It would be helpful if SCOTUS fully defined what they mean by "the eve of an election.". To date, that definition seems to be whatever SCOTUS wants it to be based on the case outcome they are seeking.
If a state legislature passed a law two weeks before the general election that said only registered Republicans could vote in the election, or that black people cannot vote in the election, under this latest incarnation of the Purcell Principle, no federal court would able to block that law?
I see a lot here about legislators and litigants, but not much about the courts! Much of the schedule and timing of Allen III appears to be of the courts of appeals own making. Are the courts just given unfettered good faith?
I should also point out the line that stuck out to me from the majority in Allen III: "We
have repeatedly cautioned that lower federal courts should not “alter the election rules on the eve of an election.”" It seemed novel to me, and others, that apparently Purcell only applies to lower federal courts and not SCOTUS? This seems novel in so much as it is officially documented now. It also raises the unfortunate explanation that SCOTUS now has an official policy of "Purcell for thee, and not for me" which it can use to get its desired political outcome from a case just by waiting to issue a shadow docket decision (Allen III) or even a merits decision (Callais).
"It seemed novel to me, and others, that apparently Purcell only applies to lower federal courts and not SCOTUS?"
This is not novel. RNC v. DNC, the case the Court cites, had the same posture and discusses this issue. It was criticized on this ground, to be sure, but it's not novel.
I guess another way of putting it: Surely the majority in RNC v. DNC thought that CA7 should have stayed the order at issue there before the Court had to intervene. That means it wasn’t really an issue of “Supreme Court vs. lower courts.” The point is that the Court doesn’t see a stay or vacatur of a federal court’s injunction — and reversion to the otherwise governing state-law rules — as the kind of change in election procedures that implicates the Purcell logic.
It seems to me that there are two ways of thinking about that passage in RNC v. DNC. The first — which is admittedly the literal reading of the words the Court used — is that the Court was reserving for itself the possibility of issuing disruptive election-proximate injunctions of the sort that, if they were to be issued by a lower court, would be held to violate Purcell. That would be extraordinarily hard to defend.
The second reading is that the Court was emphasizing that it will closely superintend the lower courts’ compliance with Purcell and in particular will not allow the incremental passage of time between a lower court’s order and the Court’s intervention — and the attendant possibility that the Court’s even later intervention will lead to additional confusion and disruption — to insulate the lower court’s Purcell error from review. That is, the Supreme Court will directly review the lower court’s application of Purcell, rather than treating the lower court’s order as a new status quo and asking whether vactur would cause additional confusion and disruption.
That reading strikes me as more consistent with the posture in RNC and the arguments pressed by the dissent. And it seems like a reasonable, if debatable, move. You may end up with more confusion and disruption in the individual case, but perhaps less confusion and disruption in the aggregate if you’re concerned that the lower courts would get up to mischief with more circumscribed review from the Court.
I agree with all of this -- the real issue is that the Court believes that the Purcell principle does not apply to appellate review of federal action restraining state laws, and indeed, that they believe Purcell *requires* last minute changes if the changes take the form of reversing or vacating lower court action that itself violated Purcell.
Because the Supreme Court mostly hears these cases in that posture, and because district courts of course do not engage in appellate review, the Supreme Court vs. lower court is just a shorthand, and not totally accurate.
And I believe both Allen 3 and RNC v. DNC are consistent with this more precise version.
This had evaded my attention! I forgot they were similarly explicit then about how Purcell only applies to lower federal courts.
One could (I guess I will!) easily make the argument though that there the lower court had stepped in to grant relief that no one had asked for (the 6 day results disclosure bar if memory serves) which might have been used to justify SCOTUS intervention to revert to the status quo. I.e. stepping in at a late hour to prevent a change and confusion. In Allen III we have a set of maps that a lower court barred 3 years ago and has repeatedly found to be unconstitutional. It seems novel (maybe I should stop using this word) that SCOTUS is saying Purcell doesn't apply to themselves even when it causes last minute changes that weren't the status quo ante. (I'm sure people will argue about what the status quo ante was!)
What really upsets me about the courts election law jurisprudence is how this all sits with Chiafflo. I can appreciate saying: let's punt this shit to the political branches who the constitution empowered to deal with this stuff in the first place. Fine.
But ruling that electors can be bound by state law (on reasoning that -- if valid -- would apply equally to senators if not representatives) is the most anti-originalist deciscion one can imagine justified by the intuition that it wouldn't be small d democratic.
Pick a lane. Either leave it up to the political branches the way the constitution created the system or enforce a modern notion of electoral fairness.
I think most of SCOTUS simply has the view that how to conduct an election is a political choice and short of outright refusing to count votes the primary remedy for bad faith actions by the legislature is political and the role of the courts should be secondary to the political branches -- if the state acts shady via last minute manuevers the voters are supposed to judge them.
Ok, it's a way you can run a country -- the UK essentially runs that way -- but what isn't reasonable is suddenly stepping aside after a hundred years establishing judicial supremacy, creating a political culture in which citizens ensure political fairness and constitutional order by (indirectly) selecting judges and encouraging their politicians to pass laws that expect judicial intervention in elections.
