions to voting itself. Tinkering with any of these can cause confusion — irrespective of who does the tinkering — but the amount and nature of the confusion is likely to materialize differently. The thousands of U.S. voting jurisdictions have different rules, so a one-sized-fits-all solution is unlikely to be ideal. Because they are faced with a broad array of election law questions, however, state courts are institutionally positioned to address them with nuance, considering the facts presented and using, yes, common sense. Instead of applying a sweeping rule like Purcell based on untested empirical assumptions, especially about confusion, courts should engage in a probing inquiry and make informed judgments — to promote fairness in the democratic system.

Finally, courts should provide reasoning for rulings. The executive branch “holds the sword of the community,” Alexander Hamilton wrote, while the legislature “commands the purse” and authors “the rules by which the duties and rights of every citizen are to be regulated.” Courts, however, “have neither force nor will, but merely judgment.” Judges speak in the register of law, equity, facts, and reason, and they must weigh these delicate matters in the midst of a partisan storm. As such, they should make their opinions plain for all to see, avoiding summary, shadow docket-type rulings that we have become all too used to seeing from the U.S. Supreme Court. At a time when unreasoned orders already bedevil U.S. election administration, the worst thing for democracy would be to have state courts — especially apex courts — emulating what is occurring at One First Street. In this hyper-polarized era in particular, state courts will be less likely to be perceived as ordinary partisan actors if they provide their decisions (and the basis for them) to the public, allowing them to be analyzed and critiqued on their own terms.

Justice Ketanji Brown Jackson issued a sharp dissent from a decision stemming from the fallout in Callais. In it, she rebuked the Court for expediting the Callais judgment at Louisiana’s request, a break with Supreme Court rules that facilitated the state’s race to eliminate Black voting power before the midterm election — and after voting had already begun. In granting the motion, the Court revealed its own hypocrisy by ignoring “the so-called Purcell principle,” Jackson wrote. State courts need not follow the messy path that the Supreme Court has blazed in the leadup and aftermath of Callais. Instead of allowing “principles [to] give way to power,” Jackson urged, they can use their station to ensure principle emerges from the bottom up.

Wilfred U. Codrington III is the Walter Floersheimer Professor of Constitutional Law at Cardozo Law School and the co-author of The People’s Constitution: 200 Years, 27 Amendments, and the Promise of a More Perfect Union. He is also a fellow at the Brennan Center for Justice.

Suggested Citation: Wilfred U. Codrington III, How State Courts Can Help Deflect the Supreme Court’s Latest Blow to Multiracial Democracy, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (June 9, 2026), https://statecourtreport.org/our-work/analysis-opinion/how-state-courts-can-help-deflect-supreme-courts-latest-blow-multiracial