Alabama ran a primary yesterday. It supposedly ran one in May — and many people voted in it! — but it never counted. If that sounds confusing… it was! So much so that turnout bottomed out around 5 percent. To put that in context, almost 23 percent turned out to vote in the May primary that state Republicans would ultimately throw out. This time around, most voters seemed unaware of what the hell was going on. Did they have to vote again? Could they vote again? Would they be accused of fraud if they tried to vote again? All valid questions!
The state had to head back to the polls after state Republicans received the greenlight from the Supreme Court to establish Jim Crow-inspired congressional district maps. When the Supreme Court functionally overturned the Voting Rights Act, it performed the usual song-and-dance about how it wasn’t really about race, but a dispassionate evaluation of the record.
White Alabama Republicans displayed slightly less restraint, holding an emergency session during a tornado evacuation as the statehouse flooded because they did not want to wait to disenfranchise Black voters.
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Federal courts previously rejected the maps in question as the product of intentional racial discrimination. Even Chief Justice John Roberts — whose Shelby County opinion began the disintegration of voting protections for Black Americans — couldn’t bring himself to bless these maps a few years ago.
But that was before Democratic state legislatures decided they could redraw their maps too. Confronted with an uncharacteristically tough response, Republicans found themselves running against an upper bound on their capacity to redistrict because the Voting Rights Act blocked their ability to wipe away all representation. Faced with a potential Midterm wipeout, the Republican justices united around the idea that it’s high time to bring back the segregationist congressional maps.
It began with Louisiana v. Callais gutting Section 2 in April. Then the Supreme Court used its shadow docket to vacate the injunction blocking Alabama’s 2023 map — without explanation, obviously. Suddenly the state was holding an August primary to decide candidates that everyone already voted on in May.
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Isn’t there some sort of “principle” intended for the sole purpose of preventing this kind of confusion?
Silly readers. If the Purcell principle ensures that illegal maps cannot be struck down months before an election, how could it countenance changing maps after the election already happened? To this, Brett Kavanaugh declared hold my beer.
In Merrill v. Milligan, the 2022 version of the Alabama map fight, Kavanaugh explained:
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.
From Brett’s perspective, the state legislature changed the rules, not the courts. Yes, the state legislature could only change the rules with the judicial intervention of Kavanaugh and the rest of the Republican justices, but maybe the state government asking for this exact relief wouldn’t go ahead and act on it!
This reasoning makes sense to the disingenuous and victims of catastrophic head injuries, but no one else buys it. It’s a carveout that swallows the rule completely. State legislatures are always the actor initiating an election law change, meaning Kavanaugh’s caveat shields all functional responses to constitutional violations as long as they wait “late” enough. Election law expert Marc Elias explained that the Purcell principle isn’t a principle at all so much as a prop in the farce the justices put on to slap a veneer of reasonability on this doctrine that election law changes that increase racial representation are always too late and those that disenfranchise Black voters are never too early:
In its original form, it was aimed at preventing court orders that “result in voter confusion and consequent incentive to remain away from the polls.” But it rapidly expanded into something far broader: a tool to block any court order that might protect voting rights near an election, while allowing anti-voting measures to proceed unchallenged.
Kavanaugh’s attempt to carve out a state legislature exception piggybacks off another SCOTUS-approved internal inconsistency. As Elias notes, back in 2020, the Court limited the Purcell restriction to lower federal courts, keeping for itself the power to change voting laws on its own whim. Avoiding voter confusion is an impact that deeply implicates America’s democratic structure and must be avoided at all costs. Unless the Supreme Court does it. “If last-minute changes to election rules harm voters and election officials,” Elias wrote. “[T]he injury is no lesser when the order comes from the Supreme Court itself.”
The harms Alabama described in 2022 as intolerable, unbearable, a “prescription for chaos” requiring emergency relief from the highest court in the country — became a policy worth doubling-down upon once it had an opportunity to dilute minority voting.
Willie Dixon, waiting in the fellowship hall of a Baptist church in Lowndes County, put the whole doctrine in seven words: “Create enough chaos, and people will give up and go home.”
You might think that’s the bug that Purcell is designed to fix, but for this Supreme Court majority, it’s a feature.
Earlier: John Roberts Thinks Alabama Maps He Decided Were Too Racist Magically Aren’t So Racist Anymore!
Supreme Court Republicans Refuse To Explain Why Alabama Can Now Use Racist Election Maps (But PLEASE Don’t Think They’re Just Being Political About It)
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news.