The Purcell Principle and Supreme Court Hypocrisy

The political system in the United States is not close to functioning as it should. The presidency is held by cult leader, convicted felon, and failed President Donald Trump, a cognitively impaired narcissist who sees himself as a king or emperor. Both the Senate and the House of Representatives are controlled by Republicans who have capitulated to Trump and have failed to do his bidding in only the rarest of circumstances. For the most part, both chambers are simply rubber stamps for Trump's wishes. The one hope for preventing the U.S. from falling completely into autocracy has been the judicial branch. Federal judges have routinely ruled against Trump and halted many of his excesses. But at the top of the Judicial branch sits the Supreme Court, dominated by Republican appointees who have acted in what can objectively be called a corrupt manner to protect Republican interests when it comes to voting. Conservative Supreme Court justices have not simply put their thumbs on the scale when it comes to voting rights; they have leaned on the scale with all the body weight they can muster.

At the root of the Supreme Court's efforts to protect Republican interests when it comes to voting is a 2006 decision named Purcell v. Gonzalez. In 2004, the State of Arizona had enacted a voter ID law which imposed strict requirements for proving citizenship in order to register to vote and identification demands in order to vote. While opposition to the law was bipartisan, support came primarily from conservatives. Judicial challenges were launched against the law, and a federal appeals court granted an injunction pending appeal, with the appeal scheduled for after the 2006 midterm election. That meant that the election would take place without the law being in force. The Supreme Court reacted by vacating the injunction, saying that "court orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase." In other words, the appeals court injunction came too close to the election and might cause voter confusion that could result in not voting. Thanks to the Supreme Court decision, the voter id law was in effect for the election.

The idea that court decisions should not be made so close to elections that they might cause confusion became known as the Purcell principle. The decision that coined the term was decided in favor of conservatives. In practice, this has consistently remained the case. The Supreme Court has repeatedly applied the Purcell principle in ways that benefit Republicans and disadvantage Democrats. As such, it is less a "principle" and more a tool for partisanship.

Prior to the 2020 primary elections in Wisconsin, Democrats sought to extend the period for counting absentee ballots and to expand voting by mail. This was in the midst of the COVID epidemic, and voting in person was not considered safe. The Republican National Committee challenged these changes in court, but a district court declined to intervene. The case made its way to the Supreme Court, which cited Purcell in granting a stay of the district court's order. This meant that the changes were not in effect for the election. Once again, Purcell was used to benefit Republican interests.

But the worst application of Purcell has involved voting maps. Section 2 of the Voting Rights Act prohibits restricting the right of citizens to vote on account of race, color, or membership in a language minority group. In practice, this led to voting lines being drawn to ensure minority representation. Otherwise, minority votes would be diluted and minorities would be unable to elect representative candidates. These voting maps have been hotly contested. But as lower courts have protected minority voting, the Supreme Court has repeatedly used Purcell to delay or prevent the utilization of maps meant to provide for minority representation.

According to a report by the National Redistricting Foundation, "In the 2022 elections alone, five maps invalidated by controlling opinions were not fixed because courts refused to change maps under Purcell." To put this more clearly, five maps that lower courts found to be unlawful were allowed to be used by the Supreme Court because it believed the lower court rulings came too close to an election. The first of these involved maps drawn after the 2020 census in Alabama. A three-judge federal district court panel found that the state's congressional map likely violated Section 2 of the VRA, and granted a preliminary injunction to prevent the map from being used in upcoming elections. The state legislature then created a second map which a court also ruled likely violated the VRA and placed an injunction on it. That injunction was stayed by the Supreme Court, resulting in the unlawful map being used in the election. This case was known as Milligan.

While Milligan was working its way through the court system, a lower court in Louisiana enjoined that state's congressional map. The Supreme Court paused that case pending the outcome of Milligan, thereby delaying relief for the discriminatory map. Similarly, a federal court in Georgia found that three maps, those for the state's congressional, state senate, and state house, all likely violated the VRA. However, the court refused to block the maps because of the Supreme Court stay on Milligan.

As a result of the Supreme Court stay on Milligan, which the court justified due to Purcell, the 2022 elections took place based on the maps that lower courts had ruled likely violated Section 2 of the VRA. After the elections, the Supreme Court ruled in Allen v. Milligan that the lower court's ruling that the Alabama map likely violated Section 2 was correct. The case was returned to the lower court, which subsequently ruled that the map did in fact violate the VRA. Similarly, the case in Georgia was affirmed. In Louisiana, the legislature redrew its map again to comply with the VRA. As the National Redistricting Foundation wrote:

[t]he use of unnecessary Purcell postponements ultimately delayed relief that courts considering the issue had determined voters were entitled to. Across these three states alone, over 2.49 million people were denied equal representation for two years and forced to vote under illegal maps because of Purcell.

At the same time that this was happening, the Supreme Court acted to the contrary with regard to maps in Wisconsin. In that state, the state Supreme Court had created maps after the state's legislature and governor could not agree on new districts. The U.S. Supreme Court overruled the Wisconsin Supreme Court ruling and ordered that a new map be drawn. Purcell was apparently not a consideration in this case because the Supreme Court-ordered change came after it had ruled that the election was too close to change Alabama's map. In this case, the failure to invoke Purcell benefited Republicans.

Because of the Supreme Court decision relying on Purcell, the 2022 election in Louisiana had taken place with a map that had been ruled unlawful. After the election, the state legislature finally drew a map allowing for two black majority districts and complying with the VRA. However, this did not settle the conflict over the voting map. A group of white voters challenged the new map on the basis that it discriminated against them. A three-judge panel heard this case in federal court and agreed with the plaintiffs and blocked the new map. The state then sought a stay from the U.S. Supreme Court on the basis that it was too close to the election to create a new map. In this instance, Purcell worked in favor of the minority voters and the Supreme Court ruled that the election be held using the new map that had two minority majority districts. This case was named Louisiana v. Callais.

I'll stop here to summarize where things stood at this point. Purcell v. Gonzalez had established the principle that courts should not make decisions close to elections because such decisions could create voter confusion. There were a number of issues with this principle, however. First, "close" was not defined. Second, the Supreme Court had targeted this principle at lower courts, while reserving its own right to make changes close to elections. Third, possibly because of these two points, the Supreme Court had applied the Purcell principle somewhat haphazardly, normally in ways that benefitted Republicans and disadvantaged Democrats. Still, in Allen v. Milligan, the Supreme Court had supported a lower court ruling that districts gerrymandered to protect minority voters were lawful under the Voting Rights Act.

All of this was about to change, however, because of Louisiana v. Callais. Ironically, that case had initially benefited minority voters in Louisiana. In the second part of this series, I will describe how Callais has not only reversed Allen v. Milligan, but has shown that the Purcell principle is a hollow doctrine devoid of any real meaning.