The Supreme Court’s “Purcell” doctrine instructs federal courts that judicial changes to election laws are disfavored as we get close to an election.  But this is a doctrine about the equitable powers of federal courts.  It is not a principle of substantive, federal constitutional law.  That means it does not apply to state courts addressing election-law claims, and a great deal of election-law litigation takes place in state courts under state law.  The recent Pennsylvania Supreme Court decision, for which the PA GOP and others are now seeking a stay in the United States Supreme Court, is one prominent example.

As a follow-up to Nick’s rich post about the Purcell doctrine, I wanted to flag this issue and offer some thoughts about it.  State courts often operate under different jurisdictional and equitable doctrines than the federal courts.  Some state courts, for example, issue advisory opinions, which the federal courts cannot.  Judicial doctrine in a state might not recognize any state-law analogue to Purcell, which would mean a state court might require changes to election law past the point at which federal courts would have the power to do so.  Even if a state court does acknowledge something like the Purcell principle, it might apply that principle differently than the Supreme Court would. 

Yet the Supreme Court would not have the power to stay or overturn these state court decisions for coming too late in time and thus violating Purcell.  This creates something of an anomaly.  If a federal district court late in the day ordered a state voting-law changed, based on the federal Constitution, the Supreme Court (or a court of appeals) could stay that decision because it came too close to the election.  But if a state court ordered the exact same change on the exact same day, based on state law, Purcell would have no bearing on that decision.   

If it seems odd that federal courts cannot make these last-minute changes, but state courts are free to do so, that raises this question:  could Purcell be transformed into a substantive rule of constitutional law that would then bind the state as well as federal courts?  It is not hard to see what that argument would look like.  The Supreme Court could decide that last-minute changes to election rules violate the Court’s right-to-vote doctrine under the Fourteenth Amendment, because, for example, they risk creating significant voter confusion.  We can also envision arguments that these last-minute state-court changes violate due process, on the basis of principles already reflected to some extent in existing doctrine. 

But turning Purcell from a principle about federal-court equitable powers into a substantive rule of constitutional law would take a significant doctrinal development.  I’m not expressing a view as to whether that would be a positive development or not.  My aim here is to flag a potentially significant issue about Purcell and state courts that I do not think has yet been discussed.