Last week, in RNC v. Mi Familia Vota, the Supreme Court granted a partial stay of a district court order enjoining portions of Arizona’s election laws that require proof of citizenship for voter registration. The question splintered the justices. Justices Thomas, Alito, and Gorsuch would have stayed the district court order (allowing the Arizona law to take effect) in full, while all four female justices (Kagan, Sotomayor, Barrett, and Jackson) would have denied the stay request across-the-board. Thus, the Chief Justice and/or Justice Kavanaugh made the difference (possibly “or” because only one of them needs to have voted with the female justices to deny part of the stay request).
Over at the Election Law Blog, there is a little debate over whether this order violates the “Purcell Principle,” which seeks to prevent meaningful changes to election laws or election administration in the run-up to election day.
Rick Hasen thinks the order violates the principle because it alters and complicates the rules governing voter registration. Although he’s not a fan of Purcell, he thinks the Supreme Court should be criticized for not applying it consistently. He writes:
beginning today, people who try to register to vote using the state form who do not provide documentary proof of citizenship while registering to vote will not be allowed to register at all. 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. Although the plaintiffs in the case raised the Purcell issue repeatedly, the Supreme Court ignored it here. . . .
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. How a court that is committed to Purcell could allow this to happen is inexplicable.
Derek Muller takes a different view. According to Muller, Purcell is not about whether the Supreme Court should stay its hand in the period just before an election, but whether the federal judiciary should. He writes:
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. DNCÂ (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. . . .
if the Court is serious about Purcell, . . . 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.
Professors Hasen and Muller are both more expert on this question than I am, but Professor Muller’s account is more consistent with the way that I have understood Purcell. As I see it, if the principle is to apply to lower courts, then the Supreme Court has no choice but to intervene no-less-close to an election than the offending lower court if the principle is to mean anything at all. To which I suspect Professor Hasen would reply: Perhaps that is a reason not to have this principle in the first place. I take the point, but would question whether abandoning Purcell altogether would make it too easy to game election rules with strategic litigation.
