Two decades ago, the Supreme Court had the wisdom to foresee the trouble that would ensue if courts made decisions about voting and elections when an election was looming. In the run-up to the 2006 midterms, the Court “reinstated a previously blocked citizenship law in Arizona”—Proposition 200—“just two and a half weeks before Election Day.”
In a per curiam decision, the Court articulated the so-called Purcell Principle. “Court orders affecting elections,” it said, “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.”
And, as a result, courts should stay their hand. However, the Supreme Court did not define the precise period within which they should do so.
But the principle was clear enough in telling courts not to rock the boat if doing so might undermine democracy’s greatest moment, the moment voters go to the polls.
In a line that seems to have been forgotten by the Justices who sided with Trump yesterday, the Purcell Court explained, “‘A State indisputably has a compelling interest in preserving the integrity of its election process.’ …Confidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy.”
Moreover, Harry Dodsworth argues that despite being “sorely misunderstood…the Purcell Principle has morphed into one of the Supreme Court’s most powerful election-law doctrines. By and large, the Court has interpreted the principle as a bright-line rule barring any judicial intervention close to elections…”
While Dodsworth suggests that, instead of promoting participation in elections, the Court “has overwhelmingly used the principle to uphold voting restrictions,” he credits it with targeting the problem of “voter confusion.”
On Monday, in Trump v. California, the Court turned its back on the Purcell Principle and with little more than two months to go before the November election set the stage for electoral chaos and confusion. It said nothing about a second injunction, issued on August 11, even as it stayed the June 25 injunction issued by the same Massachusetts federal judge, Indira Talwani, preventing the president from ordering the United States Postal Service not to deliver mail-in ballots to people whose names the federal government has not approved. The stayed June 25 injunction covered only the 23 plaintiff states and D.C. Judge Talwani’s August 11 order, which blocks USPS nationwide, remains in place for now—but the Court’s silence on it signals that it too is vulnerable, and states cannot plan an election around an injunction the Court has declined to defend.
The Court’s decision not only disregards its own precedent, but it is another moment when the Justices seem to want to get out of the way of Trump’s attack on democracy. Pro-democracy forces need to redouble efforts to make sure that no eligible voters are intimidated or discouraged from voting by the Trump Administration.
Voter intimidation seems to have been the object of the president’s March Executive Order entitled “ENSURING CITIZENSHIP VERIFICATION AND INTEGRITY IN FEDERAL ELECTIONS.” It directed the Secretary of Homeland Security to compile “State Citizenship List[s]” cataloging each state’s citizens of voting age and send them to the states, and directed the Attorney General to prioritize prosecuting state and local officials who issue ballots to ineligible voters.
The people who wrote our Constitution would be appalled. They specifically assigned authority over the manner of holding elections to the states.
In addition, §3(b) of the executive order directed the Postal Service to “initiate a proposed rulemaking” to “protect the integrity of the mail as a medium for transmitting Federal election ballots and establish uniform standards for mail-in or absentee ballot services…” States went to court to block the plan and won.
In Monday’s truly bizarre ruling, the Court, as Democracy Docket notes, “found that the Democratic-led states that sued to block the order had not yet been harmed because it hadn’t been implemented yet” and that “the lower court issued the injunction prematurely.”
The Court called the executive order “an internal directive from the President to a subordinate. It imposes no obligations on the States, so they ‘suffer no concrete harm from’ it…. And without concrete harm, there is no standing.”
It went out of its way to suggest that “disposition of this application does not mean that any measure taken by the Government to implement the Order will necessarily be lawful. On that score, time will tell.”
Time. What time? When?
The whole point of Purcell was not to leave the people in charge of elections or the voters hanging.
But the story is not over.
The USPS has already issued a final rule implementing the president’s order, released last Friday with an effective date of August 21 and formal publication in the Federal Register set for Wednesday—which means that when the Court wrote that the injunction stopped the Postal Service from “so much as initiating a rulemaking,” the rulemaking was in fact already complete. At that point, in the Court’s twisted view, the states can return to court to show they are harmed.
While in the Court’s thinking, it is uncertain what harm the states would suffer if the Executive Order took effect, it did not hesitate in finding that stopping the Executive Order from being implemented would do substantial damage to the president and the federal government. “The Government is likely to suffer irreparable harm without a stay. The District Court’s breach of Article III interferes with the internal operations of the Executive Branch.”
“The injunction,” the Court continues, “bars Homeland Security from trying to compile Citizenship Lists for about half the States in the Union. It purports to forbid the Attorney General to implement the President’s enforcement priorities… And it prevents the Postal Service from so much as initiating a rulemaking that could yield a rule applicable to these States.”
“Because reversal of the District Court’s judgment,” it added, “would come too late for the 2026 midterms, the District Court’s errors deal ‘a serious setback’ to the Executive’s ‘goals’ while this litigation unfolds.”
How odd.
It could equally well have been written, à la Purcell, that the Supreme Court’s action in imposing a stay on the injunction deals “a serious setback” to the goals of the states to conduct the November election in accord with the Constitution.
As is her wont—and her gift—Justice Ketanji Brown Jackson cut to the chase.
On the issue of the Court’s weighing of harm, she wrote, “The President is only conceivably harmed by an injunction barring executive action if that court order is preventing him from doing something the law permits him to do. But here the Government has not even bothered to assert, much less demonstrate, that the President has the constitutional authority to issue an order that directs the manner in which the mail-in ballot aspect of federal elections is to be administered.”
Then, Jackson pulled no punches in pointing out that the Court’s decision “needlessly injects chaos and uncertainty into the upcoming midterm elections. It also lets another shoe drop in the Kafkaesque nightmare that our precedents have been steadily creating for certain plaintiffs who seek to bring election-related challenges.”
She highlighted how ironic it is that while “[t]he Court has held for a while now that even valid election-related legal claims can come too late…. Today’s revelation is that such claims can also come too early—never mind that an election is looming and related harms are presently occurring. Never mind, too, that the Government (which controls the timing of proposed and final rules) can easily game the system.”
In the end, Jackson gets it right when she concludes that “States administering elections and the voting public that relies on them to do so deserve clarity, not caginess or confusion. The Court does a disservice to all concerned by distorting Article III standing and ripeness principles to issue a ruling that contributes to pre-election chaos instead of quashing it, and by using its equitable authority to facilitate a patently inequitable result.”
Inequitable rulings and results have become the Roberts Court’s stock in trade. That is bad enough, but yesterday the Court again tilted the playing field against the constitutional design and democracy itself.