Rob Yablon: “Moore v. Harper and the Purcell Principle”

The following is a guest post from Rob Yablon:

Commentary on Moore v. Harper has not yet focused on how the Purcell principle might shape what comes next. Litigants will no doubt soon be arguing that state courts (and potentially other state actors) have “transgress[ed] the ordinary bounds of judicial review” in ways that encroach upon the Elections Clause authority of state legislatures. The destabilizing effect of Moore will depend in substantial part on how the Supreme Court ultimately chooses to distinguish the “ordinary” from the out-of-the-ordinary. But it will also depend on how the Purcell principle is applied (or not applied) to Moore claims. There are no guarantees, but if existing practice is a guide, Purcell should limit the extent to which federal courts countermand the pre-election rulings of state courts. 

Purcell, in short, discourages federal courts from enjoining state election rules shortly before an election. In recent years, the Supreme Court has applied Purcell expansively (if unevenly). Last year, for example, it invoked Purcell to stay the district court’s ruling in Milligan (the Alabama Voting Rights Act case). In 2020, the Court stayed multiple district court injunctions that would have required states to change their election practices ahead of the election. According to the Court, the Purcell principle serves to minimize pre-election confusion and disruption and embodies the idea that running elections is primarily a matter for states, not for federal courts. 

Some of the Court’s most extensive discussions of Purcell have come in opinions from Justice Kavanaugh concurring in stay orders. In Merrill, Kavanaugh described states as having an “extraordinarily strong interest in avoiding late, judicially imposed changes to [their] election laws and procedures.” Plaintiffs thus face a heavy burden when they seek equitable relief from a federal court close to an election. According to Kavanaugh, they must “establish[] at least the following: (i) the underlying merits are entirely clearcut in favor of the plaintiff; (ii) the plaintiff would suffer irreparable harm absent the injunction; (iii) the plaintiff has not unduly delayed bringing the complaint to court; and (iv) the changes in question are at least feasible before the election without significant cost, confusion, or hardship.” 

So what might Purcell mean for post-Moore litigation?

Suppose that a state supreme court enjoins a congressional redistricting plan or a voting regulation on state constitutional grounds in the run up to an election—say, a 2024 primary or the 2024 general election. The losing party in that suit might then turn to the U.S. Supreme Court and seek a stay of the state supreme court’s order, asserting that it transgressed the bounds of ordinary judicial review. (Individuals or groups who were not part of the state case could conceivably seek similar relief in a federal district court, but as Derek Muller has explained, they would face some important procedural hurdles.) 

Proponents of a federal stay might contend that it would restore the status quo as it existed before the state supreme court’s intervention and thus would advance Purcell’s goal of avoiding last-minute disruptions to election law.  

The Supreme Court, though, has generally described Purcell as a restraint on last-minute action by federal courts, not state courts. Purcell would thus counsel against a federal stay, since the federal stay, not the state court injunction, would cause the relevant disruption. To date, this is indeed how the Supreme Court has handled requests to stay state supreme court orders.  

Moore v. Harper itself offers a good illustration. Last year, North Carolina lawmakers asked the U.S. Supreme Court to put on hold the North Carolina Supreme Court’s decision invalidating the state’s congressional map as a partisan gerrymander. They suggested that, with an election close at hand, Purcell counseled in favor of a stay. On their telling, a stay would have preserved the status quo while they asked the U.S. Supreme Court to take up their Elections Clause challenge. The Supreme Court disagreed and voted 6-3 to deny the stay. In a concurring opinion, Justice Kavanaugh wrote: “[T]his Court has repeatedly ruled that federal courts ordinarily should not alter state election laws in the period close to an election. In light of the Purcell principle and the particular circumstances and timing of the impending primary elections in North Carolina, it is too late for the federal courts to order that the district lines be changed ….” Justice Kavanaugh echoed this point in his Milligan stay concurrence: “It is one thing for a State on its own to toy with its election laws close to a State’s elections. But it is quite another thing for a federal court to swoop in and re-do a State’s election laws in the period close to an election.” 

A second illustration is the Court’s rejection in October 2020 of an application to stay a Pennsylvania Supreme Court ruling on mail-in ballots (Pennsylvania Democratic Party v. Boockvar). Shortly after denying that stay, the Court decided to keep in place a stay on a federal district court order from Wisconsin that would have allowed more time for the receipt of absentee ballots. In the Wisconsin case (Democratic National Committee v. Wisconsin State Legislature), Chief Justice Roberts issued a short concurrence to explain why he believed a stay was warranted in Wisconsin but not in Pennsylvania: “While the Pennsylvania applications implicated the authority of state courts to apply their own constitutions to election regulations, [the Wisconsin] case involves federal intrusion on state lawmaking processes.” 

Of course, it’s possible that the Court could shift the Purcell goalposts. Commentators have criticized the Purcell principle as malleable and underspecified, and the Court’s invocations of it have not been entirely consistent. In his Merrill stay concurrence, Justice Kavanaugh noted that “the Court has not yet had occasion to fully spell out all of its contours.” The Court could conceivably decide that the principle is less about constraining federal courts and more about limiting any last-minute judicial alterations of election rules. 

But if the Court continues to apply Purcell when litigants ask federal courts to stay the pre-election orders of state supreme courts, it is difficult to see how a party could overcome Purcell’s anti-stay presumption, at least as the law now stands. On Justice Kavanaugh’s telling, stay applicants must show (among other things) that “the underlying merits are entirely clearcut in [their] favor.” In other words, they’d have to show that a state supreme court unmistakably violated the Elections Clause by transgressing the ordinary bounds of judicial review. But the majority in Moore pointedly declined to adopt any test for evaluating when a state court goes too far.  How can a state court clearly run afoul of a yet-to-be-articulated rule? 

Practically speaking, the upshot seems to be this: Moore may invite litigants to argue that a state supreme court has impermissibly meddled in federal elections, but Purcell will likely limit the ability of those litigants to get federal court relief as an election nears. The state court’s ruling, in other words, would remain operative for the election, and the Moore claim would not be taken up by the U.S. Supreme Court (or possibly another federal court) until after the election. 

This approach has pros and cons. On one hand, it may reduce the number of Moore claims that federal courts ultimately need to resolve. Claims brought before an election may not remain live challenges after the election, or parties may simply drop them. On the other hand, it may lead to at least some high stakes, politically charged post-election litigation. If the outcome of an election appears to hinge on a contested state court ruling, then the Supreme Court may find itself at the center of another Bush v. Gore-type storm. Justice Thomas warned about exactly this in his dissent, observing that “the majority opens a new field for Bush-style controversies over state election law—and a far more uncertain one.” 

If that comes to pass, the Court may regret not providing more clarity in Moore about the constraints that the Elections Clause apparently places on state courts—or regret opening the door to such claims at all. In his Merrill stay concurrence last year, Justice Kavanaugh wrote that, “[w]hen an election is close at hand, the rules of the road must be clear and settled.” He called this a “bedrock tenet of election law.” It is hard to square the Court’s standardless ruling in Moore with that “bedrock tenet.” 

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