57. Another Bad Day for the Purcell "Principle"

A new decision by the full Fifth Circuit helps to illustrate some of the many problems with how the Supreme Court says lower courts are supposed to handle emergency applications in election cases

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Every Monday morning, I’ll be offering an update on goings-on at the Court; a longer introduction to the Court’s history, current work, or key players; and some Court-related trivia. If you’re enjoying the newsletter, I hope that you’ll consider sharing it with your networks (and subscribing if you don’t already). And I hope you’ll consider upgrading to a paid subscription if your circumstances permit (and if you haven’t already!):

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On the Docket

Last week saw just a single order from the Court—a grant of certiorari on Friday in a technical case about whether a particular time-limit is jurisdictional (and, thus, can’t be waived) or not.

This week looks to be quite a bit busier. A regular Order List is expected today at 9:30 ET. And if past practice is any guide, even though the justices are not scheduled to hold another Conference until January 5, we’re likely to get a second batch of cert. grants from last Friday’s Conference later this week (so that the cases granted now can be argued in April without having to expedite the briefing). That second set of grants could include some major disputes, including, among others, the federal government’s and Danco Laboratories’ appeals in the mifepristone case.

In addition to those orders, the Court now has quite a backlog of emergency applications ripe for disposition. We’re now going on six weeks since briefing was complete in the four challenges to the Biden administration’s “Good Neighbor” pollution rules (suggesting that a full opinion of the Court may well be in the offing). We’re also more than in the sweet spot for rulings on the two emergency applications arising out of the conflict between Idaho’s abortion ban and EMTALA. There’s the renewed Second Amendment challenge by the National Association for Gun Rights to assault weapons bans in Illinois. And, as noted in far more detail below, there are two new pending emergency applications in the Galveston Voting Rights Act dispute that also have a ticking clock. I’m a bit surprised that we haven’t already received rulings in some of these disputes; I’ll be very surprised if that’s still true come next weekend.

Finally, the Court has also announced the plans for the memorial and funeral of Justice Sandra Day O’Connor—with the commemoration at the Court taking place next Monday, followed by a private funeral service at the National Cathedral on Tuesday.

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The One First “Long Read”: Galveston, the Fifth Circuit, and Purcell

I’ve been waiting for the opportunity to write about the so-called “Purcell principle,” one of the more profound (and profoundly dangerous) misadventures in the Supreme Court’s contemporary approach to emergency applications. A new decision from the full Fifth Circuit unfortunately provides a perfect illustration of much of what is so fundamentally wrong with it—and why it could wreak so much havoc in the upcoming election cycle.

I. Purcell

Purcell v. Gonzalez was itself a cryptic, unsigned majority opinion resolving an emergency application in a 2006 dispute about a series of Arizona voter ID requirements. In a nutshell, Arizona had asked the Supreme Court to stay an injunction pending appeal that had been issued by the Ninth Circuit. Had the Ninth Circuit’s injunction been left alone, it would have prevented those requirements from being enforced in the 2006 elections.¹

Rather than grant a stay, the Supreme Court treated Arizona’s application as a petition for certiorari, granted it, and summarily reversed the Ninth Circuit—without full briefing or oral argument. The unsigned and cryptic majority opinion articulated a new and highly subjective approach to emergency applications in election cases. At its simplest, the “principle” is that, to avoid confusion among voters and election administrators, federal courts should generally not change the rules governing elections as Election Day approaches—meaning that injunctions against even unlawful election rules are increasingly disfavored as Election Day draws near.

Purcell is not an argument against the power of lower courts to provide remedies for unlawful election laws; rather, it’s an argument against allowing injunctions of election laws to go into effect too close to elections. And although it’s directed toward district courts, Purcell is as much a principle for appellate courts to apply (or have applied to them)—to justify stays of district court injunctions issued too closely to an election, or, as the Supreme Court did with the Ninth Circuit in Purcell, to wipe away emergency relief issued by courts of appeals.

At first blush, that principle seems reasonable enough: court orders— especially competing court orders—changing the rules in the run-up to Election Day can easily cause chaos, risking not just the potential disenfranchisement of confused voters, but potential headaches for election officials tasked with administering an election and tallying results under shifting legal foundations. Indeed, perhaps the best defense of Purcell is that it was an attempt by the Supreme Court to introduce rigidity into an area in which the justices believed there was too much discretion—to tightly circumscribe the power of courts as Election Day approaches.

