States Grapple with Problematic Rule from Federal Voting Cases 

In Purcell v. Gonzalez, the U.S. Supreme Court instructed federal courts to exercise extreme caution before changing electoral rules in the lead-up to elections. Such “orders affecting elections,” the Court observed, “especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls.”

The problem with these cautionary words, however, is that the Court painted the Purcell principle (a term first coined by Rick Hasen) with overly broad strokes. When is too close to an election? What if a law is flagrantly unlawful? How should courts actually assess the likelihood of confusion and electoral chaos? Building on the ruling’s ill-defined terms, the Supreme Court has subsequently allowed Purcell to be manipulated and applied in unprincipled, seemingly outcome driven ways, issuing emergency orders characterized by improbably high partisan alignment among the justices.

One example of Purcell’s malleability occurred in litigation over Florida’s Amendment 4, a 2018 measure to restore voting rights to formerly incarcerated persons that was approved by nearly two-thirds of the state’s electorate. The state legislature responded cynically to this display of overwhelming popular support by adopting a law that required otherwise eligible individuals to repay all court-imposed legal financial obligations, such as fees and fines, in order to be re-enfranchised. After a federal trial court in May 2020 ruled that portions of the law were unconstitutional and set out a process for registering voters, the U.S. Court of Appeals for the Eleventh Circuit in July stayed the lower court’s order.

The effect of the stay was to alter voter registration requirements that had been in effect for formerly incarcerated individuals just 19 days before the close of the registration period for the state’s primary election. Despite the obvious risk of confusion, the Supreme Court sustained this last-minute appellate order, which subjected returning citizens to the threat of criminal prosecution for failure to comply with the now-unblocked law. In a scathing dissent, Justice Sonia Sotomayor, joined by Justices Ruth Bader Ginsburg and Elena Kagan, argued that the Eleventh Circuit’s ruling “has created the very ‘confusion’ and voter chill that Purcell counsels courts to avoid.” 

As I argued in a paper evaluating the justices’ own use — or abuse — of Purcell during the pandemic, in practice, the principle has proven “vacuous, self-contradictory, amorphous, and more prone to aggrandizing election-related concerns," including "those that the Supreme Court suggested it should mitigate.”

Now, as the Purcell principle has gained prominence in the federal courts, litigants in state proceedings are also increasingly raising it as a defense. State courts have taken varied approaches in response to such arguments — as I describe in a new law review article — from rejecting Purcell altogether, to reflexively adopting it, to modifying its terms, often demonstrating a misunderstanding of its mandate and purpose.

As an initial matter, basic tenets of federalism make clear that Purcell does not apply to state court proceedings. State courts enjoy the final say on the meaning and application of state constitutions and laws, including election regulations, and the Purcell principle limits intervention by federal courts only.

Justice Brett Kavanaugh, perhaps Purcell’s most ardent backer on the Court (and certainly its most prolix expositor), recently affirmed that Purcell’s application is limited to federal courts. In a concurrence explaining his vote to stay a lower court ruling ordering the Alabama legislature to adopt a remedial congressional map, based on the court’s finding that the existing map illegally diluted Black voters’ ability to elect a candidate of their choice, Kavanaugh described Purcell as the principle “that federal district courts ordinarily should not enjoin state election laws in the period close to an election, and . . . that federal appellate courts should stay injunctions when . . . lower federal courts contravene that principle.” Chief Justice John Roberts also subscribes to Purcell’s federalism principle, having written that Purcell does not “implicate[ ] the authority of state courts to apply their own constitutions to election regulations,” but rather only “federal intrusion on state lawmaking processes.”

There are strong reasons that state courts might conclude that different principles are appropriate to govern state litigation. A rule pronounced by a federal court may not accord with the peculiarities of a state’s own legal environment and political culture. State courts may humbly resolve that a federally established principle stems from an erroneous judgment — that it is a product of flawed factual assumptions or poor legal reasoning, for example, or that it contravenes basic, well-understood norms. Appreciating as much, New York’s supreme court ruled in 2022 in a high-profile partisan gerrymandering case that “reliance on the federal Purcell principle” in state litigation “is misplaced” because Purcell “does not limit state judicial authority . . . to remedy violations of the State Constitution.”

Other state courts, however, have elided or disregarded Purcell’s federalism principle. Some courts have denied relief on the basis of Purcell’s admonition without any discussion of whether, as an initial matter, Purcell constrains their authority to issue relief and displace unlawful measures — implying, mistakenly, that it does. For example, a majority opinion of the Tennessee Supreme Court invoked Purcell as grounds for its ruling without ever establishing that it is applicable, and even over a dissenting opinion stating explicitly that it is not.