It would be helpful if SCOTUS fully defined what they mean by "the eve of an election.". To date, that definition seems to be whatever SCOTUS wants it to be based on the case outcome they are seeking.
If a state legislature passed a law two weeks before the general election that said only registered Republicans could vote in the election, or that black people cannot vote in the election, under this latest incarnation of the Purcell Principle, no federal court would able to block that law?
I see a lot here about legislators and litigants, but not much about the courts! Much of the schedule and timing of Allen III appears to be of the courts of appeals own making. Are the courts just given unfettered good faith?
I should also point out the line that stuck out to me from the majority in Allen III: "We
have repeatedly cautioned that lower federal courts should not “alter the election rules on the eve of an election.”" It seemed novel to me, and others, that apparently Purcell only applies to lower federal courts and not SCOTUS? This seems novel in so much as it is officially documented now. It also raises the unfortunate explanation that SCOTUS now has an official policy of "Purcell for thee, and not for me" which it can use to get its desired political outcome from a case just by waiting to issue a shadow docket decision (Allen III) or even a merits decision (Callais).
"It seemed novel to me, and others, that apparently Purcell only applies to lower federal courts and not SCOTUS?"
This is not novel. RNC v. DNC, the case the Court cites, had the same posture and discusses this issue. It was criticized on this ground, to be sure, but it's not novel.
I guess another way of putting it: Surely the majority in RNC v. DNC thought that CA7 should have stayed the order at issue there before the Court had to intervene. That means it wasn’t really an issue of “Supreme Court vs. lower courts.” The point is that the Court doesn’t see a stay or vacatur of a federal court’s injunction — and reversion to the otherwise governing state-law rules — as the kind of change in election procedures that implicates the Purcell logic.
It seems to me that there are two ways of thinking about that passage in RNC v. DNC. The first — which is admittedly the literal reading of the words the Court used — is that the Court was reserving for itself the possibility of issuing disruptive election-proximate injunctions of the sort that, if they were to be issued by a lower court, would be held to violate Purcell. That would be extraordinarily hard to defend.
The second reading is that the Court was emphasizing that it will closely superintend the lower courts’ compliance with Purcell and in particular will not allow the incremental passage of time between a lower court’s order and the Court’s intervention — and the attendant possibility that the Court’s even later intervention will lead to additional confusion and disruption — to insulate the lower court’s Purcell error from review. That is, the Supreme Court will directly review the lower court’s application of Purcell, rather than treating the lower court’s order as a new status quo and asking whether vactur would cause additional confusion and disruption.
That reading strikes me as more consistent with the posture in RNC and the arguments pressed by the dissent. And it seems like a reasonable, if debatable, move. You may end up with more confusion and disruption in the individual case, but perhaps less confusion and disruption in the aggregate if you’re concerned that the lower courts would get up to mischief with more circumscribed review from the Court.
I agree with all of this -- the real issue is that the Court believes that the Purcell principle does not apply to appellate review of federal action restraining state laws, and indeed, that they believe Purcell *requires* last minute changes if the changes take the form of reversing or vacating lower court action that itself violated Purcell.
Because the Supreme Court mostly hears these cases in that posture, and because district courts of course do not engage in appellate review, the Supreme Court vs. lower court is just a shorthand, and not totally accurate.
And I believe both Allen 3 and RNC v. DNC are consistent with this more precise version.
This had evaded my attention! I forgot they were similarly explicit then about how Purcell only applies to lower federal courts.
One could (I guess I will!) easily make the argument though that there the lower court had stepped in to grant relief that no one had asked for (the 6 day results disclosure bar if memory serves) which might have been used to justify SCOTUS intervention to revert to the status quo. I.e. stepping in at a late hour to prevent a change and confusion. In Allen III we have a set of maps that a lower court barred 3 years ago and has repeatedly found to be unconstitutional. It seems novel (maybe I should stop using this word) that SCOTUS is saying Purcell doesn't apply to themselves even when it causes last minute changes that weren't the status quo ante. (I'm sure people will argue about what the status quo ante was!)
What really upsets me about the courts election law jurisprudence is how this all sits with Chiafflo. I can appreciate saying: let's punt this shit to the political branches who the constitution empowered to deal with this stuff in the first place. Fine.
But ruling that electors can be bound by state law (on reasoning that -- if valid -- would apply equally to senators if not representatives) is the most anti-originalist deciscion one can imagine justified by the intuition that it wouldn't be small d democratic.
Pick a lane. Either leave it up to the political branches the way the constitution created the system or enforce a modern notion of electoral fairness.
I think most of SCOTUS simply has the view that how to conduct an election is a political choice and short of outright refusing to count votes the primary remedy for bad faith actions by the legislature is political and the role of the courts should be secondary to the political branches -- if the state acts shady via last minute manuevers the voters are supposed to judge them.
Ok, it's a way you can run a country -- the UK essentially runs that way -- but what isn't reasonable is suddenly stepping aside after a hundred years establishing judicial supremacy, creating a political culture in which citizens ensure political fairness and constitutional order by (indirectly) selecting judges and encouraging their politicians to pass laws that expect judicial intervention in elections.