How Close to Election Day Can Voting Laws Change? That’s Up to the Supreme Court
(Bloomberg) -- The US Supreme Court is weighing how close to elections judges can change voting rules, with the potential to affect legal fights unfolding across the county less than three months before the presidential contest.
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In Arizona — a battleground for Donald Trump as he tries to reclaim the White House — the Republican National Committee has asked the justices to restore a state law requiring proof of citizenship to register to vote after it was blocked by an appeals court. The case is the latest test of a nearly 20-year-old ruling that cautioned against last-minute federal court action that causes “voter confusion.”
Any action by the justices could give judges handling fights over state voting practices fresh guidance about how to account for proximity to the Nov. 5 election, when voters will choose the next US president and federal lawmakers. The RNC asked for a decision by Aug. 22. The court ordered responses by Friday.
The justices haven’t laid out a comprehensive framework for how lower courts should apply what’s known as the “Purcell principle,” after the 2006 Supreme Court opinion. Without that guidance, it’s been left up to judges to decide when it’s too late to act ahead of an election and how to balance timing against other issues at stake, leading to claims of political gamesmanship.
“That subjectivity opens the door to at least the appearance that judges are applying it in ways that produce sharply partisan results,” said Stephen Vladeck, a professor at Georgetown University Law Center.
In the 2006 case, Purcell v. Gonzalez, the Supreme Court reversed a lower court that had halted voter identification rules in Arizona, citing the “imminence” of the midterm election.
In the latest case, an Arizona federal judge blocked the state’s proof of citizenship law, and then a 9th US Circuit Court of Appeals panel reinstated it. But a different appeals panel blocked it again in a 2-1 decision on Aug. 1.
‘Manifest Injustice’
The 9th Circuit judges in the majority, both appointed by former President Bill Clinton, cited Purcell, writing that the first panel caused a “manifest injustice” by upsetting the status quo before the state’s July primary and after registration was underway for the general election.
Judge Patrick Bumatay, who was nominated by Trump, dissented, writing that the majority had taken a “highly irregular” step by overruling the first panel. Given “the political nature of this case,” Bumatay wrote, the court should “be especially careful to avoid the use of unconventional or disfavored procedures.”
The RNC has asked the justices to immediately intervene and allow Arizona to enforce the law while the case goes forward. The party’s lawyers argued that Purcell is supposed to protect “state election-integrity measures from last-minute interference,” as opposed to a “general interest in the status quo.”
Purcell has come up in other cases this year. On July 22, an Ohio federal judge blocked a state law restricting who could assist voters with disabilities, rejecting opposition from the state and the RNC that cited Purcell. A week later, a Louisiana federal judge concluded it was too late to take up a similar fight.
The election proximity issue featured in 2020, as courts grappled with how Americans could vote during the pandemic. When a majority of justices sided against a Wisconsin judge who extended the state’s mail ballot deadline, Justice Elena Kagan accused her colleagues of giving too much weight to timing.
“There is not a moratorium on the Constitution as the cold weather approaches,” she wrote.
Justices Disagree
Democrats in Congress proposed legislation after 2020 meant to clarify how courts should handle pre-election cases, but it hasn’t passed.
The justices have continued to disagree about how the calendar should factor into election cases. In 2022, the court’s conservative majority cited Purcell in a 5-4 order leaving Alabama’s congressional map in place ahead of the midterm election after a lower court judge ordered it redrawn.
In May, the court invoked Purcell in reinstating a Louisiana map that added another majority-Black district. The case flipped the court’s usual ideological lineup, with the three liberal justices dissenting despite the outcome. Justice Ketanji Brown Jackson said she would have let the legal fight play out, writing that there was “little risk of voter confusion from a new map being imposed this far out from the November election.”
Election law experts say the dozens of challenges already filed this year are a sign that political parties and advocacy groups are mindful of Purcell and hoping for rulings based on the merits, not the date.
“It’s definitely pushed litigants to try to sue early in the cycle and move quickly,” said Derek Muller, a professor at University of Notre Dame Law School.
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