However, most state courts have refrained from treating Purcell as the ironclad rule that it seems to have become in federal court. That is, undoubtedly, the upside, as it suggests that judges should assess the circumstances surrounding the election, including the timing, in deciding whether to order relief in a particular case. Beyond that, however, state courts have diverged in their approach to Purcell claims, with some advancing constructions of Purcell that misapprehend its relationship with other legal principles.

One common misapprehension conflates Purcell with laches, an equitable defense based on unreasonable delay in pursuing a claim. Timing is a relevant point of inquiry for courts when both Purcell and laches are at issue, but the doctrines attend to different concerns. Purcell seeks to minimize the potential for chaos in critical election windows. The goal of laches, in contrast, is to discourage litigants from delay in the pursuit of their claims “for an unreasonable and unexplained length of time under circumstances permitting diligence,” denying requested relief where such “dilatory action” may be prejudicial to their adversary.

Some state courts have nevertheless suggested that the two concepts are the same or, at least, their rulings fail to show an appreciation of the difference between them in the election litigation context. In one opinion, a Maryland appellate court made the confounding — and false — assertion that in Purcell, the Supreme Court “addressed the issue of the applicability of laches on an election.” In another pair of cases, the Michigan Supreme Court declined to intervene in a dispute over guidance on challenges to voter eligibility, with the concurring justices suggesting that some time-focused doctrine, “whether it be ‘laches, the Purcell principle, or common sense,” was a key driver in its ruling. In this estimation, it seems, the distinction between Purcell and laches scarcely matters. But surely, that cannot be right.

Another set of analytical flaws has surfaced when parties have petitioned for writs of mandamus. Mandamus orders, like the injunction and stay orders at issue in the Supreme Court’s Purcell line of cases, are court decrees compelling public officials to perform some act. (Injunctions can mandate government actors to either take some course of action or refrain from certain conduct, while stays freeze lower court orders.) Yet the Ohio Supreme Court ruled that Purcell’s relevance to a ballot access case was “questionable, at best,” because while it “forbids injunctive relief in certain election cases,” that court had “never applied Purcell to preclude the issuance of a writ of mandamus.”

Mandamus and injunctive relief are distinguishable, to be sure. But the court’s statement suggests that the former remedy was inapt specifically because the request for it was novel. Instead of probing the facts to assess whether it makes sense to apply Purcell in light of its anti-confusion rationale, the majority rejected the defense largely because parties sought a different, though not wholly dissimilar, form of relief than what others have sought in previous cases. If averting and mitigating confusion can justify withholding a remedy, however, it might reasonably do so whether that remedy is an injunction, stay, or mandamus. Irrespective of how one perceives Purcell and its shortcomings, there is no intrinsic reason for the rule to require courts to deny relief in the form of injunctions and stays, but not mandamus orders.

It is important to reiterate that not all courts have so misconstrued Purcell. Concurring in what he said was “a close case that requires further explanation,” for example, Iowa Supreme Court Justice Brent Appel showcased a firm grasp of Purcell, offering perhaps the most balanced judicial assessment of its contours. Appel’s opinion sets out Purcell’s federalism principle (“Purcell, of course, is infused with federalism concerns, arising from the notion that federal courts should show a degree of caution”) and evinces an acute awareness of its concern with timing (“Purcell should not overshadow the fact that pre-election litigation is better than postelection litigation”). The ruling properly situates Purcell within the overall framework of judicial remedies (“the other traditional factors for equitable relief remain in play”), and, most significantly, it exhibits an appreciation of the judiciary’s overriding goal of fostering fair and robust electoral participation (“a reviewing court must be attentive to vindicating the rights of voters who seek to cast absentee ballots free from unnecessarily burdensome regulation.”).

Litigants will undoubtedly raise Purcell as a defense in a variety of contexts prior to this fall’s election. State courts should understand that the Purcell principle imposes limitations on the federal judiciary, so, as a default, they have no obligation to heed its ill-defined and shapeshifting bounds. Furthermore, they should learn from the Supreme Court’s missteps in applying Purcell, as well as those of other state courts, if they want coherence in their own election laws. Because by further entrenching the idea that lawmakers get “one free election cycle” under illegal rules, courts ultimately stick the voters with the costs — all the while detracting from the ideal of a fair and inclusive democracy.

Wilfred U. Codrington III is the Walter Floersheimer Professor of Constitutional Law at Cardozo Law School. He is also a fellow at the Brennan Center for Justice.

Suggested Citation: Wilfred U. Codrington, States Grapple with Problematic Rule from Federal Voting Cases, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Sept. 11, 2024), https://statecourtreport.org/our-work/analysis-opinion/states-grapple-problematic-rule-federal-voting-cases.