The Purcell principle: The murky legal concept that could swing the election

By | October 6, 2020

Politico reports:

Amy Coney Barrett hasn’t even arrived yet, but the Supreme Court has begun delivering its first big signals of how aggressive a role the court plans to play in setting the rules for next month’s election.

The court stepped in Monday night to reinstate a South Carolina ballot witness requirement, even as a Pennsylvania dispute over late-arriving absentee ballots is now teed up for imminent emergency action by the justices. And another simmering fight over voting rules in Wisconsin could be headed to the high court soon.

The cases could present an exquisite dilemma for Chief Justice John Roberts, who is famously leery of politics and widely seen as the key swing vote on a court now down one liberal member after Ruth Bader Ginsburg’s death.

They also pose a test for a legal premise the court has increasingly cited in recent years as a justification for wading into some preelection showdowns while standing aside in others.

The Purcell principle, named for a dispute over an Arizona voter identification law taken to the court on an emergency basis in 2006, dictates that federal judges should generally refrain from causing confusion by changing voting rules in the lead-up to an election.

While the notion sounds simple enough, its application in practice can often be baffling. And just how to apply the idea of keeping election procedures stable in the midst of an extraordinary national health emergency like the coronavirus pandemic is far from clear.

“It’s being brought up in just about every case right now as we are getting closer to the election,” said Rick Hasen, a University of California at Irvine law professor who coined the term “Purcell principle” in a 2016 law review article. “But it’s not a hard-and-fast-rule, and it’s not well developed.”

The current, short-handed court appeared to hew to the Purcell principle in its Monday order restoring the South Carolina requirement that absentee voters find a witness to sign their ballot materials, although precisely why the court acted remained somewhat murky because only one member — Justice Brett Kavanaugh — explained his rationale.

However, several factors suggested that Roberts and Kavanaugh are voting together in a moderately conservative bloc that is committed to the basic Purcell notion while trying to avoid some of the whiplash from lower-court orders being abruptly reversed by the Supreme Court.

Kavanaugh’s brief explanation, the court’s decision to allow completed ballots received by Wednesday to be counted without a witness signature, and a statement from the court that Justices Clarence Thomas, Samuel Alito and Neil Gorsuch would have voided noncompliant ballots already cast suggested that Kavanaugh and Roberts are viewing Purcell somewhat more flexibly than their other Republican-appointed colleagues.

However, the scope of the concession for cast ballots seems modest, since mailed ballots were only supposed to go out starting this past weekend. In-person absentee voting began in the state on Monday. More than 150,000 absentee ballots have already been requested, with almost 20,000 cast on the first day, The Associated Press reported.

The Supreme Court’s action on Monday effectively nullified an en banc decision of the Richmond, Va.-based 4th Circuit issued Sept. 25 allowing South Carolina absentee voters to cast their ballots without finding a witness to sign the envelope. Opponents of the requirement say it could expose voters and witnesses to unnecessary risk of contracting coronavirus, while supporters say the rule helps protect against fraud.

Kavanaugh’s solo statement in the South Carolina case explicitly cited Purcell, declaring: “This Court has repeatedly emphasized that federal courts ordinarily should not alter state election rules in the period close to an election.” [Continue reading…]

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