But in the seventeen years since Purcell was handed down, numerous problems have emerged with the principle it espoused. First, on its own terms, Purcell never explained when it’s “too close” to an election for courts to intervene. In Purcell itself, the Ninth Circuit injunction came 33 days before the Arizona election—far enough out to seemingly abate any confusion or concern (the Supreme Court’s decision, in contrast, came just 18 days before the election). But if thirty-three days is too close, what about 43? Or 63? Indeed, in the Alabama redistricting case in 2022, Justice Kavanaugh’s concurrence invoked Purcell to block a district court injunction handed down over nine months before the election—and twelve weeks before the primary (which, unlike the general election, could have been moved if necessary). Right off the bat, then, Purcell’s seeming nod toward a bright-line rule turns on the grayest of temporal considerations—inviting the very subjective decision-making from judges that the decision claimed it was trying to eliminate.

Second, although Purcell justified an election-specific rule for limiting the effects of injunctions by alluding to “considerations specific to election cases,” it never explained why such a rule was needed. Why wouldn’t the traditional standards for injunctions, and for stays of injunctions pending appeal, suffice? When a district court enters a preliminary injunction, whether that injunction should be stayed pending appeal depends upon a number of factors, including the harm that the parties might suffer from a ruling in either direction and how the public interest is impacted either way. Those traditional factors are supposed to be “balanced,” an invitation to courts to assess which harm is worse: the harm to plaintiffs, for example, of having to comply with potentially unlawful voting rules, or the harm to everyone else of blocking those rules on the eve of the election. Thus, even before Purcell, the argument for staying an eleventh-hour injunction that would have wreaked havoc on a state’s election procedures would have been powerful, even if the plaintiffs’ challenge to those procedures was strong. Likewise, a pre-Purcell analysis would have focused on the actual likelihood that a specific law or court order blocking it would cause voter confusion, rather than the more general presumption the Supreme Court articulated in Purcell—that all late changes to election rules will confuse voters, without regard to their legal parameters or justifications.

But the flip side of this coin is even more troubling: by departing from the traditional equitable standard, Purcell removes from the equation the possibility that, as disruptive as judicial intervention might be, freezing (or not issuing) late-breaking relief would be worse. For example, say a new state election rule would unlawfully prevent 20 percent of registered voters from actually voting, whereas barring the new rule from taking effect would entail the risk that some minority of the remaining voters might be confused on Election Day. The chance of some voters being confused hardly justifies allowing widespread disenfranchisement. Under Purcell, though, that analysis becomes irrelevant, even if the plaintiffs’ challenge to the new election rule is very likely to succeed.

Finally, and exacerbating all of these concerns, Purcell was itself a shadow docket decision—decided on a compressed schedule, with no argument, and with no advance indication to the parties or anyone else that the Court was going to treat Arizona’s emergency application as an opportunity to fundamentally rewrite judicial procedure in election cases. Its thinly reasoned analysis spans just over two pages. One would think, if the justices wanted to dramatically change the nature of judicial review in election cases, that they would have done so a bit more publicly, and in a more comprehensive opinion. Or, failing that, one might at least think that the justices would have since clarified what they meant (spoiler alert: they haven’t).

Many of these flaws were apparent from the get-go. But the en banc Fifth Circuit’s decision on Thursday in a case arising out of Galveston, Texas helps to drive home just how problematic Purcell has become—and just how dangerous its malleable, subjective standard could be heading into the 2024 election cycle.

II. The Galveston Litigation

As the original three-judge panel of the Fifth Circuit (Jones, Barksdale, & Elrod, JJ.) summarized,

The Galveston County Commissioners Court is composed of four county commissioners, elected from single-member precincts, and one county judge, elected by the entire county. From 1991 to 2021, one of the four commissioner precincts had a majority-minority population, with blacks and Hispanics together accounting for 58 percent of the precinct’s total population as of 2020. In 2021, the Galveston County Commissioners Court enacted a new districting plan for county commissioner elections. The enacted plan does not contain a majority-minority precinct. Following a bench trial, the district court found that the enacted plan dilutes the voting power of the county’s black and Hispanic voters in violation of Section 2 of the Voting Rights Act. Galveston County appealed.

The real fight in the Galveston case (currently captioned Petteway v. Galveston County) is over what are known as “minority-coalition” claims under section 2 of the Voting Rights Act of 1965. All agree that neither minority population, on its own, is large enough to trigger vote-dilution protection under section 2. But, like some other circuits (albeit not all of them), the Fifth Circuit has recognized since 1988 that section 2 applies not just to individual minority groups, but to minority coalitions like the one in Galveston.² Thus, under the law of the circuit, this is an easy case—as the district court (presided over by Judge Jeff Brown, a Trump appointee) concluded in extensive findings of fact and conclusions of law issued on October 13, after a 10-day bench trial.

