Federal Court Which Struck Down Texas Voter ID Law Allows Its Use in Sept. 9 Local Elections

…This order makes sense given the Purcell Principle. Still pending are requests in the district court and 5th Circuit to allow Texas to continue to enforce its voter id law pending appeal (which could well take a year or more). I expect the district court to reject that broader request, and I’m not sure what will happen in the Fifth Circuit or, potentially, at the Supreme Court….

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“State seeks to keep voter ID law in place for handful of elections”

…Express News: Less than a week after a judge tossed Texas’ voter identification law, the state is asking permission to keep the requirements in place for a handful of upcoming elections in which early voting had already been underway. Looks like there’s a strong case for that under the Purcell Principle….

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“The Supreme Court is in no hurry to protect voters from gerrymandering”

…orary relief for voters as the court considered each case — not because these voters would eventually lose, but because the justices refused to put voters’ interests first. And these rulings build upon the court’s troubling “Purcell principle,” the idea that courts should not make changes to voting rules close to the election, even if those changes are necessary to protect voting rights. Last December, North Carolina appealed to the Supreme…

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Student Election Law Symposium at Berkeley Law on April 7

…is only required if you hope to receive CLE credit. Here is a link to our Facebook event. 9:30 – 10:30 Breakfast and Panel: Political Law in Theory and in Practice 1: Margaret Prinzing (Partner, Remcho, Johansen, & Purcell) 2: Jonathan Mintzer (Associate, Sutton Law Firm) Moderator: Adam Lioz (Counsel, Demos) Warren Room 10:30 – 11:45 Panel: Voting Rights and Community Empowerment 1: Pedro Hernandez (Deputy Director, FairVote…

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Blogging Break and Happy Holidays!

…Enough?, 2016 Wisconsin Law Review Forward 100 (2016) Election Law’s Path in the Roberts Court’s First Decade: A Sharp Right Turn But with Speed Bumps and Surprising Twists, 68 Stanford Law Review 1597 (2016) Reining in the Purcell Principle, 43 Florida State University Law Review 427 (2016) ) Celebrity Justice: Supreme Court Edition, 19 Green Bag 2d 157 (Winter 2016) Recent Commentaries and Op-Eds Donald’s Trumped Up Nevada Lawsuit Is a…

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FSU Law of Democracy Symposium Now in Print

…al Thicket, by Franita Tolson A “Checklist Manifesto” for Election Day: How to Prevent Mistakes at the Polls, by Joshua A. Douglas The Coordination Fallacy, by Michael D. Gilbert & Brian Barnes Reining in the Purcell Principle, by Richard L. Hasen Race, Shelby County, and the Voter Information Verification Act in North Carolina, by Michael C. Herron & Daniel A. Smith The Nineteenth Amendment Enforcement Power (But First,…

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“Longtime Maricopa Recorder Helen Purcell Defeated For Re-Election”

…mpressed at how well Helen and her team managed such a sprawling operation. Her tenure may not have ended the way she wanted, but her contributions to the field are considerable nonetheless. Thanks for your service, Recorder Purcell. It will fascinating to see how Maricopa elections function under Recorder-elect Fontes – the attention on the office may have made it possible for him to win the job, but the hot (and intensely partisan) spotlight…

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“Supreme Court Attempts To Slow Flood Of Last-Minute Election Litigation”

…election laws are implemented for Tuesday’s election…. For election law lawyers, it is a message that the so-called “Purcell principle” — referring to an earlier Supreme Court election law case — remains in effect. The Purcell principle is, as law professor Rick Hasen explains it, “the idea that courts should not issue orders which change election rules in the period just before the election.” Such late changes in the way elections are…

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Breaking: Supreme Court Halts AZ “Ballot Harvesting,” With No Noted Dissents

…the judge’s nose-counting was off here. So Arizona’s only option here would be to address an emergency request to Justice Kennedy, putting him in a very unusual position. He likely agrees with the dissenters, if only on the Purcell principle and the Ninth Circuit’s super truncated procedure. So does he stay the injunction or does he refer to the whole Court, which could well divide 4-4, leaving the 6-5 en banc ruling standing. So Arizona went…

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Breaking: Federal Court Temporarily Lifts CO Ban on Most Ballot Selfies for Upcoming Election

…any other laws, rules, or regulations related to the administration of the election, including those rules in effect at polling places. In other words, selfies will be okay in this election so long as you don’t use it to break another law, like to coerce someone or sell your vote. Besides disagreeing on the merits, I think the court has the Purcell Principle wrong….

