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<\/p>\nPresident Donald Trump\u2019s emergency appeal aimed at\u00a0limiting the use of mail ballots is poised to test a controversial, 20-year-old Supreme Court principle that was intended to avoid chaos before elections. The \u201cPurcell principle,\u201d rooted in a\u202f2006 Supreme Court decision,\u00a0warns federal courts against making last-minute changes to voting rules. But the principle has never before been weighed in a Supreme Court case involving a federal election policy like Trump\u2019s effort to give the US Postal Service and the Department of Homeland Security a hand\u00a0in screening state voter rolls\u00a0for potential non-citizen voters.<\/p>\n
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How the 6-3 conservative majority deals with its self-created and oft-criticized rule in the Trump case could have practical implications for how the court handles the flood of litigation that will inevitably crash onto its docket this fall, and ahead of the 2028 presidential election.<\/p>\n
\u201cHere we have potential federal agency action that could impact the way the 2026 election is run,\u201d said Chad Ennis, the vice president of the Honest Elections Project, a conservative group focused on voting policies. \u201cI think this is a novel set of facts and how SCOTUS would apply Purcell, if at all, is an open question.\u201d<\/p>\n
Signed in March, the president\u2019s executive order would require states to submit lists of eligible voters to the US Postal Service, which would be barred from sending ballots to anyone not on those lists. It would also require states to use tracking barcodes on ballot envelopes. And it would \u201cprioritize\u201d federal prosecution of state election officials who send or receive ballots to non-citizens or others ineligible to vote.<\/p>\n
The order also requires DHS to create lists of what it views as eligible, US citizen voters in each state.<\/p>\n
Federal courts in Boston blocked the order\u2019s implementation. Trump\u00a0filed an emergency appeal at the Supreme Court\u00a0last week. That appeal doesn\u2019t deal with the merits of the president\u2019s order, nor does it say anything about Purcell. But if the court sides with Trump on any portion of the case, it will likely set up a showdown over the doctrine later this year.<\/p>\n
A group of Democratic states challenging Trump will respond to the president\u2019s emergency appeal on Monday. The Supreme Court could then rule later this month.<\/p>\n
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<\/picture><\/div>\nEvan Vucci\/Reuters<\/p><\/div>\n<\/div>\n<\/div>\n<\/div>\n
Because of the Purcell doctrine, timing almost always lurks as a central issue in federal challenges to voting rules.<\/p>\n
In December, the\u00a0Supreme Court allowed Texas\u00a0to use a congressional map that boosted the GOP\u2019s chances of keeping control of the House, partly because the primary election was set for March.<\/p>\n
In 2024, the\u00a0court cited Purcell\u00a0when it allowed Louisiana to use a congressional map that benefited Democrats because the state argued that candidate filing deadlines were fast approaching.<\/p>\n
Two years earlier, roughly a month out from Alabama\u2019s primary election, the court appeared to rely on Purcell to keep a congressional map drawn by the\u00a0state\u2019s Republicans in place, despite a lower court decision that the map diluted the political power of Black voters. The court\u2019s brief order didn\u2019t cite Purcell, but Justice Brett Kavanaugh wrote a lengthy concurrence defending its application in that case.<\/p>\n
\u201cThis court has repeatedly stated that federal courts ordinarily should not enjoin a state\u2019s election laws in the period close to an election,\u201d\u00a0Kavanaugh wrote. \u201cThat principle \u2014 known as the Purcell principle \u2014 reflects a bedrock tenet of election law: When an election is close at hand, the rules of the road must be clear and settled.\u201d<\/p>\n
Critics, however, note that a majority of the court was fine allowing\u00a0Louisiana to revert\u00a0immediately to a Republican-friendly congressional map in May even though absentee voting had already started for the primary under a different map that included a second Black-majority district. Justice Ketanji Brown Jackson, a liberal,\u00a0questioned at the time\u00a0how her colleagues could square the hurry-up approach in that case with its reticence to engage at the last minute in others.<\/p>\n
