Purcell principle

Purcell principle, a legal doctrine holding that courts should avoid changing election rules shortly before an election, as such changes may confuse voters or burden election administrators. The Purcell principle takes its name from the 2006 U.S. Supreme Court case Purcell v. Gonzalez.

The Purcell principle is usually invoked when a litigant wants to stop a lower court’s decision on an election law from taking effect until a higher court can hear an appeal. In such a situation, the litigant requests that an appellate court grant a “stay” (in this case, a temporary delay) of the lower court’s decision. There are multiple factors that are considered by an appellate court when weighing whether to apply the Purcell principle. Among these are the likelihood that the appeal will succeed, the potential for irreparable harm to the party requesting the stay, the possible impact on other parties, and the broader, public interest.

The Purcell principle originated in a 2006 U.S. Supreme Court decision involving an Arizona election law. In 2004 that state’s voters approved Proposition 200, also known as the Arizona Taxpayer and Citizen Protection Act. The new law required voters to present proof of U.S. citizenship when registering to vote and to present identification when at the polls. The law’s constitutionality was challenged in May 2006, and on October 5 the Ninth Circuit Court of Appeals ruled that the state of Arizona could not enforce the law until after its constitutionality was decided. The Supreme Court overturned the Ninth Circuit’s order on October 20, thus reinstating Arizona’s requirement for proof of citizenship two and a half weeks prior to the election. This ruling laid the groundwork for what would become known as the Purcell principle.

The Supreme Court offered two reasons for its decision in its unsigned opinion (an opinion in which the justices do not reveal who wrote the decision or how each of them voted). First, the Ninth Circuit did not elucidate its own reasoning—its response ran to a mere four sentences—so the Supreme Court could find no indication that the Ninth Circuit had given proper consideration to the lower court’s opinion. Second, the Supreme Court warned that changing voting rules so close to an election could confuse voters and make it more difficult for election officials to do their jobs. These disruptions, the Court stated, could lead to exactly the kind of voter suppression that the plaintiffs themselves were worried about. That concern—the danger of confusion and disruption caused by last-minute changes to election procedures—is what became known as the Purcell principle.

Since it was introduced in Purcell v. Gonzalez, the Purcell principle has been asserted in an ever-increasing number of election law cases. The Supreme Court has referred to it repeatedly, especially when courts are asked to change voting rules close to an election. In the 2014 case Veasey v. Perry, for example, the Court quoted the Purcell opinion when finding that a new Texas voter ID law should remain in effect for that year’s midterm elections. In 2020, during the COVID-19 pandemic, the Court relied on the Purcell principle in Republican National Committee v. Democratic National Committee, ruling that Wisconsin could not extend its absentee ballot deadline five days before an election, despite the circumstances caused by the pandemic. More recently, in Allen v. Milligan (2022), Supreme Court Justice Brett Kavanaugh pointed to the Purcell principle in his concurrence with an unsigned Court decision that stopped a lower court from forcing the state of Alabama to redraw congressional districts.

One reason that the Purcell principle has been frequently cited in election law cases is its open-endedness. In its brief three-page opinion in Purcell v. Gonzalez, the Supreme Court did not define a clear standard for determining how close to an election is “too close” for courts to make changes to voting rules. Nor did it explain how concerns about voter confusion should be weighed against other considerations, such as voter access to the polls. This lack of guidance means that lower courts have interpreted the Purcell principle for themselves, leading to a raft of inconsistent decisions. Litigants displeased with court orders regarding election laws are therefore encouraged to test the doctrine’s applicability to their cases by appealing.