The justices have never been asked to apply the “Purcell principle” to a federal election rule. If asked to do so in the mail-in ballots cases, they shouldn't.
My heavens. What a thought. What a plaintive voice in the wind. The DOJ is using that argument. Has all along. And this heads I win, tails you lose Supreme Court used the flip side of it, in its decision to overrule the Court of Appeals to let the cases get good and rotten on the vine.
Here is what we have going on. Roberts does not want to be on the losing side if these cases, nor dies he want to author a 5/4 decision. He has lost the resoect of the minority for good now. He does not want to lose that if any of his partisan colleagues. Nor their votes if they can be had. There are those that will vote to put a stop to this mockery of law and order, on a par with Trump's birthright citizenship order. But there are some who will not abd he wants to keep them in the fold as long as possible. The prior decision represents an agreement reached with them concerning the cases. For the most part, it is just a six person Supreme Court. All that matters to its Reoublican appointed members is what they can agree upon amongst themselves. Like for instance absolving the President of crimes committed while in office.
"Beyond a descriptive claim about the twenty-year history of Purcell, that’s also a normative one. Even taking Purcell at face value, there are two independent reasons why it should not apply when the federal government is the defendant, and a third reason, even for those who embrace Purcell in full, why the Trump administration shouldn’t be able invoke it in the mail-in ballots cases specifically."
Why are you concerned that the Trump administration will invoke Purcell?
Is it because the administration seems to be as desperate for legal rationales as rats looking for food in dumpsters? Or have you seen some evidence that it might?
what if SCOTUS rules as it should and does not intervene . Could it be that certain (red) states will recognize Trump's EO and the USPS rule implementing same? Is it possible that some states will recognize the EO while others will not, thereby throwing the election into the desired chaos??
The point of the USPS Rule is to limit which mail-in ballots will be delivered to voters. So long as the Rule is blocked, the USPS can't enforce those limits, no matter what any individual state might want. So some states "recognizing" the EO and the Rule won't matter because they can't actually *do* anything about it.
If the rule is stayed, I cannot envision the red states recognizing the rule by themselves as that would likely impcat their own voters withoiut a conceivable partisan benefit.
As I'm sure you've read about by now, a Post Office whistle-blower claims that the USPS is simply ignoring Judge Talwani's injunctions and proceeding to implement Trump's plans. That's certainly plausible given the degree of corruption in this administration, and if it's true, Judge Talwani's rulings simply don't matter in practice.
I am on record here as advocating for much stronger rules for judge invoking both unclean hands and judicial estoppel. If that argument in Talwani II gets dismissed and overridden, then all hope is lost on the current SCOTUS Six being anything other than partisan hacks.
"New York’s highest court sounded a similar theme in 2022: “The Purcell doctrine cautions federal courts against interfering with state election laws when an election is imminent, and does not limit state judicial authority where, as here, a state court must intervene to remedy violations of the State Constitution.” States can choose to follow Purcell; the relevant point is that it’s their choice."
It seems to me that the main point of Bush v Gore is to reject the idea that it was the Florida Supreme Court's choice to make.
The Purcell “principle” seems in practice to operate more as an example that contradicts the proverb that "What is sauce for the (Republican) goose is sauce for the (Democratic) gander." It is also a contemporary example of the original divide at the foundation of the Republic between beliefs about what falls within the purview of states, and the right or power or responsibility of the federal government to maintain uniformity – but in what respects (abortion rights, discrimination against specified groups of humans, restrictions on marriage, imposition of the death penalty etc.)? - across and between states for the sake of forming “a more complete union.” Union is not a synonym for, nor does it express an aspiration to uniformity, which can easily turn out to be oppressive and resistant to necessary or valuable changes and the consideration of innovative ideas, especially when it is cloaked in a powerful fundamentalist religious garb or an ideology that insists on conformity or worse obeisance to a Leader. Much has been said recently about the importance of character in deciding which candidate(s) for office to vote for or against. In my experience one indication of a strong, worthy and trustworthy character, whether I agree with them on all issues or not, is an acknowledgement that they do not know everything, and are willing to change their minds if presented with information and evidence that casts doubt on and effectively rebuts their previous position.
