The Supreme Court Loophole That Could Allow States to Sabotage the 2024 Election

Many Americans are rightly afraid for the state of democracy, with the right to vote under attack from state legislatures across the country and the Supreme Court doing little to stand in their way. What many don’t know is that there is a dangerous threat lurking in the background, the abuse of the obscure doctrine known as the Purcell principle. The Purcell principle is a convoluted, under-theorized doctrine born out of the Supreme Court’s shadow docket. The Purcell principle prevents federal judges from striking down election laws when the election is close at hand (sometimes up to four months before). Normally, this would be a good thing, to prevent confusing voters through last-minute changes by courts. However, courts often ignore the impact that these decisions have on voting rights. And this doctrine could be the basis political parties use to influence, if not outright steal, future elections.

When a state legislature knows that courts will not intervene, what is to prevent it from making pivotal, last-minute changes that benefit its own party? Due to the Purcell principle, federal courts will likely do nothing, even if the rights of voters are burdened or the outcome of an election hangs in the balance. If you are a state legislator and you believe that the fate of the country hangs in the balance on a given election, what would you do to ensure victory? The Purcell principle allows state legislatures to game the system at the last minute to ensure victory for the preferred candidate.

The Supreme Court has already allowed the Purcell principle to dictate the outcome of an election in its shadow docket ruling in Merrill v. Milligan. A three-judge panel of the district court in Alabama issued a robust, detailed finding that the state’s congressional districts diluted the ballot of Black voters, in violation of Section 2 of the Voting Rights Act and long-standing legal precedent. The Supreme Court, relying on the Purcell principle, ruled that the Alabama primary, which was more than three months away at the time of the initial response, was “too close” to allow the court to strike down Alabama’s congressional map. As a result, the court permitted the election to proceed with the exact congressional districts that were found to be illegal (and that the Supreme Court itself would later affirm as illegal in Allen v. Milligan). This racially gerrymandered congressional map prevented Black voters in Alabama from electing a second congressional seat and gave that district to Republicans.

This provides a scary lesson for the 2024 presidential election. If a legislature can pass election laws knowing that courts won’t enjoin them even if they are unconstitutional or illegal, then self-interested election officials could use the Purcell principle affirmatively to game the system.

Imagine that, two months before the next presidential election, the Georgia Legislature passes a bill eliminating provisional ballots completely, claiming that they are subject to voter fraud. Provisional ballots, also known in some states as “challenge” or “affidavit” ballots, are required by the federal Help America Vote Act of 2002. When there is uncertainty about a voter’s eligibility—for example, the potential voter’s name is not on the voter rolls or the voter is at the wrong voting precinct—the election official is required to offer the voter a provisional ballot instead of a regular ballot. In most states, a determination of that voter’s eligibility is then made to see if the vote should be counted.

More than 20,000 Georgians, disproportionately Black, successfully voted by provisional ballot in the 2020 general and 2021 runoff elections. Provisional ballots in Georgia went for Democrats by almost 70 percent in the 2020 general and runoff election. Joe Biden received 64 percent of the 11,120 provisional ballots in the 2020 presidential election. He won Georgia’s Electoral College votes by 11,779 votes. Although provisional ballots are small in number, banning them could have a significant impact on the outcome of the 2024 Georgia election.

In such a circumstance, if a lawsuit is brought, a federal court may not immediately strike down this Georgia law. If the election is close at hand, a court will likely not intervene because of the Purcell principle’s prohibition on federal courts striking down laws when an election is near. Even though it is clearly illegal (just like Alabama’s racially gerrymandered congressional districts), Georgia’s law banning provisional ballots due to “voter fraud” could provide legal cover for political gamesmanship.

The Supreme Court has shown an incredible amount of deference toward state legislatures’ governance of elections in general and has upheld unconstitutional or illegal laws under the Purcell principle in the past. The elimination of provisional ballots could potentially swing the outcome of the presidential election in Georgia and would not necessarily be struck down by federal courts under the guise of the Purcell principle.

Cunning lawmakers may try to take advantage of the Purcell principle by passing laws that infringe the rights of voters and game the system simply by waiting until the election is close at hand. This would open up a gaping hole in constitutional protections of the right to vote.

The easiest solution to this problem is that courts should not grant the protection of the Purcell principle to any election laws passed close to an election that intentionally take advantage of the Purcell principle’s protection. Courts must not allow the Purcell principle to be used as a sword by legislatures to create election laws that are wholly shielded from judicial review. Obviously, there are situations when legislatures may need to react to changing circumstances in an election, such as with the COVID-19 pandemic during the 2020 election, but courts should recognize the threat that these last-minute changes can have to our democracy and act accordingly during the coming election season.

The opinions in this article are my personal views and not the views of my employer, Kramer Levin Naftalis & Frankel LLP.