The recent US Supreme Court decision changing voter registration rules in Arizona has voting rights advocates anxious about how the justices will approach emergency election appeals in the runup to the November election.
Not only was the Arizona ruling a missed opportunity for the justices to explain when they will engage in election and voting cases, experts say it has also heightened concern that the court is unevenly applying a murky legal principle intended to reduce chaos rather than add to it.
The “Purcell principle,” rooted in a 2006 Supreme Court decision,warns federal courts to avoid making last minute changes to the status quo of voting rules before an election.
But 18 years later,what counts as “status quo” and “last-minute” stillremains up for debate. That lack of clarity – and what critics see as an inconsistent application of the doctrine – could be a critical factor in this year’s election.
The Arizona ruling “iscreating additional uncertainty around a principle that already had very few concrete parameters,” said Sophia Lin Lakin, director of the ACLU’s Voting Rights Project. “It’s hard to understand exactly what the court is doing when it comes to Purcell and that creates a lot of anxiety that the rule could be applied in a way that’s inconsistent and tips the scales one way or the other.”
Rather than clarifying Purcell in its order in the Arizona citizenship voting registration case, critics say the justices managed to muddy the water by avoiding it altogether.
“If the entire purpose of Purcell is to reduce the risk of voter confusion, how does that come within a country mile of the difference-splitting result that we saw in the Arizona case?” asked Steve Vladeck, a CNN Supreme Court analyst and professor at Georgetown University Law Center.
As in past years, the Supreme Court is almost certain to be asked to take up a series of down-to-the-wire election-year lawsuits ahead of the November election. Some of those cases are already percolating in lower courts, and some are likely to appear without much warning.
In the first such case this election season, a divided Supreme Court on Thursday allowed one part of a Republican-backed voter registration law in Arizona to take effect: New registrations for voters using a state form must now include proof of citizenship. The court’s liberal wing, along with conservative Justice Amy Coney Barrett, would have kept all of the proof-of-citizenship requirements on hold.
But an undefined majority of the court a blocked another law that would have barred voters who previously did not document their citizenship from casting a ballot for president this year or voting by mail. Three conservatives – Justices Clarence Thomas, Samuel Alito and Neil Gorsuch – balked at that outcome, saying they would have allowed all the new regulations to take effect.
The unusual vote split meant that either Chief Justice John Roberts or Justice Brett Kavanaugh – or both – allowed part of the Arizona law to go forward but not all of it. It’s not clear why at least one of them split the difference.
Though it has sometimes cited Purcell, even in brief election-case orders, the high court didn’t do so last week. It’s common for the justices to say little when resolving emergency cases – but some saw the silence as especially puzzling in the Arizona matter, given how much attention was paid to Purcell as the dispute made its way through the lower courts.
There has to be some flexibility in the doctrine because some changes to election rules can take longer to implement than others, said Chad Ennis, vice president of the conservative Honest Elections Project. Imposing a set time period for when Purcell applies, he said, wouldn’t work.
But, he said, a little more certainty about when the rule applies, and when it doesn’t, wouldn’t hurt.
“It’s something we need, but it needs some fleshing out,” Ennis said. “I’d like a little more clarity on when Purcell applies going into the election.”
Avoiding election chaos, or not
As lower courts thrashed out the Arizona case, Republicans argued that Purcell shouldn’t apply at all. The proof-of-citizenship changes at issue were initiated by the state legislature. Purcell, they argued, is about keeping courts – not state lawmakers – from making late-in-the-game election rule changes.
But Democrats said it was Republicans’ legal appeals that were risking last-minute “chaos and confusion” in county election offices. After all, a district court’s original decision blocking Arizona’s law was issued in late 2023 – more than a year from the election.
The Supreme Court last invoked the Purcell principle in May in a case dealing with Louisiana’s new congressional map – a map that created a second majority-Black district and benefits Democrats. Perhaps sensing an expansion of Purcell, the court’s three liberals dissented, with Justice Ketanji Brown Jackson writing that it was premature for the Supreme Court to intervene at all. That decision was handed down nearly six months out from the state’s congressional primary.
In 2022, the court relied on Purcell in another redistricting suit – this time in Alabama. A 5-4 majority allowed a congressional map drawn by state Republicans to remain in place, even though a lower court said the map likely violated the Voting Rights Act by diluting the political power of Black voters. The court ruled in that matter in February 2022, about four months before that state’s primary (though early voting began in late March).
“When an election is close at hand, the rules of the road must be clear and settled,” Kavanaugh wrote at the time. “Late judicial tinkering with election laws can lead to disruption and to unanticipated and unfair consequences for candidates, political parties, and voters, among others.”
The Supreme Court eventually tossed out the map months later, but not until after voters had used it for the 2022 midterm. With a second Black-majority district in the state, Democrats now have a pickup opportunity in November.
“The problem is, these cases are always in an emergency posture, so you’re always dealing with short fuses,” said Derek Muller, a professor and elections expert at the Notre Dame Law School. “But the court just seems not interested in adding more details about its basis for granting or denying.”
