While I appreciate Rick H.’s critique of the Court’s decision in RNC v. Mi Familia Vota, I find myself in disagreement. He notes, “This is a change from the past when they could vote at least in federal races. It’s going to create administrative confusion and voter disenfranchisement in the period before the election. . . . The instructions on the state form are incorrect, there’s not going to be enough time to get the word out to voters, and procedures have to change with the election just weeks away.” I don’t think the concern is election administration writ large, but a kind of judicial intervention.

I think the opening description of Purcell, one that “discourages court orders in the period before the election on grounds that it can cause election administrator difficulties and voter confusion,” isn’t necessarily the right framing. I think Purcell is about court orders that change the legal status quo, not simply any change. Consider three of the major Court decisions here:

Purcell: The Arizona legislature enacted a statute on voter identification; the Court discourages a court from issuing an order changing the status of that statute too close to an election.

RNC v. DNC (2020): The Wisconsin legislature enacted a statute on the date of holding an election; the Court discourages a court from issuing an order changing the status of that statute too close to an election.

Merrill v. Milligan (2022): The Alabama legislature enacted a statute setting boundaries in legislative election; the Court discourages a court from issuing an order changing the status of that statute too close to an election.

RNC v. Mi Familia Vota fits this pattern exactly. The Arizona legislature enacted a statute in 2022 about proof of citizenship; the Court discourages a court from issuing an order changing the status of that statute too close to an election.

So in this posture, here’s the typical issue: there is a law on the books (new or longstanding) that a plaintiff tries to enjoin from operation. The plaintiff is likely to succeed on the merits, but the defendant argues the timing precludes the injunction. (There are other cases, too, that are not statutes–an administrative rule, for instance, or perhaps a previously-existing longstanding injunction.)

Four things to consider here about why (I think) the Court’s majority is right.

1. Arizona had voluntarily not enforced the statute. As Judge Bumatay put it in his dissent in the Ninth Circuit, the “argument backs into self-contradiction. If the status quo was the voluntary non-enforcement of § 16-121.01(C) without any court order, then the partial stay of the injunction doesn’t cause them any injury. It presumably would just return to the status quo before the district court’s injunction.” That is, Arizona’s unilateral non-enforcement is what created a disruption to one form of the “status quo.” But as a legal matter, subsection (c) remains on the books. It is very hard to think that an election administrator could here manage to create the “confusion” through non-enforcement. Or, that the election administrator’s failure to prepare to implement the statute for more than two years somehow enables the legislature’s preferences to be thwarted. Again, there might be equitable considerations at stake here–but they aren’t Purcell.

2. The district court conceded that the defendant was likely to succeed on the merits. Again, we are far afield from Purcell, where the district court is inclined to side with the plaintiffs, but found some reasons to refuse to enjoin. Here, the district court was inclined to side with the defendants, but still enjoined the law. From the district court:

The Court finds that Intervenor Defendants have raised at least a serious legal question as to whether the LULAC Consent Decree permanently precludes the implementation of contradictory legislation like H.B. 2492.

In fact, the Ninth Circuit skipped past its own en banc precedent on this point when it comes to granting injunctive relief (with the caveat that there may still be some daylight between the factors for injunctions and the factors for granting a stay). From Garcia v. Google (9th Cir. 2015): “when a plaintiff has failed to show the likelihood of success on the merits, we need not consider the remaining three [factors].”

Again, with Purcell, this makes sense. The legal status quo is the statute on the books that the Arizona legislature enacted two and a half years ago. It is odd to turn Purcell into something else–a kind of roving mandate for federal courts to enjoin laws on the books that they believe would otherwise cause voter or administrative confusion. Again, those might be other equitable considerations, but they are not Purcell.

3. The district court failed to consider the effect on the general election. That should be a categorical error. Again, because Purcell is put in this strange reversal position, a statute that could go into effect for an election months into the future shouldn’t be a problem to allow to take effect. But the district court’s decision on June 28 spoke exclusively in terms of the primary election. The Ninth Circuit on August 1 added generically that it was “well into the registration timeline for the November general election.” There may well be concerns about the general election. Did they exist on June 28? There’s no record suggesting that’s the case. It could be, and it’s something that should be examined, but here we have no record of looking at that.

Purcell, recall, would work the other way: it would allow the enjoinment of the statue for the general election precisely because the general election is so far away and wouldn’t disrupt the status quo. Here, however, the argument is that the election is too close, therefore we need to enjoin the statute.

4. The universe of voters affected by subsection (c) is prospective only. This is a major distinction from most other election cases. Unlike the three I mentioned (voter identification, date of election, they affect all voters at all times. The band of individuals affected is dramatically smaller to the extent the voter registration form is being accepted on a new, ongoing basis.

* * *

There are reasons for the four dissenting justices to rule the way they did on subsection (c). It’s quite possible to say, let’s just leave whatever happened at the district court level alone for now for equitable considerations. And that’s an entirely fair assessment for the justices to make. And one can, additionally, ask for more fulsome (or, any) reasons from the Court (with the recognition, of course, that “emergency” relief may not have the opportunity for the kind of explanation of reasons as other orders). (And I think the Supreme Court can always correct lower court errors consistent with Purcell, even if their decisions are necessarily later in time.)

But if the Court is serious about Purcell, however, the majority has it right. The problem is a district court’s decision to enjoin operation of a statute close in time to an election. If we are close to an election, the court should not enjoin the operation of a statute under Purcell. There may be other equitable considerations at stake, and there may be concerns about election administration, but those are distinct issues.