Unprincipled All the Way Down

Abstract

In 2006, the Supreme Court issued an emergency stay order in Purcell v. Gonzalez. Sparing in words and inattentive to the realities on the ground, the opinion nevertheless made a reasonable and understandable assertion: prior to issuing relief, courts presiding over elections should take into account any harms that judicial orders might cause, particularly in the lead-up to voting, alongside other considerations unique to elections. The statement was general enough to mollify the masses in the short-term. But over the long haul, it has proven to be a vehicle through which important election decisions might be made in less than principled ways.

This Paper examines two important dimensions of what Purcell omitted: how the guidance relates to principles of federalism and equity. In the years since the opinion’s issuance, the Supreme Court has elaborated on the Purcell principle, suggesting that it binds federal courts alone. Yet state courts have drawn on Purcell to justify their own decisions to rule or abstain from ruling in election disputes. In those decisions, furthermore, they have attempted to fit Purcell into their states’ equitable regimes. There is no uniformity among the states, as one might expect, but one also observes the absence of doctrinal clarity, coherence, and consistency in its application. Based on a survey of state election cases, this Paper, which is part of a larger project devoted to examining the Purcell principle, contends that the problem of Purcell is far more diffuse and potent than one could have predicted.

Keywords: Election Law, Law of Democracy, Federalism, Equitable Remedies, State Judiciaries, U.S. Supreme Court