The Constitution seems crystal clear with regard to elections, that it is up to states to run them, not the federal government, although the federal government does intervene (and has) if a state violates or removes, either in theory or in practice, the right to vote of any of its citizens, who are also of course American citizens. Abraham Lincoln famously said, before the Civil War, "I believe this government cannot endure, permanently half slave and half free." Today he might say “I believe this government cannot endure, if the right and ability of its citizens to vote varies depending on where they reside."
There is another aspect of the current (in my mind outrageous trickery) practiced by some states and seemingly condoned by some Supreme Court (In)Justices regarding when material changes can be introduced by a state in its electoral rules in periods leading up to when an election is due to take place. After ballots have been printed? After early voting has begun? On the day of the election itself , e.g. changing the locations of the polling places where voters are supposed to cast their ballots? Once again, these (In)Justices – willfully or not – seem oblivious to the practical, predictable and in this context unmistakably discriminatory consequences of actions in this context – the basis of any democracy – which change the conditions and rules of an election after much effort, time and money have already been spent on preparing its content and the means for it to operate efficiently and as clearly as possible from the perspective of voters, aka We the people. The question posed by Army chief counsel Joseph Welch to Senator McCarthy in 1954 is sadly applicable to these Judges, ““Have you no sense of decency, sir, at long last?” (although sirs and madam should be substituted for sir ).
I realize that the mmebers of USPS Board of Governors are apponted by the President and approved by the Senate, but is there a role for the USPS Board of Governors to reject “orders” from the White House or a state telling the USPS to whom and what they can mail? Could this Board act independently of the President, adhering to the Constitution unlike the Republcan Congress and Supremes? I believe there are 9 Governors, 4 appointed by Biden and 5 vacancies with nominations submitted by Trump but not yet approved by the Senate. Do these 4 have the power, or could they tell the President and any state legislature to go pound sand?
Purcell should apply when the pre-action status was legitimate as well as the post-action status, as with redistricting. The action in question was not legitimate before nor would it be after. Only Trumpers would think it was clever to time the action so that they could ask for Purcell to be applied.
Isn't there a sort of a reason-for Purcell argument against the government's position here: That changing voting by mail rules this close to the election - when in at least some states ballots are already being printed and perhaps even mailed - will surely lead to voter confusion about how and what they must/may do to vote?
I looked at the link provided in discussing Federalism/Purcell Doctrine. Here's a little more from Justice Kavanaugh:
“This Court has repeatedly stated that federal courts ordinarily should not enjoin a State's election laws in the period close to an election… That principle—known as the Purcell principle—reflects a bedrock tenet of election law: When an election is close at hand, the rules of the road must be clear and settled. Late judicial tinkering with election laws can lead to disruption and to unanticipated and unfair consequences for candidates, political parties, and voters, among others...
"It is one thing for a State on its own to toy with its election laws close to a State's elections. But it is quite another thing for a federal court to swoop in and re-do a State's election laws in the period close to an election.”
P. 301
Merrill, Alabama Secretary of State, et al. v. Milligan et al (2022)
You missed the point. The first decision was too early as you noted, but 5 nanoseconds later, it would have been too late. We live by the Rule of Alice in Wonderland.
Yes. But not only is that expensive because it needs to be secure (and likely need constant guard in this climate), it doesn't fix the problem of people unable to get to their own district in time to pick up or drop their ballots off.
I know it is an imperfect solution. I think to the extent feasible, offering that as a back up solution will help a fair number of voters. I agree it is a full-blown solution and none of this should happen this close to an election. With the way the Supreme Court has approached this issue, however, I take nothing for granted.
My heavens. What a thought. What a plaintive voice in the wind. The DOJ is using that argument. Has all along. And this heads I win, tails you lose Supreme Court used the flip side of it, in its decision to overrule the Court of Appeals to let the cases get good and rotten on the vine.
