Purcell in Pandemic

Abstract

Given the major events in the 2020 election cycle, one might be forgiven for missing an important development: the Supreme Court’s repeated invocation of Purcell v. Gonzalez. The number of opinions from this past election cycle referencing the case that, among other things, urges courts to think twice before ruling in election challenges in the leadup to voting was quite astounding. For election law scholars and practitioners alike, 2020 will also be remembered as the cycle during which Purcell all but cemented its place in the pantheon of U.S. election-law principles. The year of “pandemic primaries” and general presidential election might also be called the year of Purcell. Scholars have criticized the Court following its 2006 Purcell ruling. Despite their astute observations, however, it is unclear whether anyone could have foreseen the full extent of Purcell’s potency—or envisioned the damage it was capable of causing. A sad, even if understandable, attempt to cope with the harsh realities of election administration has become unmoored from its purpose and origins. Simple guidance for judicial decisionmaking on the eve of elections has been thoughtlessly applied—and tragically over-exploited—such that it has become part of the problem. Nothing proves this better than Purcell in the pandemic. That is exactly what this Article contends. Unmasking Purcell during the pandemic reveals the principle as vacuous, self-contradictory, amorphous, and more prone to aggrandizing election-related concerns—including those that the Supreme Court suggested it should mitigate. Because it empowers the Court to frustrate carefully crafted opinions and orders, it remains susceptible to manipulation for political gain, and typically produces predictably partisan outcomes. A review of the Court’s admonitions in the case, and its application in the 2020 cycle, exposes Purcell for what it actually is: an ersatz legal principle that risks corrupting the entire field. The Article proceeds in three parts. Part I provides some background about Purcell. It describes the facts of the original case, as well as its central holding. Part II draws on some of the most salient scholarly critiques, highlighting some of Purcell’s chief deficiencies. To that, I add my own assessment: Purcell is mostly a charade. The holding possesses a certain superficial appeal but, when reduced to its core, Purcell’s tenets are either well-established or commonsensical. More problematic, however, is its incoherence. Its reasoning overemphasizes the threat of voter confusion relative to more important election concerns, yet the action the Court takes only exacerbates the potential for the very same confusion it was purportedly designed to combat. Also notable is what is absent from the decision. It provides no guidance as to the weight the principle carries or where it fits into the equitable relief analysis, and it ignores—and perhaps augments—the potential for government actors, including courts, to use Purcell to put their thumbs on the scale. Finally, Part III briefly endeavors to demonstrate these points using some examples from the 2020 pandemic primaries and the general election. The extraordinary nature of the pandemic should arguably have revealed the limits of a principle governing the appropriateness of extraordinary election-related relief. Yet, virtually without fail, Purcell’s shortcomings were laid bare in the cases where the Court cited it or suggested that it applied. Far from contributing to election law jurisprudence, Purcell has constructed an empty vessel for unprincipled decisionmaking and consistently results in rulings that are detrimental to the nation’s most vulnerable voters.