The Purcell Principle—the idea that courts should think twice about changing the rules before elections to avoid confusing voters—is sorely misunderstood. Despite deriving from a three-page opinion, the Purcell Principle has morphed into one of the Supreme Court’s most powerful election-law doctrines. By and large, the Court has interpreted the principle as a bright-line rule barring any judicial intervention close to elections and has overwhelmingly used the principle to uphold voting restrictions. That’s a problem because the Purcell Principle is not a bright-line rule. And it’s certainly not one that rubber stamps voting restrictions. To make matters worse, we know little about why the Court wields the principle in this way because it has been developed on the Court’s shadow docket. Lower courts are thus left with almost no guidance on when the Purcell Principle applies—when is a late change likely to cause confusion, how late is too late, and what considerations could outweigh the principle?
This Article adds structure to the Purcell Principle. Election-related court orders can be sorted into two categories: positive and negative. “Positive” orders add voting restrictions, while “negative” orders remove voting restrictions. Each category leads to different types of confusion. Positive orders produce underinclusive voter behavior—think bringing less identification to the polls than necessary—which risks disenfranchisement. Negative orders, on the other hand, lead to overinclusive voter behavior—think bringing more identification than necessary—which tends not to prevent people from voting. That matters because Purcell’s text and long-forgotten predecessor cases show that the operative inquiry in a Purcell case is whether a court’s order will chill voting. If a late rule change will not confuse voters in a way that stops them from voting, Purcell is no reason to halt that change. This Article argues that to safeguard the Purcell Principle’s integrity, courts ought to adopt a “presumption of no confusion”: presume negative orders do not confuse voters in a way that disenfranchises those voters unless evidence suggests otherwise. In doing so, this Article reimagines Purcell in the way most consistent with common sense, Purcell itself, and Purcell’s roots.
Harry B. Dodsworth, The Positive and Negative Purcell Principle, 2022 ULR 1081 (2022). https://doi.org/10.26054/0d-9nqp-9t93