Purcell v. Gonzalez and Why Judges Should Not Rewrite Election Rules Late

It is October 2006 in Arizona. The ballots have been designed, printed and mailed. Poll workers have been trained on a particular set of identification rules. Voters have read the notices, and the county has told the public what to bring. Then, with a few weeks to go and without a word of explanation, a panel of federal appeals judges issues a four-sentence order that throws the whole arrangement into doubt. Nobody knows which rule applies. The people who were about to vote, and the people who were about to run the election, are now left to guess.

That is the situation the Supreme Court confronted in Purcell v. Gonzalez, and the short opinion it wrote has shaped every election cycle since. Let me tell you the story, because it is about more than one state and more than one law. It is about who gets to write the rules of an election, when they get to change them, and what happens to a free people when the referees rewrite the rulebook during the game. Nobody wants the umpire to announce in the ninth inning that the bases are now five.

The facts, Arizona's Proposition 200

In November 2004, Arizona voters approved a ballot initiative known as Proposition 200. It did two things. It required people to show proof of citizenship when they registered to vote, and it required voters to present identification when they voted in person. Voters at the polls had to show one of a list of acceptable forms of identification.

Opponents sued. They argued that the identification requirements were unlawful and asked a federal court to block them before the 2006 election. On September 11, 2006, the federal district court denied that request without issuing findings of fact or conclusions of law; it issued them on October 12.

The opponents appealed to the United States Court of Appeals for the Ninth Circuit. On October 5, 2006, a motions panel of that court issued an order enjoining the enforcement of Proposition 200 while the appeal went forward. It did so without issuing an opinion that explained why. Arizona's election was scheduled for November 7. The election was less than five weeks away, and the state's officials, who had been preparing to apply the law, were suddenly told they could not.

Arizona election officials and defenders of the law asked the Supreme Court for emergency relief. On October 20, 2006, the Court acted.

The question and the holding

The question in front of the Court was narrow. It was not whether Proposition 200 was constitutional. That would be decided, in time, on a full record. The question was whether the court of appeals had been right to block the law, at that moment, with an election weeks away and without an explanation.

The Court answered in a short unsigned opinion, which means a per curiam, an opinion issued in the name of the Court as a whole. It vacated the Ninth Circuit's order and let Arizona's rules stand for the November election. In doing so it was careful to say what it was not deciding. It took no position on the merits of the constitutional claims, and it said so in terms.

What it held instead was procedural, and it is the sentence that has been quoted in election cases ever since. The Court wrote: "Court orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase."

Read it again, and notice the logic. The Court is not saying that the law is good. It is saying that a court order can do harm of its own. Confusion about the rules makes voters stay home, and the closer the election gets, the less time there is to clear up the confusion. A judge who acts late, even in the name of protecting voters, can end up hurting them.

What the Court reasoned

The Court gave several reasons, and each rewards a careful reading.

1. The court of appeals gave no reasons. The Ninth Circuit had acted without an opinion. The Supreme Court observed that an appeals court must defer to the district court's discretion, and found no indication that the Ninth Circuit had done so.
2. Voter confusion cuts against a last-minute change. The Court stressed that conflicting court orders can themselves confuse voters and keep them from the polls.
3. The election was imminent. With the election only weeks away, the practical cost of altering the rules was highest, and the time to fix any mistake was shortest.
4. The merits were left for another day. The Court expressed no opinion on the correct disposition of the appeals or on the ultimate resolution of the cases, and it let the election proceed under Arizona's rules.

The decision is a model of judicial modesty: it fixes a procedural problem and leaves the rest.

The principle that grew from it

Lawyers now call the idea the Purcell principle. In its simplest form, it says that federal courts should ordinarily not change election rules, by injunction or otherwise, when an election is close. Exactly how close is "close" has never been defined by a formula, and the Court has not said. What it has said, in various emergency orders over the years, is that the closer the election, the stronger the reason to leave things as they are.

Several later cases show the principle at work. In April 2020, in a case from Wisconsin brought by the Republican National Committee, the Supreme Court, in a short unsigned order, stayed a lower court's order to the extent it required Wisconsin to count absentee ballots mailed and postmarked after Election Day, noting that the challengers had not themselves asked for that relief.

In 2022, in Merrill v. Milligan, the Court stayed a lower court's order requiring Alabama to use a new congressional map. Justice Kavanaugh, joined by Justice Alito, wrote a concurrence explaining that when an election is close at hand, the rules of the road must be clear and settled. He also described conditions a plaintiff would have to meet to overcome the principle.

That last point matters, and it is a point conservatives sometimes forget. The principle is a rule about timing, not about the merits. A plaintiff who believes a rule is unlawful is expected to sue early, so that the courts can decide the question before the election. A challenge brought on the eve of an election has to explain the delay.

The Elections Clause and the right institution

Why is Purcell right? Start where constitutionalism always starts, with the text. Article I, Section 4, Clause 1 of the Constitution provides: "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators."

Who does the Constitution name to make election rules? The state legislature, and Congress. It does not name federal district judges, and it does not name the three judges who happen to draw a panel in October. The rules of elections are, in the first instance, a legislative matter, to be written by officials accountable to the voters who live under them. A federal judge who rewrites a state's election rules a few weeks before the vote has exercised a power that the Constitution assigned elsewhere.