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Breaking and Big: En Banc 9th Circuit, on 7-4 Vote, Won’t Require AZ to Count Ballots Cast Out of Precinct; Next to #SCOTUS?

…appeal on the en banc case, and making it clear that when the en banc court considers this matter fully, what will not consider whether such ballots cast in this election should be counted. The court gave a quick cite to the Purcell principle in a short order. This is a big deal, because there will be a lot of these ballots if history is any guide, and if the presidential election or any other election comes down to whether or not to count these…

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Breaking: 9th Circuit, on 6-5 Vote, Allows AZ “Ballot Harvesting” for This Election, Leaving Possible #SCOTUS Action

You can find the opinions (including two dissents) at this link. Aside from the merits of this decision (which I discussed in this post), there is a whole lot going on in this opinion about proper application of the Purcell principle (as in, when courts should act at the last minute in voting cases to protect voting rights) as well as the proper application of en banc procedures in this case (the case proceeded from an en banc call to an…

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Breaking: 9th Circuit Grants En Banc in AZ Case Involving Counting Out-of-Precinct Ballots

…”). From my coverage yesterday: Same panel as in the other aspect of the Feldman case, same 2-1 split: this time, whether Arizona’s rule that ballots cast by a voter in the wrong precinct should not count (for those races that the voter was eligible to vote in) violates Section 2 of the Voting Rights Act. The district court denied the preliminary injunction. The 9th Circuit, in a Judge Ikuta opinion, affirmed, relying in part on…

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Breaking: Federal Court Rejects PA GOP Efforts to Send Poll Watchers to Different Counties to Look for Voter Fraud

…make the change. When the suit was filed, I indicated I thought it had little chance of success. And now a federal district court has issued this 28 page opinion rejecting the challenge. Part of the reason is timing (laches, Purcell principle): “There was no need for this judicial fire drill and Plaintiffs offer no reasonable explanation or justification for the harried process they created.” The court also rejected the argument that…

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Breaking: Divided 9th Circuit Agrees to Hear AZ Ballot Harvesting Case En Banc, But J. Reinhardt Predicts Plaintiffs Will Lose

…ned by the lack of third parties available to collect ballots. Now the Ninth Circuit has agreed to hear the case en banc, with a concurrence by Judge Reinhardt and a dissent by Judge O’Scannlain. (The dissent cites the Purcell principle against taking the case. so close to the election.) Because the 9th Circuit is so big, they generally don’t hear the cases with all the Ninth Circuit judges, just an 11-judge subset. We don’t…

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CA Ban on Ballot Selfies Stands This Election as Judge Denies TRO

…Ross Todd reports the judge so ruled it is because the ACLU waited too long to file suit (and it doesn’t matter that the law changes on Jan. 1). This is in line with the recent Sixth Circuit ruling: “Call it what you will—laches, the Purcell principle, or common sense—the idea is that courts will not disrupt imminent elections absent a powerful reason for doing so.”  …

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Divided 9th Circuit Rejects Dems’ Voting Challenge to AZ “Ballot Harvesting” Law, But En Banc May Be Coming

…ng ballot harvesters can deal with that risk of vote buying. (I am less convinced by the public confidence in the electoral process argument, which seems not to depend on the specific election laws of the state). (As for the Purcell/delay issue, it looks like the problem has been with the timing at the district court, not any dilatory action of the plaintiffs.) On the other hand, there is some evidence that the great distances in Arizona means…

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Breaking: Divided 6th Circuit Restores Michigan Ban on Ballot Selfies for this Election

…majority opinion (by Judge Sutton), a concurrence, and a dissent. Judge Sutton’s main point is that this comes too late in the election season for Michigan to make a change now: “Call it what you will—laches, the Purcell principle, or common sense—the idea is that courts will not disrupt imminent elections absent a powerful reason for doing so.” (More on the Purcell principle). But Judge Sutton also takes a nod at the merits,…

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Breaking: WI Voter ID Judge Won’t Scrap Law for Election, Will Order State to Give Better Information to Voters

…See the series of tweets from Patrick Marley. The judge apparently invoked the Purcell Principle against making changes too close to the election, but said plaintiffs could go back to 7th Circuit for emergency relief. Marley: “Judge says he will “patch up” system that handles getting voting credentials to people with the most difficulty getting IDs.” More to come….

