Justices Sidestep Principle of Avoiding Election Eve Changes (1)

The US Supreme Court over the past two decades has said over and over that federal judges must generally avoid making decisions that alter election rules close to an election, out of fear of confusing voters.

The conservative justices, however, waded into Alabama’s primary with a May 11 order lifting a three-year-old injunction blocking the state from using a map deemed an illegal racial gerrymander.

Over dissent by the three liberal justices, the court cleared a path for Alabama Republicans to swap a congressional map featuring two majority-Black districts held by Democrats with a map that features one.

Alabama’s primary is May 19 and some voters have already cast ballots. But the state’s Republican governor immediately called for August special elections in four congressional districts.

The developments came after the court fast-tracked its April 29 decision in Louisiana v. Callais restricting the creation of majority-Black and Hispanic districts, similarly smoothing the path for Louisiana to use new maps in this year’s midterms. Added together, critics say, the rulings flip what’s known as the Purcell principle on its head.

“Apparently the rule that federal courts should not make rulings that lead to last minute changes in election rules applies to every federal court but the Supreme Court itself,” said Rick Hasen, an election law professor at the University of California Los Angeles.

The decisions have placed the justices deeper into an extraordinary mid-decade redistricting battle amid rising stakes for midterm voting as Republicans cling to their US House majority.

Louisiana’s governor suspended its congressional primaries as the state races to redraw new maps after Callais. Republicans in Tennessee and Florida, likewise, passed their own new maps earlier this month to bolster their advantage in those states. Virginia Democrats also asked the Supreme Court to restore their newly redrawn maps after a state supreme court voided it on state constitutional grounds.

Before the latest round of this fight, the justices in December stepped in to pause a district judge’s decision blocking Texas from using a new map expanding the GOP’s advantage on the basis that it was probably an illegal racial gerrymander.

Then, the court said in an unsigned emergency order, released four months before the Texas primaries, “that lower federal courts should ordinarily not alter the election rules on the eve of an election.”

In emphasizing that point, the court cited a pandemic-era decision from 2020 in which the court said the “wisdom of the Purcell principle” is that it “seeks to avoid this kind of judicially created confusion.”

The court in February also allowed California to move ahead with using a newly drawn congressional map favoring Democrats.

Anti-Confusion Doctrine

The Purcell principle gets its name from a 2006 case in which the court blocked an Arizona voter ID law from going into effect a month before that year’s midterms.

The doctrine strictly binds federal district courts, and it has developed through rulings on the Supreme Court’s emergency docket that often feature little to no explanation. Justice Brett Kavanaugh is an ardent defender, writing in a concurring opinion in 2022 that its rationale against “late judicial tinkering” is a core tenet of election law.

“It is one thing for a State on its own to toy with its election laws close to a State’s elections,” Kavanaugh wrote. “But it is quite another thing for a federal court to swoop in and re-do a State’s election laws in the period close to an election.”

Even so, the court has never defined the meaning of the “eve of an election” or carefully investigated whether new election laws or maps will create voter confusion, said Wilfred Codrington III, a law professor at Yeshiva University’s Cardozo School of Law.

Further, Codrington said, the court’s rulings on the Voting Rights Act and redistricting are opening the door to the very disorder it says it wants to avoid.

“The decision in Callais was catastrophic,” he argued. “These orders themselves show how lawless this decision itself was.”

Justice Sonia Sotomayor in a dissent from the May 11 decision joined by the two other liberals warned the court’s decision would “unleash chaos.” It followed her charge three months earlier that the court wasn’t being consistent as it halted New York’s redrawing of a likely GOP seat via an emergency order.

That drew a rebuttal from Justice Samuel Alito, who called the accusation “baseless” and said that Purcell didn’t apply when the court intervened over a map it “would likely strike down if the cases reached us in time.”

Alabama Saga

Kavanaugh’s opinion offering a separate defense of Purcell came in the first round of the legal fight over Republican-drawn maps in Alabama following the 2020 census.

In a 5-4 decision in February 2022, the justices paused a lower court’s decision that a congressional map including only one district likely to elect a Black representative was illegal. At the time, Kavanaugh said the court’s order would require “heroic efforts” by state officials ahead of its May primaries.

But a year after that map was used in the 2022 midterms, the justices switched course and struck it down. In another 5-4 decision—this time with Kavanaugh and Chief Justice John Roberts in the majority—the court upheld that earlier decision labeling Alabama’s an unlawful racial gerrymander.

The justices then affirmed that ruling after Alabama sought relief from a district court holding that its new map represented intentional racial discrimination. That decision led to Alabama being required to use a map with a second near-majority Black district.

The May 11 decision allows the state for now to revert to the map Republicans drew in 2023 with just one majority-Black district. The justices instructed a three-judge federal panel in the state to reconsider its earlier ruling in light of the recent Voting Rights Act decision.

That court quickly scheduled proceedings . Still, it remains unclear how quickly it will act and whether the state might invoke the Purcell principle were it to face an unfavorable ruling for a third time.