The sharply divided CA 4 en banc decision also illustrates what a mess trying to apply the Purcell “doctrine” can be. Purcell cautions federal courts against changing the status quo in election cases too close to the election. It’s probably best understood not as a “doctrine,” but an equitable consideration courts ought to take into account, along with other factors, in deciding whether to issue an injunction in election cases arising close to an election.

Part of the complexity comes in determining what constitutes the status quo baseline. In NC, the Board of Elections, through a judicial consent decree, changed the receipt deadline for absentee ballots from three days after the election — the policy in the state’s enacted election code — to nine days after the election. That decree was issued a couple weeks ago, on October 2nd.

To make matters far more simple than they are in the actual case, if a plaintiff came to federal court to challenge the order extending this deadline, should the federal court decline to decide the federal question, because it is too late for the court to change the status quo? To sharpen the point, if the federal court believes the late change to the election code is a major one and, on the merits, unconstitutional, should the federal court nonetheless not disturb the “status quo?”

That raises the question of whether the status quo should be understood to be the policies established in the state’s election code — the position of the dissenters in the CA 4 decision — or the new, Oct. 2nd policy reflected in the consent decree the Board entered into — the position of the majority.

Another, more general way to put this: if state executive officials or state courts make major, late-in-the-day changes to election law, can federal courts decide whether those changes are constitutional? Or does Purcell mean the federal courts have to stand down.

Purcell is easiest to apply when plaintiffs bring a last-minute challenge to a state policy that’s been in place for a long time. When policies are constantly changing late in the day, through the actions of state courts or state executive officials, it becomes much harder to figure out exactly how Purcell should be applied.

And I have greatly simplified the actual facts in the NC case. The situation involves a number of actions of the state courts, as well as the federal district court, with state and federal courts in the last couple weeks issuing temporary restraining order, temporary stays, and taking other actions too convoluted to be worth summarizing here. I simply want to flag the Purcell issue that also split the CA 4.