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More on the Ruling on Election Day Registration in Illinois

…expressed in When is Uniformity of People, Not Counties, Appropriate in Election Administration? The Cases of Early and Sunday Voting”, 2015 University of Chicago Legal Forum 193 (2015). But perhaps the ACLU is right that the proper remedy is to expand EDR to all the counties in Illinois. Aside from the merits, the question is whether this ruling comes too late. The judge seems blissfully unaware of the Purcell Principle. This case is a…

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DC Circuit Finds Evidence of Threat of Non-Citizen Voting Very Minor in Kobach-EAC Case

…e of the state requiring this information to prevent non-citizen voting the court wrote: First, the states — and the public — “indisputably ha[ve] a compelling interest in preserving the integrity of [the] election process.” Purcell, 549 U.S. at 4 (internal quotation marks omitted). What is disputable is whether an injunction would actually do much, if any, harm to that interest. An injunction would undermine this interest if it permitted…

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Michigan Asks for Emergency #SCOTUS Relief in Straight-Ticket Voting Case

…ely to happen in the case. But from what I know at this point, getting a stay will be tough going for the state. UPDATE: Here [updated link] is the stay request. OK, this is really not well done.  The introduction promises a Purcell type argument, the best type of argument to try to find a fifth liberal Justice who could get interested in the case. But then the brief does not mention Purcell again, at all! And then the lead argument is that this…

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Why Did Paul Clement Craft His NC Voting Brief as If Scalia Was Still Alive? A Theory

…to undermine Crawford and reverse the effects of Shelby County. Surely Clement knows this, and a better pitch in the brief would have been to argue solely that 4th Circuit ruling came too close to the election, violating the Purcell principle. So what gives? Here’s my new working theory: Clement knew NC were going to lose because (1) there was no way to get one of the liberal Justices to defect and (2) because they state waited so long to…

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DOJ and Private Plaintiffs File #SCOTUS Responses in NC Emergency Voting Case

…to the Court. (NC might try to draft a reply by tomorrow).  I’d expect a decision early next week. Here’s what I said about the chances when NC filed its emergency motion: But there are two reasons to believe the Purcell argument is unlikely to gain a fifth vote here: first, the timing problem is North Carolina’s fault. The fourth circuit specifically addressed the timing issue in its denial of a stay, pointing out the assurances the…

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WI Files Reply Brief in One Wisconsin Now Early Voting 7th Circuit Stay Request

You can read it here.  A snippet on the Purcell issue: Equally remarkably, Plaintiffs assert that the risk of “voter confusion,” Purcell v. Gonzalez, 549 U.S. 1, 4–5 (2006), favors them. Resp. 19–20. The injunction revised laws have been on the books for years. Yet Plaintiffs suggest that, after the district court issued a 119-page opinion on a recent Friday evening and a few newspapers wrote about it, Wisconsin’s voters adjusted—virtually…

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Breaking: North Carolina Files Emergency #SCOTUS Stay Request in Voting Case

…seem to have bought into the idea that changes just before the election should not be made by the courts, when they can confuse voters and upset the plans of election administrators. But there are two reasons to believe the Purcell argument is unlikely to gain a fifth vote here: first, the timing problem is North Carolina’s fault. The fourth circuit specifically addressed the timing issue in its denial of a stay, pointing out the…

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Close of Business Friday, and No NC “Emergency” SCOTUS Petition in Voting Case: Why?

And now the Purcell Principle works against the state of North Carolina, which has been living with, and preparing to implement, the 4th Circuit North Carolina ruling for two full weeks. A stay imposed by the Supreme Court at this point threatens to confuse voters further, and to make election administrators’ life hell. The whole reason the 4th Circuit issued its opinion in July is because it had assurances from the state that this would…

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Breaking: WI Voter ID Plaintiffs File Emergency 7th Circuit En Banc Petition for ID Softening

…e issue will be timing. Another is whether the softening comports with what has happened earlier in the case and with Crawford. Whatever the full 7th Circuit might do, I expect that is likely the last word (unless there is a Purcell/timing question posed). The Supreme Court on the merits could well split 4-4 if and when the case gets there. From the petition: First, the panel order involves a question of exceptional importance because,“with this…

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Breaking: 7th Circuit Reverses (for Now at Least) Softening of WI Voter ID Rule: What’s Next?