The original Galveston County Commissioners Court map adopted in 2021; blocked by Judge Brown in October; and put back into effect by stays from the Fifth Circuit

Enter, the Fifth Circuit. After issuing a temporary stay of the district court’s order requiring a new map, a three-judge panel affirmed the district court on November 10, but only because it was bound to follow the law of the circuit. The panel also called for the full court to rehear the matter en banc—so that the court of appeals could overturn its prior precedent. In other words, the panel agreed that the district court’s ruling was correct under existing precedent; it just wanted the full court to change the precedent. And in light of that invitation, the panel extended its “temporary” stay indefinitely “pending en banc poll.”

Then, last Thursday, the en banc Fifth Circuit weighed in. The full court, by an 11-6 vote, granted Galveston County’s stay for the duration of the appeal. And in an opinion for nine of the 11 judges in the majority, Judge Oldham invoked … Purcell:

Citing Purcell, the Supreme Court refused to bless judicial intervention in State elections 21 days before the general election date, see Veasey v. Perry, 574 U.S. 951 (2014) (mem.), 34 days before the general election date, see Merrill v. People First of Alabama, 141 S. Ct. 25 (2020) (mem.), 46 days before the general election date, see Andino v. Middleton, 141 S. Ct. 9 (2020) (mem.), 48 days before the primary election date, see Raysor v. DeSantis, 140 S. Ct. 2600 (2020) (mem.), 92 days before the primary election date, Moore v. Harper, 142 S. Ct. 1089 (2022) (mem.), and 120 days before the primary election date. See Merrill v. Milligan, 142 S. Ct. 879, 879 (2022) (mem.).

….

Absent a stay, Galveston County’s voters would be forced to vote under the new Judicial Map even before we could determine whether VRA § 2 or the Fourteenth Amendment allowed that result. On November 30, 2023, the district court entered an order implementing the Judicial Map. That was less than two weeks before Texas’s [candidate] filing deadline on December 11, 2023.

There are four serious problems with this discussion, all of which reinforce why the Supreme Court’s Purcell jurisprudence is so dangerously … malleable. First, none of the six decisions Judge Oldham cites in the first paragraph as examples of the Supreme Court “citing Purcell” in fact cited Purcell (the absence of pincites is a tell, but here are the receipts). All six of those emergency applications were resolved through orders that had no analysis on behalf of the majority. Perhaps Oldham meant to cite to some of Judge Kavanaugh’s concurring opinions therein, but (1) that’s just not the same thing; and (2) the inclusion of Raysor, in which the Court refused to vacate late intervention by the Eleventh Circuit (a clear parallel to the repudiated intervention by the Ninth Circuit in Purcell) makes no sense whatsoever. Of course, had the Supreme Court actually explained itself in any of those six cases, we’d know more about why the justices chose to intervene (or not). But the ease with which nine Fifth Circuit judges could paint those unexplained rulings with a single (incorrect) brush really underscores the costs of the Supreme Court not providing more reasoning in any/all of those rulings. (For more detail on the background to those Supreme Court rulings, see this Election Law Blog post of mine.)

Second, note the quiet but crucial leap that Judge Oldham makes between the first quoted paragraph and the second. Purcell is about confusion in the run up to Election Day. Even the most aggressive reading of the Supreme Court’s unexplained orders is about the run up to primary election day. But Oldham extends Purcell to the candidate filing deadline without bothering to note that that’s … not the same thing. That candidates might have to scramble in light of a new map is unfortunate, but it’s just not the evil (the risk of voter confusion) that Purcell, even read most generously, aims to prevent.

Third, even when considering the risk of voter confusion in the primary election itself, Judge Oldham, in another passage, seems to view the relevant issue at least in part as the proximity of the Fifth Circuit’s ultimate decision to that date (“even if we were to hear the case in January and release a decision on the lawfulness of the maps on the same day we heard argument, it would be only 42 days before the Texas primary election on March 5, 2024.”). But Purcell asks the reviewing court whether the court being reviewed acted too closely to the deadline. Here, the district court ordered a new map on November 30. That’s 97 days before the Texas primary election. Maybe 97 days is too close to an election (that was, after all, what Justices Kavanaugh and Alito thought in the Alabama redistricting case). But the Fifth Circuit’s sleight of hand, focusing on the wrong deadline and then the proximity of its (and not the district court’s) decision to the right deadline, makes the already subjective timing of Purcell a one-way ratchet (since the reviewing court can take as long as it wants to render a decision).