Here is what we have going on. Roberts does not want to be on the losing side if these cases, nor dies he want to author a 5/4 decision. He has lost the resoect of the minority for good now. He does not want to lose that if any of his partisan colleagues. Nor their votes if they can be had. There are those that will vote to put a stop to this mockery of law and order, on a par with Trump's birthright citizenship order. But there are some who will not abd he wants to keep them in the fold as long as possible. The prior decision represents an agreement reached with them concerning the cases. For the most part, it is just a six person Supreme Court. All that matters to its Reoublican appointed members is what they can agree upon amongst themselves. Like for instance absolving the President of crimes committed while in office.
"Beyond a descriptive claim about the twenty-year history of Purcell, that’s also a normative one. Even taking Purcell at face value, there are two independent reasons why it should not apply when the federal government is the defendant, and a third reason, even for those who embrace Purcell in full, why the Trump administration shouldn’t be able invoke it in the mail-in ballots cases specifically."
Why are you concerned that the Trump administration will invoke Purcell?
Is it because the administration seems to be as desperate for legal rationales as rats looking for food in dumpsters? Or have you seen some evidence that it might?
Thank you for this article. Found it interesting and learned a new principle.
what if SCOTUS rules as it should and does not intervene . Could it be that certain (red) states will recognize Trump's EO and the USPS rule implementing same? Is it possible that some states will recognize the EO while others will not, thereby throwing the election into the desired chaos??
The point of the USPS Rule is to limit which mail-in ballots will be delivered to voters. So long as the Rule is blocked, the USPS can't enforce those limits, no matter what any individual state might want. So some states "recognizing" the EO and the Rule won't matter because they can't actually *do* anything about it.
If the rule is stayed, I cannot envision the red states recognizing the rule by themselves as that would likely impcat their own voters withoiut a conceivable partisan benefit.
As I'm sure you've read about by now, a Post Office whistle-blower claims that the USPS is simply ignoring Judge Talwani's injunctions and proceeding to implement Trump's plans. That's certainly plausible given the degree of corruption in this administration, and if it's true, Judge Talwani's rulings simply don't matter in practice.
[1] https://www.blumenthal.senate.gov/imo/media/doc/2026-8-31_usps_whistleblower_letter_final_with_disclosure.pdf
Time for contemp proceedings?
Steve:
If the Court “jumps the shark” will you let us know immediately? I hope so. Thanks.
Michael
I am on record here as advocating for much stronger rules for judge invoking both unclean hands and judicial estoppel. If that argument in Talwani II gets dismissed and overridden, then all hope is lost on the current SCOTUS Six being anything other than partisan hacks.
From Steve in the piece:
"New York’s highest court sounded a similar theme in 2022: “The Purcell doctrine cautions federal courts against interfering with state election laws when an election is imminent, and does not limit state judicial authority where, as here, a state court must intervene to remedy violations of the State Constitution.” States can choose to follow Purcell; the relevant point is that it’s their choice."
It seems to me that the main point of Bush v Gore is to reject the idea that it was the Florida Supreme Court's choice to make.
The Purcell “principle” seems in practice to operate more as an example that contradicts the proverb that "What is sauce for the (Republican) goose is sauce for the (Democratic) gander." It is also a contemporary example of the original divide at the foundation of the Republic between beliefs about what falls within the purview of states, and the right or power or responsibility of the federal government to maintain uniformity – but in what respects (abortion rights, discrimination against specified groups of humans, restrictions on marriage, imposition of the death penalty etc.)? - across and between states for the sake of forming “a more complete union.” Union is not a synonym for, nor does it express an aspiration to uniformity, which can easily turn out to be oppressive and resistant to necessary or valuable changes and the consideration of innovative ideas, especially when it is cloaked in a powerful fundamentalist religious garb or an ideology that insists on conformity or worse obeisance to a Leader. Much has been said recently about the importance of character in deciding which candidate(s) for office to vote for or against. In my experience one indication of a strong, worthy and trustworthy character, whether I agree with them on all issues or not, is an acknowledgement that they do not know everything, and are willing to change their minds if presented with information and evidence that casts doubt on and effectively rebuts their previous position.
