Is it possible to trace certain themes in the court’s election orders? Sure.
The first is that Republicans tend to win. Another, as Judge Brett M. Kavanaugh wrote in a concurring opinion this month, speaking only for himself, is that “Federal courts should not normally change state electoral rules as elections approach. elections.
He cited the 2006 decision that came to justify this proposition, Purcell v. Gonzalez. Or perhaps “ruling” is too generous a word, since Purcell himself was an unsigned, cryptic, provisional and equivocal product of the Court’s parallel role. This has given rise to a “shadow doctrine,” Professor Stephanopoulos wrote last month in an essay on Take Care, a legal blog.
The Purcell case involved an Arizona voter identification law. A trial judge refused to block it, but, about a month before the 2006 general election, the United States Court of Appeals for the Ninth Circuit issued an injunction prohibiting state officials from apply.
The Supreme Court, ironically in light of the direction of its own practices, criticized the Ninth Circuit for offering “no explanation or justification for its order,” and left the election to take place under the law on the identification of the voters in force.
The passage of the Purcell decision which was reduced to the shadow doctrine of a near-categorical ban on last-minute adjustments to state election procedures by federal courts lasted three sentences. It was not at all clear, but it suggested that judges should balance competing interests and exercise judgment.
“Faced with a demand to ban the operation of voter identification procedures just a few weeks before an election, the Court of Appeal had to weigh, in addition to the prejudices linked to the issuance or non-issuance of ‘an injunction, specific electoral considerations and own institutional procedures,’ said the unsigned opinion. “Court orders affecting elections, especially contradictory orders, can themselves confuse voters and therefore encourage people to stay away from the ballot box. As elections approach, this risk will increase. “
In an influential 2016 law journal article, Richard L. Hasen, a law professor at the University of California, Irvine, coined a phrase to describe how the passage was caricatured, calling it “the Purcell Principle “.