Jackson noted that the emergency Louisiana appeal came \u201cin the midst of an ongoing statewide election.\u201d<\/p>\n
\u201cThe court unshackles itself from both constraints today and dives into the fray,\u201d she wrote. \u201cAnd just like that, those principles give way to power.\u201d<\/p>\n
Her dissent drew a sharp rebuke from Justice Samuel Alito, a conservative, who noted that the map Jackson would have left in place for this year\u2019s election had been ruled unconstitutional by the Supreme Court days earlier. The state had also\u00a0suspended voting in the House contests\u00a0after the Supreme Court\u2019s\u00a0ruling in Louisiana v. Callais.<\/p>\n
Purcell is not currently at issue in the Trump appeal over the mail ballots, but the states are likely to ask the court to keep the doctrine in mind to head off a catch-22 scenario. That\u2019s because Trump\u2019s central argument is that the states and groups who are challenging his order sued too soon. If the Supreme Court agrees with Trump, then the states will have to wait to revive their litigation. And that will necessarily push the cases closer to the November election, allowing the administration to raise Purcell to bar courts from weighing in.<\/p>\n
Trump\u2019s Justice Department has argued that the lawsuit against the administration isn\u2019t \u201cripe\u201d because the government hasn\u2019t taken any steps yet to enforce its order.<\/p>\n
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<\/picture><\/div>\n\u201cThe executive order is an intra-branch directive from the president to his subordinates \u2014 which, of its own force, does not change anything at all about elections in any state,\u201d US Solicitor General D. John Sauer told the justices in the administration\u2019s appeal last week.<\/p>\n
At the same time, the administration hasn\u2019t ruled out trying to invoke Purcell at a later stage in the case. At a May hearing in a separate case dealing with the same executive order, US District Judge Carl Nichols, a Trump nominee, asked if the administration would try to raise that argument. The administration\u2019s attorney, Stephen Pezzi, said he didn\u2019t think it was likely.<\/p>\n
But he also didn\u2019t rule it out.<\/p>\n
\u201cI, of course, can\u2019t and won\u2019t take an argument off the table about what the world will look like in August from the lectern today,\u201d Pezzi said. \u201cBut it\u2019s far from clear to me that that sort of consideration would apply here.\u201d<\/p>\n
Because the federal government has historically had an infinitesimal role in running elections, the last-minute voting cases that race up to the Supreme Court have dealt with state policies.<\/p>\n
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<\/picture><\/div>\nDavid Paul Morris\/Bloomberg\/Getty Images<\/p><\/div>\n<\/div>\n<\/div>\n<\/div>\n
Sophia Lin Lakin, director of the Voting Rights Project at the American Civil Liberties Union, described the Trump administration\u2019s executive order on mail ballots as unprecedented. And that means the case may shed light on the court\u2019s approach to Purcell.<\/p>\n
\u201cMany of these decisions on Purcell have been handled on the shadow docket in a way that hasn\u2019t necessarily garnered clear support of five justices, so we\u2019ve been at times piecing together\u202fdifferent ideas along the way to determine how it might play out,\u201d said Lakin, whose group is challenging Trump\u2019s executive order in a separate case pending in a federal court in Massachusetts.<\/p>\n
While Trump\u2019s emergency appeal raises questions the court hasn\u2019t directly addressed, Lakin said she believes there are clues that a majority of justices might vote to intervene to halt the administration\u2019s order, even with Purcell on their minds. Increasingly, the court\u2019s conservatives have framed the principle as a check on the power of federal courts to interfere in elections that are run by states.<\/p>\n
In that sense, the doctrine is partly about ceding control to run elections to the states \u2014 not the federal courts, nor federal agencies.<\/p>\n
\u201cThis mail voting executive order sits on the wrong side of the line,\u201d Lakin said. \u201cIt\u2019s a federal actor imposing late-breaking changes on state election systems over the objections of the states that run them.\u201d<\/p>\n
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