The Constitution seems crystal clear with regard to elections, that it is up to states to run them, not the federal government, although the federal government does intervene (and has) if a state violates or removes, either in theory or in practice, the right to vote of any of its citizens, who are also of course American citizens. Abraham Lincoln famously said, before the Civil War, "I believe this government cannot endure, permanently half slave and half free." Today he might say “I believe this government cannot endure, if the right and ability of its citizens to vote varies depending on where they reside."
There is another aspect of the current (in my mind outrageous trickery) practiced by some states and seemingly condoned by some Supreme Court (In)Justices regarding when material changes can be introduced by a state in its electoral rules in periods leading up to when an election is due to take place. After ballots have been printed? After early voting has begun? On the day of the election itself , e.g. changing the locations of the polling places where voters are supposed to cast their ballots? Once again, these (In)Justices – willfully or not – seem oblivious to the practical, predictable and in this context unmistakably discriminatory consequences of actions in this context – the basis of any democracy – which change the conditions and rules of an election after much effort, time and money have already been spent on preparing its content and the means for it to operate efficiently and as clearly as possible from the perspective of voters, aka We the people. The question posed by Army chief counsel Joseph Welch to Senator McCarthy in 1954 is sadly applicable to these Judges, ““Have you no sense of decency, sir, at long last?” (although sirs and madam should be substituted for sir ).
I realize that the mmebers of USPS Board of Governors are apponted by the President and approved by the Senate, but is there a role for the USPS Board of Governors to reject “orders” from the White House or a state telling the USPS to whom and what they can mail? Could this Board act independently of the President, adhering to the Constitution unlike the Republcan Congress and Supremes? I believe there are 9 Governors, 4 appointed by Biden and 5 vacancies with nominations submitted by Trump but not yet approved by the Senate. Do these 4 have the power, or could they tell the President and any state legislature to go pound sand?
Purcell should apply when the pre-action status was legitimate as well as the post-action status, as with redistricting. The action in question was not legitimate before nor would it be after. Only Trumpers would think it was clever to time the action so that they could ask for Purcell to be applied.
Isn't there a sort of a reason-for Purcell argument against the government's position here: That changing voting by mail rules this close to the election - when in at least some states ballots are already being printed and perhaps even mailed - will surely lead to voter confusion about how and what they must/may do to vote?
Consistent? Twentieth Century rules no longer apply to a 21st Century SCOTUS … which coddles Trump and ignores inconvenient lower court decisions.
And please, no more Yiddish for the Roberts Court … except, perhaps, momser.
I looked at the link provided in discussing Federalism/Purcell Doctrine. Here's a little more from Justice Kavanaugh:
“This Court has repeatedly stated that federal courts ordinarily should not enjoin a State's election laws in the period close to an election… That principle—known as the Purcell principle—reflects a bedrock tenet of election law: When an election is close at hand, the rules of the road must be clear and settled. Late judicial tinkering with election laws can lead to disruption and to unanticipated and unfair consequences for candidates, political parties, and voters, among others...
"It is one thing for a State on its own to toy with its election laws close to a State's elections. But it is quite another thing for a federal court to swoop in and re-do a State's election laws in the period close to an election.”
P. 301
Merrill, Alabama Secretary of State, et al. v. Milligan et al (2022)
They have zero interest in being consistent. It's all 100% ad hoc.
You missed the point. The first decision was too early as you noted, but 5 nanoseconds later, it would have been too late. We live by the Rule of Alice in Wonderland.
A practical question. Can't states have a wider availability of drop off boxes for ballots, bypassing USPS?
Yes. But not only is that expensive because it needs to be secure (and likely need constant guard in this climate), it doesn't fix the problem of people unable to get to their own district in time to pick up or drop their ballots off.
I know it is an imperfect solution. I think to the extent feasible, offering that as a back up solution will help a fair number of voters. I agree it is a full-blown solution and none of this should happen this close to an election. With the way the Supreme Court has approached this issue, however, I take nothing for granted.