Breaking: Supreme Court Reverses Eleventh Circuit in Georgia Voting Rights Suit Finding Georgia Secretary of State Conceded Purcell Principle Could Not Apply; Remands for Further Proceedings (No Noted Dissents) [Updated 11th Circuit Order on Remand]

August 19, 2022, 8:45 amSupreme Court, Voting Rights ActRick Hasen

Georgia’s failure to use districts for electing certain statewide officials was found to violate the Voting Rights Act, and the district court required the use of districts in an upcoming election. The Eleventh Circuit put that ruling on hold, apply the Purcell Principle to say that the ruling came too close to the next election to be implemented. Today, the Supreme Court, without noted dissent, said the Eleventh Circuit erred.

Here is the order:

The application to vacate stay presented to Justice Thomas and by him referred to the Court is granted. The August 12, 2022 order of the United States Court of Appeals for the Eleventh Circuit staying the district court’s injunction is vacated. Respondent’s emergency motion for a stay pending appeal relied on the traditional stay factors and a likelihood of success on the merits, see Nken v. Holder, 556 U. S. 418 (2009), yet the Eleventh Circuit failed to analyze the motion under that framework. Instead, it applied a version of the Purcell principle, see Purcell v. Gonzalez, 549 U. S. 1 (2006) (per curiam), that respondent could not fairly have advanced himself in light of his previous representations to the district court that the schedule on which the district court proceeded was sufficient to enable effectual relief as to the November elections should applicants win at trial. The Eleventh Circuit may reconsider whether a stay pending appeal is appropriate, subject to sound equitable discretion.

I read this as not a retreat from vigorous application of Purcell (a lower court used it today to deny relief in the Georgia no-water-to-voters-waiting-on-line case). Instead, it is about Georgia officials representing in court that there was enough time to make this change to district elections for Georgia commissioners in time.

But the conservative 11th Circuit gets another crack at this under the traditional stay factors (Nken), and they could side with Georgia officials on this second bite at the apple. Stay tuned.

Update: The 11th Circuit has already ordered supplemental briefing.