Finally, there’s Judge Oldham’s normative defense of such an application of Purcell. In his words, “our choice is either to enter a stay now or allow Galveston County voters to use the (potentially unlawful) Judicial Map until after the November 2024 general election. We properly chose now.” Even assuming that the en banc Fifth Circuit or Supreme Court eventually rejects minority-coalition claims under section 2 (which is by no means a given), recall from above that the whole point of Purcell is that it’s supposed to be indifferent to the merits. That’s how, for instance, the Supreme Court could allow Alabama during the 2022 election cycle to use a map that a lower court had blocked—a ruling that the Supreme Court would later affirm! In other words, the Supreme Court just allowed Alabama voters to use an unlawful congressional district map because Purcell supposedly required it. The possibility that an election might be held under rules that are subsequently struck down is not supposed to be part of the Purcell analysis. (This is, in many respects, the core point of Chief Judge Richman’s separate concurring opinion.) By focusing on this concern, the Fifth Circuit majority turns Purcell on its head.

All of this is to say, Judge Oldham’s opinion for nine of the Fifth Circuit’s 17 judges in Petteway seems to me to simultaneously expand Purcell quite unjustifiably and underscore why Purcell itself is largely to blame for such judicial (mis)adventurism. It’s hard to accuse lower courts of misapplying a Supreme Court decision when that decision is so patently standard-less. And although two of the three sets of plaintiffs in Petteway have asked the Supreme Court to vacate the Fifth Circuit’s stay and allow the remedial map to go into effect for the 2024 cycle, I’m not holding my breath that the Court will use this case to solidify or otherwise clarify exactly what Purcell does—and doesn’t—require.

It might be difficult to get too worked up about the Galveston County Commissioners’ Court. But Petteway’s implications for the upcoming 2024 election cycle are pretty staggering. If lower courts are precluded from intervening in elections as much as three months prior to the primary, and/or if the relevant date from which to measure intervention is the appellate court’s ruling, then we might as well just stop doing federal election litigation until the 2024 elections are over (assuming that’s not too far into the 2026 cycle to trigger Purcell). It’s hard to know in advance whether federal judicial interventions in the 2024 election cycle will be necessary. But if this is the future that Purcell (or its application by federal appeals courts) portends, it will make it only that much more difficult for litigants of all stripes to ensure that local, state, and federal elections comply with the Voting Rights Act, other federal statutes, and the Constitution itself. And even if the Supreme Court actually intended such a perverse result, it ought to say so—in a more comprehensive and convincing way than Purcell did.

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SCOTUS Trivia: Justice Douglas Almost Becomes President

Speaking of the Supreme Court and elections, there was a time when justices were often in the running for presidential or vice-presidential consideration—perhaps most famously when Justice Charles Evans Hughes stepped down from the Court in 1916 to accept the Republican nomination for President (Hughes narrowly lost to the incumbent, Woodrow Wilson).

Less well known, methinks, is how close Justice William O. Douglas came not just to the vice presidency, but to the presidency itself. As the story goes, at the 1944 Democratic National Convention, conservative Democrats objected to the re-nomination of the incumbent Vice President, Henry Wallace. President Frankin Delano Roosevelt, who did not attend the convention in person (he was on a train en route to the West Coast as part of a trip to the Pacific Theater), apparently told his advisors that he’d be happy with either Douglas or Missouri Senator Harry S Truman. But the incoming party chairman, Robert Hannegan, who strongly supported his fellow Missourian, managed to have the names reversed in the version of the note from Roosevelt that was shared with convention delegates—so that it appeared as if Roosevelt preferred Truman over Douglas: “You have written me about Harry Truman and Bill Douglas,” the circulated version of FDR’s note read. “I should, of course, be glad to run with either of them and believe that either of them would bring real strength to the ticket.”

Perhaps Truman would have eventually won the nomination even if the names had been in their original (alphabetical) order. But given that it still took Truman several ballots to prevail, it’s not impossible to imagine that, had Hannegan not changed the order, Douglas would have ended up as the Democratic vice-presidential nominee in the 1944 election—and, when Roosevelt died on April 12, 1945, the 33rd President of the United States. Instead, he would spend another three decades on the Supreme Court.

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Happy Monday, everyone. I hope that you have a great week!

1. Much of the discussion in this part of the post is drawn from Chapter 6 of my book, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic (2023).

2. The Fifth Circuit also recognizes, at least for the moment, that private citizens can bring suit to enforce section 2 of the VRA—in contrast to the Eighth Circuit, as I wrote about a few weeks ago. But even if that changes, one of the plaintiffs in the Galveston case is the United States—so that, even if the Fifth Circuit changes direction and sides with the Eighth Circuit, that wouldn’t be fatal here.