By Tor Hawley

Election doctrine as defined in Purcell prohibits courts from interfering with election procedures on the eve of an election. In Purcell, the Supreme Court vacated a Circuit Court injunction on an Arizona voter identification statute. The Court reasoned that any “court orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls.” [1]. Basically, the Court emphasized voter confusion as the fundamental concern for withholding judicial intervention.

The Purcell doctrine in practice, however, is wielded strategically by conservatives and liberals alike. For example, the Supreme Court cited Purcell when it refused to intervene in Florida’s felony disenfranchisement statute that conditions suffrage of formerly incarcerated felons upon full payment of all their court dues. [2]. Justice Sotomayor strongly dissented to the Court’s denial to vacate stay, stating that the Court’s decision “risks immense disfranchisement” of thousands of otherwise eligible voters is in direct opposition to the situation that Purcell sought to avoid. [3]. Justice Sotomayor also noted a judicial trend of inaction that condones disenfranchisement where the Court “wield[s] Purcell as a reason to forbid courts to make voting safer during a pandemic, overriding two federal courts because any safety-related changes supposedly came too close to election day.” [4].

Due to the covid-19 pandemic and emergency responses, last-minute changes to primary elections led to a flood of litigation, and courts face unprecedented decisions regarding the November election. [5]. In some cases, district and appellate courts have affirmatively required legislative action and others have prohibited changes with regard to signature witness requirements, postmark and registration deadlines, and other regulatory provisions. [6].

As election litigation increases and as local and federal governments prepare for election day in the midst of a global pandemic, Purcell may be used creatively to support partisan opinions and approaches. For minority populations, the judicial response is critical to submitting a meaningful ballot especially in a time where registration for mail-in voting options is exploding. [7]. Generally, absentee ballots are not counted at high rates, in some cases up to 30% , due to lack of signature, non-verifiable signature, late postmark, or other logistics issues. [8]. However in Florida for example, Black and Latino absentee ballots are not counted at twice the rate of uncounted white voters’ ballots. [9].

Congress could intervene at the federal level by amending the Electoral Count Act to push back the electoral college vote, giving election officials more time to count and recount the flood of mail-in ballots. [10]. While there are partisan risks to addressing an Act that protects elections at large, especially on the eve of an election, sweeping legislative action could take the burden off the courts. [11]. Such action could act to protect the election from results challenges and ensuing litigation. [12].

In a society of extreme political polarization, is a divided Congress capable of protecting a high stakes election in the midst of a pandemic? Or will emergency electoral regulations face the divided courts, where some utilize Purcell to protect the vote of vulnerable populations and others use it to condone disenfranchisement? What is certain is that without regulatory clarity, voters face significant risks of disfranchisement come November.

Sources

  1. Purcell v. Gonzales, 549 U.S. 1, 4-5 (2006).
  2. Raysor v. DeSantis, 19A1071, 2020 WL 4006868, at *4 (U.S. July 16, 2020).
  3. Id.
  4. Id.; See Republican National Committee v. Democratic National Committee, 589 U. S. ––––, 140 S.Ct. 1205, 206 L.Ed.2d 452 (2020) (per curiam).
  5. DIANA CAO, FLORIDA ELECTION ANALYSIS (2020), available           at           https://healthyelections.org/sites/default/files/2020-06/Florida%20Election%20Memo.pdf
  6. See  Richard  Hasen,  Three  Pathologies  of  American  Voting  Rights  Illuminated  by  the  COVID-19  Pandemic,  and  How  to  Treat  and  Cure  Them,  __  Election Law J. (forthcoming 2020).
  7. See Richard  H.  Pildes,  How  to Accommodate  a  Massive  Surge  in  Absentee  Voting,  U. CHI. L. REV. ONLINE (June  26, 2020), available at https://lawreviewblog.uchicago.edu/2020/06/26/pandemic-pildes/
  8. See  Elise Viebeck & Michelle Ye Hee Lee, Tens of thousands of mail ballots have been tossed out in  this  year’s  primaries.  What  will  happen  in  November?,  WASH. POST (July  16,  2020),  available  at https://www.washingtonpost.com/politics/tens-of-thousands-of-mail-ballots-have-been-tossed-out-in-this-years-primaries-what-will-happen-in-november/2020/07/16/fa5d7e96-c527-11ea-b037-f9711f89ee46_story.html
  9. FLORIDA ELECTION ANALYSIS, supra note 5.
  10. How to Accommodate a Massive Surge in Absentee Voting, supra note 7.
  11. Id.
  12. Id.

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