…e issue will be timing. Another is whether the softening comports with what has happened earlier in the case and with Crawford. Whatever the full 7th Circuit might do, I expect that is likely the last word (unless there is a Purcell/timing question posed). The Supreme Court on the merits could well split 4-4 if and when the case gets there. Meanwhile, there is a second case pending in which a trial court ordered different softening measures for…

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Final Version of My “Reining in the Purcell Principle” Article Now Available

…appeared contradictory, for example by allowing strict voter identification requirements to be used on Election Day 2014 in Texas but not Wisconsin. But the apparent common thread was the Supreme Court’s application of “the Purcell principle:” the idea that courts should not issue orders which change election rules in the period just before the election. This idea has appeared in earlier Supreme Court cases, most prominently in Purcell v….

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4th Circuit Denies Stay, Sending NC to #SCOTUS for Possible Stay in Voting Case

…8217;s docket notation: COURT ORDER filed [999904865] denying Motion to recall mandate [155]; denying Motion to stay mandate [FRAP 41(d)]. [155] Copies to all parties. And from the opinion, the 4th Circuit tries to preempt a Purcell principle timing issue: Moreover, recalling or staying the mandate now would only undermine the integrity and efficiency of the upcoming election. “Court orders affecting elections, especially conflicting orders, can…

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The Calendar of Election Litigation: Why Early August is the New Late September

…, and by late September there is a flurry of litigation and related analysis that makes blogging almost a full time job. Well that’s happened now, by early August. Why?  (No, not climate change.)  It has to do with the Purcell Principle, at least the idea from the Supreme Court which has percolated down to lower courts that courts should not make last minute changes to election rules. The Court just about forced the 5th Circuit to decide…

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NC Wants 4th Circuit Stay in Voting Case, Pending #SCOTUS Decision to Hear Case

…the panel, as I fully expect, denies this motion. But there’s no mention that NC will seek such emergency relief with the Supreme Court if this is denied. If the state does so, it is pretty clear from the citations to Purcell, that the state will be arguing that it is too late to implement these changes in time for the election under the  Purcell principle. I rate the chances of emergency relief only fair, because there is enough time to…

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Breaking and Analysis: (Another) Federal Court Strikes Restrictive WI Voting Rules

…pressed concerns about overly strict voter id laws.  So it is uncertain how all this plays out. Another uncertainty is the timing. Can all of this get resolved before the election. If this drags on on appeal, we may run into Purcell Principle problems for the fall 2016 election. Some observations and details about the opinion: The trial court judge says that if he could rethink cases like Crawford (Supreme Court opinion upholding Indiana’s…

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Unique and Important “Case Study” Database of Emergency Election Litigation Created by Federal Judicial Center

…or some of the cases, it gives some information not available elsewhere, such as a judge’s reasoning not in any written opinion but contained only in a transcript. Here’s another example, from the write-up on the Purcell v. Gonzalez case (which is the origin of the controversial Purcell Principle on timing of emergency election litigation).  One of the issues in the case is that the district court denied a request for a preliminary…

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FELN Files Amicus Brief on Purcell Timing Issue in Kansas EAC Appeal

…You can read the brief at this link. The article sounds some of the themes I put forth in Reining in the Purcell Principle, Florida State University Law Review(forthcoming 2015) (draft available) (this article has been forthcoming for about as long as we’ve been waiting for a decision in the TX redistricting case)….

