By Joseph Ax and John Kruzel
WASHINGTON, May 20 (Reuters) – The conservative-majority U.S. Supreme Court last December permitted Texas to move ahead with a new voting map beneficial to Republicans, as the justices faulted a lower court for issuing an order blocking it “on the eve of an election.”
At the time, the Texas party primary elections were four months away and the general election was 11 months off. The top U.S. judicial body’s action in the case followed a legal concept known as the Purcell principle it established two decades ago that courts should strive to avoid changing voting rules too close to an election due to the risk of voter confusion.
But the court in separate decisions this month cleared the way for Louisiana and Alabama to enact pro-Republican maps reconfiguring their U.S. House of Representatives districts in those states, just days before in-person voting was set to begin in primaries and after thousands of mail-in ballots already had been cast.
The court’s seemingly inconsistent approach to the Purcell principle in those three cases resulted each time in a decision favorable to Republicans, as President Donald Trump’s party fights to retain control of Congress in November’s midterm elections.
The outcomes have prompted some legal experts to raise questions about the motivations of the conservative justices who hold a 6-3 majority on the court.
“I’ll just say that the Purcell principle is not really a principle anymore, at least if we think ‘principle’ means it is going to be consistently applied,” University of Kentucky law professor Joshua Douglas said.
“Cynics would say this is politics all the way down,” Douglas added, “and there’s evidence of that given that the court seems to be letting Republican-controlled states implement new maps when previously it had stopped lower court rulings against some of those maps.”
RESTORING STATE LEGISLATIVE ACTION
Not all experts see inconsistency in the court’s actions.
University of Notre Dame law professor Derek Muller said the recent decisions shared a similar idea: restoring state legislative action that had been blocked by a lower court. The cases, Muller acknowledged, may inject uncertainty into elections due to their timing.
“But it’s not because the court has changed the rules,” Muller said. “It’s because the court has stepped back and allowed the legislature to act.”
The legal principle arises from a 2006 case called Purcell v. Gonzalez in which the Supreme Court lifted a judicial block on an Arizona voter-identification law that a lower court had imposed 33 days before that year’s midterm elections.
But some legal experts said what began as a straightforward principle of judicial restraint in election-related cases has been turned on its head by the court’s conservatives to aid Republicans. These experts said the court’s recent actions have fueled the impression that it is driven primarily by political outcomes rather than the law, a perception that has rankled conservative Chief Justice John Roberts.
In a process called redistricting, the boundaries of legislative districts across the United States are reconfigured to reflect population changes as measured by the national U.S. census every 10 years. Redistricting traditionally has been carried out by state legislatures at the start of each new decade.
In the unusual mid-decade redistricting fight now unfolding, Republicans have built a clear advantage, bolstered by the recent Supreme Court rulings.
At Trump’s urging, Republican-governed Texas redrew its electoral map last year in a bid to flip five Democratic-held U.S. House seats. Democratic-led California then reconfigured its map to target five Republican-held House seats. Multiple other states subsequently joined the fray.
Democrats suffered a blow when the Supreme Court last month gutted a key provision of the 1965 Voting Rights Act, opening the door for Republican-led Southern states to dismantle Democratic-held majority-Black and majority-Latino districts ahead of the November elections. Black and Latino voters tend to support Democratic candidates.
In its 6-3 ruling – with the conservative justices in the majority and the liberal justices dissenting – the Supreme Court struck down one of Louisiana’s two majority-Black House districts. The decision landed on April 29, three days before the scheduled start of early voting for Louisiana’s May 16 primary election.
‘THIS FRENZY’
UCLA law professor Richard Hasen, who coined the term Purcell principle 10 years ago, said the timing of the Louisiana ruling suggests that the Supreme Court is not overly worried about avoiding electoral disruption under this legal concept.
“The court issued the opinion as people were voting, knowing it was going to lead to this frenzy,” Hasen said. “If the court was actually concerned about upsetting election rules on the eve of an election, it would either have issued (it) earlier or later.”
Four Republican-led Southern states – Louisiana, Tennessee, Alabama and South Carolina – responded by rushing to dismantle several House districts with sizable Black populations in time for the midterms.
The Supreme Court’s handling of Alabama’s bid to reconfigure its voting maps may be the starkest example of its uneven approach.
In January 2022, a federal court blocked Alabama from using a Republican-drawn map that the court decided unlawfully deprived Black voters of an additional House district in which they comprise a majority or close to it, likely violating the Voting Rights Act.
The next month, however, the Supreme Court ruled that this disputed voting map, advantageous to Republicans, needed to remain in place to avoid any disruption to the primary election looming more than three months later.
Justice Brett Kavanaugh, writing a concurring opinion joined by fellow conservative Justice Samuel Alito, said the election was too near to allow changing of maps.
“When an election is close at hand,” Kavanaugh wrote, “the rules of the road must be clear and settled.”
Four years later, the court’s conservatives seem to have paid little heed to those concerns. On May 11, eight days before Alabama’s scheduled primaries, they cleared the way for the state to return to that same map, lifting a judicial order that had blocked its use. The Supreme Court provided no reasoning for its action.
Republican Governor Kay Ivey immediately postponed the scheduled primaries for four House districts whose boundaries change under that map, effectively cancelling any votes already cast in those contests.
Law professor Justin Levitt of Loyola Marymount University said the conservative justices appear to have replaced the Purcell principle’s broad command for judicial restraint with a new doctrine: “When we like what’s happening, we rule.”
“I am not quick to accuse the court of indulging purely partisan leanings, but man, oh man, they’re making it real difficult to try and figure out what they’re doing, if not that,” said Levitt, who served as a White House adviser on democracy and voting rights under Democratic former President Joe Biden.
Some of the murkiness surrounding the court’s Purcell principle jurisprudence may stem from the fact that the related decisions have been issued under the court’s emergency docket, or “shadow docket.” In such cases, the court acts on emergency requests, often without explaining its legal reasoning.
“Part of the problem with the Purcell principle is that it’s never been fully explained in a majority opinion,” Hasen said. “There’s no hard-and-fast rule.”
(Reporting by Joseph Ax in New York and John Kruzel in Washington; Editing by Will Dunham)
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