WASHINGTON — The Supreme Court has frequently admonished judges not to interfere in election cases when the process is already underway, but it is now being accused of doing exactly that in recent decisions favoring Republicans in redistricting fights.
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The court’s ruling in a case from Louisiana that weakened the Voting Rights Act has set off a frenzy in some Republican-led states to draw new congressional maps that favor their party. The stakes are high ahead of this year’s midterm elections that will determine which party controls the House.
The court released its ruling, centered on Louisiana’s map but with national implications, less than three weeks before that state’s congressional primary and after delaying action on the case for more than a year. Now, Louisiana and Alabama are moving back their primaries to reset their districts, and other states could follow.
The court, which has a 6-3 conservative majority, further expedited the process by granting special requests filed by Louisiana and Alabama, allowing the states to move forward with new maps that will eliminate majority-Black districts held by Democrats.
In Louisiana, some ballots had already been returned when Gov. Jeff Landry announced that the House elections originally scheduled for May 16 would be suspended. In Alabama, the primaries were due to take place on May 19, but will now be pushed back to August for the affected districts.
The court’s interventions came as Chief Justice John Roberts complained last week that the American public wrongly perceives the justices to be “political actors.” A recent NBC News poll showed that confidence in the court is at an all-time low, as it has also attracted criticism for its frequent rulings in favor of the Trump administration.
Some liberal critics have suggested the court is not applying the law equally, pointing to its previous decisions that have chided judges changing election rules late in the process.
“I don’t think you can see this as anything other than a raw exercise of power,” Kareem Crayton, a lawyer at the left-leaning Brennan Center for Justice at New York University School of Law, said in an interview.
“The court is effectively, whether they are trying to or not, playing an outsized role in this midterm election. It’s quite unfortunate they have chosen this path,” he added.
Other liberal lawyers and commentators have made similar critiques.
The Supreme Court often relies on a 2006 ruling called Purcell v. Gonzalez, which gave rise to a term now known as the “Purcell principle” that urges judges to show restraint ahead of an election.
In that case, the court blocked a ruling that prevented Arizona from implementing a photo ID requirement for voter registration.
“Court orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase,” the court said in the unsigned opinion.
The decision said, among other things, that the risk of voter confusion is a factor courts should consider before they block an election rule.
The Purcell principle applies specifically to federal courts changing the rules and does not bind state legislatures in the same way.
“It is one thing for state legislatures to alter their own election rules in the late innings and to bear the responsibility for any unintended consequences. It is quite another thing for a federal district court to swoop in and alter carefully considered and democratically enacted state election rules when an election is imminent,” Justice Brett Kavanaugh explained in a 2020 case from Wisconsin.
But in that very case, Kavanaugh also expressed a broader sentiment: “The court’s precedents recognize a basic tenet of election law: When an election is close at hand, the rules of the road should be clear and settled,” he wrote.
In another 2020 case, also from Wisconsin, the court used similarly broad language, referring to “the wisdom of the Purcell principle, which seeks to avoid this kind of judicially created confusion.”
In both the Louisiana and Alabama decisions that green-lighted the redistricting efforts, the Supreme Court’s majority did not explain its reasoning and did not mention Purcell.
Liberal Justice Ketanji Brown Jackson, dissenting in the Louisiana case, pointedly referenced “the so-called Purcell principle” as a reason not to intervene.
In a sharp response, conservative Justice Samuel Alito defended the court’s actions, saying it was “groundless and irresponsible” to suggest the court was abusing its power.
In explaining how the court may feel it is acting consistent with the Purcell principle, Derek Muller, an election law expert at the University of Notre Dame Law School, said it does not apply when a court is lifting an injunction, as the Supreme Court did this week in allowing Alabama to move forward with its preferred map, which had previously been blocked.
While he acknowledged the court’s recent decisions have favored Republicans, giving fuel to critics, Muller noted that the court would face scrutiny whenever it acted.
“The court’s hand is somewhat forced. Whether they act or refuse to act, they are making a decision,” he added.
Justin Levitt, an election law expert at Loyola Law School in Los Angeles, said that in more recent cases, the Purcell principle seemed to have a broader and more vague meaning, suggesting that courts simply should not interfere in approaching elections at all.
“It was a firmer, hands-off, pencils-down principle,” he added.
But the court has applied it unevenly, Levitt noted, pointing to the court’s decision in December that allowed Texas to use a new gerrymandered map that a lower court had blocked even though it was months before the primaries began.
Liberal Justice Elena Kagan dissented in that case in defense of the lower court ruling.
“If Purcell prevents such a ruling, it gives every state the opportunity to hold an unlawful election,” she wrote.
The upshot of recent developments is that the Purcell principle “seems like it’s really not a principle at all,” Levitt said. “It seems the Supreme Court is picking winners and losers, not doing law.”
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