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Breaking and Analysis: Divided 5th Circuit Holds Texas Voter ID Law Violates Voting Rights Act

…ef Justice Roberts would be on board. If the court ties, the 5th circuit en banc decision stands.  (There’s also the possibility of an argument that the interim relief ordered for this election comes too late under the Purcell Principle, but given that the 5th Circuit acted just within the soft July 20th deadline the Supreme Court set, I think the plaintfiffs will be safe in this regard). FINALLY, these kinds of softening devices are not…

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Breaking: Federal District Court Softens WI Voter ID Law, Allowing Affidavit in Place of ID

…ns whether the 7th Circuit will agree with this remedy should the state of Wisconsin choose to appeal. Here, there are two issues. First is one of timing. Changes too close to the election appear to be frowned upon under the Purcell Principle. The judge was cognizant of that, not requiring the affidavit option for the August election but requiring for November. I think we are far enough out from November that this does not come too late. The…

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“Lawsuit Filed to Protect Voting Rights in Maricopa, Arizona Following Recent Presidential Preference Primary Election Fiasco”

…preference election (PPE) in Maricopa County from 403 in 2008, to 211 in 2012, to just 60 this year. The suit, brought in Arizona Superior Court names Arizona Secretary of State Michele Reagan, Maricopa County Recorder Helen Purcell and the Maricopa County Board of Supervisors as defendants. The county’s decision to reduce the number of polling places created significant wait times at polling places and effectively disenfranchised countless…

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Johnstone: Thoughts on Montana Campaign Finance Decision

The following is a guest post from Anthony Johnstone: The Purcell Principle is absent in the Lair v. Motl court’s repeatedly bad timing. Recall its last order invalidating Montana’s contribution limits came down just a month before the 2012 general election. Now, even though the general election is in November, the primary election (subject to its own per-election contribution limits) is in just three weeks! Yet a separate state law principle…

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Breaking: #SCOTUS Denies Emergency Relief in Texas Voter ID Case, But Signals Full Decision in Time for November Elections

…ourt by filing an appropriate application. An aggrieved party may also seek interim relief if any change in circumstances before that date supports further arguments respecting the stay order. This is full application of the Purcell Principle in action: giving the 5th Circuit a time frame so that the issue can be resolved when it is not the last minute before the election. I was very, very skeptical of the benefits of seeking this emergency…

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4th Circuit Panel Which Partially Reversed NC Voting Decision in 2014 Likely to Get Case Back on Appeal

…different decision in reviewing the record, and that the judge should have looked at the laws cumulatively and not piece by piece. 7. Second, and perhaps more importantly, Judge Motz in dissent said that the Supreme Court’s Purcell v. Gonzalez case means that the 4th Circuit should not be changing election rules so close to the election. (This is the key issue in the Wisconsin voter id appeal which could be heading to the Supreme Court at any…

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Breaking and Analysis: Federal District Court Upholds Restrictive NC Voting Law in 485-Page Opinion

…tates Supreme Court, where the Court could well deadlock 4-4 (leaving any 4th Circuit ruling in place). And all of these appeals will have to happen in short order for it to affect how the 2016 elections take place under the Purcell principle.  Here is my overall impression having read/skimmed the 485 pages: the judge does a very thorough job going through the evidence of the law’s burdens on voters and the state’s interest in…

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A Wild Guess on #SCOTUS Special Opinion Monday: Texas Voter ID

…the Court. It is quite possible that the emergency motion has divided the Court 4-4, or maybe it divided the Court 5-3 (Justice Breyer did not join Justice Ginsburg’s dissent last time around). The Court, as it did in Purcell v. Gonzalez, could treat the emergency motion for relief like a petition for cert, grant cert, and issue an opinion. Either a 4-4 split or a denial to Texas could prompt another Ginsburg dissent. The issue of voter…

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“Democratic Party and Clinton campaign to sue Arizona over voting rights”

…urcell doctrine from a Supreme Court case, which states that courts should not issue an opinion in an election case too close to Election Day if it will cause voter confusion. “While it is April before a major election, the fact is that courts know how to expedite cases such as this to ensure that the people of Arizona receive the relief necessary to ensure that all their votes count,” Elias said. On the Purcell Principle, see my Reining in the…

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Near Final Version of My “Reining in the Purcell Principle” Paper Now Available

…lication of “the Purcell principle:” the idea that courts should not issue orders which change election rules in the period just before the election. This idea has appeared in earlier Supreme Court cases, most prominently in Purcell v. Gonzalez, a 2006 short per curiam case in which the Court vacated a Ninth Circuit injunction which had temporarily blocked use of Arizona’s strict new voter identification law. In this symposium Article, I argue…

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