Squaring State Legal Challenges with Purcell
October 29, 2020
By Fiona Carroll
Following the near-disastrous administration of Georgia’s June primary, there are a number of suits pending that will determine how, when, and whether some voters may engage in the general election next month.
Just in the last week, courts have been sorting out how ballots will be counted. One of the most contentious of these issues involves Georgia’s absentee ballot reception deadline. With the current public health situation, demand for mail-in voting has skyrocketed. Voting rights advocates urged state election officials to extend the period for which county election offices would count ballots postmarked by Election Day to the three days following the general election. When officials refused, voting rights advocates sought an injunction to force the State to extend the deadline.
On August 31, a federal District Court judge granted the preliminary injunction, extending the deadline for the State to consider mail-in ballots. State officials appealed the injunction, and a three-judge panel of the 11th Circuit Court of Appeals stayed the order, citing concern for the autonomy of the State to administer its own elections. Currently, only ballots received by election offices on or before Election Day will be counted.
This case, and others pending, falls against the backdrop of the Purcell principle, which asserts a presumption against last-minute changes to election procedures. The principle was developed in the 2006 case Purcell v. Gonzalez, in which the Supreme Court considered a challenge by voting rights activists to Arizona’s voter identification requirements. The challenge sought to broaden voters’ access to the ballot by asking the Court to uphold an injunction that would have kept Arizona’s proof of citizenship requirement from being enforced on Election Day. The Court refused to uphold the injunction, citing, among other things, the need to avoid issuing conflicting orders close to Election Day that would confuse votes and incent them to stay away from the polls. Of course, the irony here is that if the injunction had been upheld, it is likely more voters would have been eligible to exercise the franchise.
While Purcell is not an ironclad rule or doctrine, Nicholas Stephanopoulos, an election law scholar at Harvard Law School, has identified several factors to consider for deciding when Purcell should prevent a federal court from acting. One of these factors questions whether action by a court will cause voter confusion.
In the challenge regarding ballot reception deadlines, the initial stay of the State’s Election Day deadline seems it could cause voter confusion. If an average voter, whom does not make a point tracking election law challenges in federal court, only heard that from the District Court issued the stay and ordered offices to count ballots received within three days of Election Day, that could impact voting behavior. Not to mention that over 1.4 million absentee ballots have been requested in Georgia. So, this factor seems to suggest that court action was inappropriate.
In issuing its injunction, the District Court may have considered another one of Stephanopoulos’s factors, however, that questions whether voters will be disenfranchised if the court fails to act. With the ballot deadline, it seems likely that more voters would be excluded from the general election with the reception requirement, versus the postmark requirement, falling on Election Day. So, this factor perhaps suggests a court should intervene.
It is difficult yet to perceive how legal challenges in Georgia will impact voter enthusiasm and turnout a few short weeks from now on Election Day. However, given the Purcell principle, it is rather confounding to try to reconcile the changes that the ballot deadline litigation has initiated, along with other pending challenges that are poised to impact general election voting in Georgia.