I should add a note of candor. The Elections Clause does not make state legislatures immune from every check. In Moore v. Harper in 2023, the Supreme Court held that the clause does not insulate a state legislature from the ordinary limits that a state's own constitution and courts place on its lawmaking. So the claim is not that courts have no role in election law. Courts must decide whether a rule violates the Constitution or a federal statute, and they should, in the ordinary course. The claim is narrower and stronger: a court should not do that work late, in a way that upends rules the voters and officials have already relied upon.

The Constitution's design depends on the consent of the governed, expressed through an orderly process. A process that can be rewritten by order of a judge in the final weeks does not look like consent. It looks like caprice.

The strongest objection, and the answer

Here the other side deserves a fair statement, and it has real force. The critics of the Purcell principle make this argument: "The principle can freeze an unlawful rule in place. If a state adopts a law that violates the Constitution, and the challenge arrives in the weeks before an election, Purcell tells the court to leave the unlawful law in force, and voters are subject to a rule that a court would have struck down if it had had a few more months. The people who are harmed have no remedy. Worse, the principle is applied unevenly. Judges invoke it when it suits them and ignore it when it does not, and nobody can say how close an election has to be before the principle applies."

I take that seriously, and I think part of it is right. The principle has been invoked inconsistently, and its boundaries are fuzzy. It is a fair criticism that a standard without a definition invites results that track the judge's preferences. And I agree that a rule that locks in a plainly unconstitutional law is a bad outcome.

But the answer, in four points, is firm.

1. The principle is a presumption, not an absolute. It says that late changes need a strong reason, not that they are never allowed. A court that finds a clear and serious violation, and a plaintiff who acted promptly, can still grant relief, and Justice Kavanaugh's concurrence in Merrill described conditions under which a plaintiff can overcome the principle.
2. The harm of a late order is real and falls on everyone. The harm of leaving a questionable rule for one more election, with a full ruling to follow, is usually smaller than the harm of changing the rules in the middle of the voting. A rule enforced for one election and later struck down can be corrected going forward. A mess of conflicting instructions on Election Day cannot be undone.
3. The cure for the inconsistency is to sharpen the standard, not discard it. Courts should state a clear rule for what counts as close, and they should apply it to every side. A principle that applies the same way to a Republican state and a Democratic one earns its legitimacy.
4. The deeper cure is early litigation. Everybody who challenges a rule should file early, and everybody who writes a rule should write it early. A state legislature that passes an election law a few weeks before a vote has invited the very problem it complains about. The Constitution gives legislatures the power to set the rules, and it assumes they will do it in time.

What came after Purcell on Arizona's law

The story of Proposition 200 did not end in 2006. The proof-of-citizenship requirement for registration was later tested in a different case, Arizona v. Inter Tribal Council of Arizona, in 2013, where the Supreme Court held that the National Voter Registration Act's requirement that states accept and use the federal registration form preempted Arizona's demand for additional documents on that form. Because Congress had used its power to regulate the manner of federal registration, the state's extra requirement gave way. Justice Scalia, writing for the Court, also noted that Arizona could seek to include a proof-of-citizenship requirement on the federal form through the proper federal channel.

The sequence is instructive. In 2006, a court order that came late was set aside. In 2013, the merits were decided in the ordinary way, on a full record, after full argument. That is how the system is supposed to work. The deliberate process, not the emergency order, gave the lasting answer.

What this means for a citizen

Three practical lessons follow.

First, if you care about an election rule, the time to act is long before an election. Read the rules your state legislature passed, find out when they take effect, and speak up in the legislative session, not in October.

Second, be wary of anyone who promises that a court will fix a problem at the last minute. It probably will not, and Purcell is the reason. A strategy that depends on an emergency order is a strategy that has already lost the argument about timing. It is retirement planning built on a lottery ticket.

Third, remember that the voters are the whole point. A rule that confuses a voter who has done everything right, who read the notice and brought the right document, is a rule that hurts the person the system exists to serve. That is why the Court spoke of confusion and of the incentive to stay home. Participation is fragile, and the people who protect it most are those who keep the rules steady.

For more on how the Constitution divides election authority, see The Elections Clause Lets States Run Elections and Lets Congress Step In. The case for the underlying Arizona-style rules is in The Case for Photo ID at the Polls, Answered Point by Point Against Its Critics, and the parallel argument for keeping federal judges out of another kind of election dispute is in Why Rucho Was Right to Keep Federal Judges Out of Partisan Map Fights. The Court's wider role is explained in The Exceptions Clause Gives Congress a Power Over the Courts It Rarely Uses, and you can follow the justices' work on the courts page.

The case in brief

1. In Purcell v. Gonzalez (2006), the Supreme Court vacated a Ninth Circuit order that had blocked Arizona's Proposition 200 voter ID rules weeks before the election, without deciding the merits.
2. The Court warned that court orders affecting elections can themselves cause voter confusion and discourage voting, and that the risk grows as an election draws closer.
3. The "Purcell principle" has since guided judges in emergency applications, including cases from Wisconsin in 2020 and Alabama in 2022.
4. Critics say it can freeze unlawful rules in place and is applied inconsistently, and the answer is to treat it as a presumption with a clear standard and to litigate early.
5. The Elections Clause assigns election rules to state legislatures, subject to Congress, so late judicial rewriting disturbs both the Constitution's design and the voters' trust.

What you can do: look up when your state's next election rules take effect, and write to your state legislator during the session, not in the weeks before the vote.