Why US Courts Are Allowing Voters in 4 States to Use Disallowed Congressional Cards


When midterm elections begin next month, voters in several Republican-controlled states will vote in congressional precincts whose boundaries have been rejected by the courts.

In Alabama, Georgia, Louisiana and Ohio, congressional maps were drawn by Republican lawmakers following the 2020 census. Judges later ruled that the maps were drawn illegally or likely to be proven illegal at trial.

But the U.S. Supreme Court and other federal courts following its precedent have allowed the rejected cards to be used for this election, rejecting proposals to make them fairer.

Their reason for being? A little-known legal concept that judges should refrain from changing voting rules in the run-up to an election, as it can lead to chaos and confusion and drive voters away from the polls.

Known as the “Purcell Principle,” the concept takes its name from a 2006 Supreme Court case titled Purcell v. González. The case involved a legal challenge to Arizona’s voter ID requirements. It was a midterm year and the Supreme Court dismissed the challenge.

FILE – Then-Supreme Court nominee Brett Kavanaugh testifies before the Senate Judiciary Committee on Capitol Hill in Washington, September 27, 2018.

“Fundamental principle”

In the 16 years since the Arizona ruling, the “Purcell Principle” has become what Associate Supreme Court Justice Brett Kavanaugh has called a “fundamental principle of election law.”

“When an election is near, the rules of the road must be clear and established,” Kavanaugh wrote in February, explaining his decision to allow the Republican-backed Alabama Congressional map to go into effect. , even though it had been rejected by a group of three “Delayed judicial tinkering of electoral laws can lead to unintended and unfair disruption and consequences for candidates, political parties and voters, among others.”

That means judges should be wary of orders that change voting rules in the run up to an election, and they did. In 2020, the Supreme Court repeatedly blocked amendments aimed at making it easier for voters to vote during the deadly COVID-19 pandemic.

Critics say this amounts to putting election administration before safeguarding the right to vote.

“I think the balance they’ve chosen is unbalanced,” said Dan Vicuna, national redistricting manager for watchdog Common Cause.

Rick Hasen, a University of California Los Angeles election law expert who coined the term “Purcell’s principle” in 2016, argued that the Supreme Court should “curb” the doctrine.

FILE - Khadidah Stone stands on the dividing line between her former Alabama Congressional District 7, to her right with River City Church, and her new district, District 2, to her left, in downtown Montgomery , Alabama, Sept. 20, 2022. The line divides Montgomery between two congressional districts.

FILE – Khadidah Stone stands on the dividing line between her former Alabama Congressional District 7, to her right with River City Church, and her new district, District 2, to her left, in downtown Montgomery , Alabama, Sept. 20, 2022. The line divides Montgomery between two congressional districts.

The Republicans maintained their cards.

Hans von Spakovsky, a former county election official now with the conservative Heritage Foundation, said Purcell’s Principle is a “good rule” with an important purpose.

“Anyone who has a problem with [an election] the law or regulation has ample time before an election to take legal action,” said von Spakovsky, director of the Heritage Foundation’s Election Law Reform Initiative.

Neighborhoods redesigned every decade

The disputed maps of Congress in the four states are considered “gerrymandered,” a portmanteau whose origins date back to early 19th-century American politics.

Every 10 years, following a constitutionally mandated census, US states redraw their congressional and state legislative maps to reflect changes in their electorate.

Gerrymandering occurs when electoral district maps are redrawn for political purposes, such as grouping opposition party voters in one constituency to reduce their influence in others.

FILE - Carroll County Board of Elections Clerk Sarah Dyck, foreground, stamps incoming absentee ballot requests as Elections Clerk Deloris Kean counts more requests at Board of Elections offices in Carrollton, Ohio , September 26, 2022.

FILE – Carroll County Board of Elections Clerk Sarah Dyck, foreground, stamps incoming absentee ballot requests as Elections Clerk Deloris Kean counts more requests at Board of Elections offices in Carrollton, Ohio , September 26, 2022.

The practice is legal in most states, and both Democrats and Republicans engage in it. But when a map is drawn blatantly to favor one group over another, it can violate state and federal laws.

The Voting Rights Act 1965 prohibits racial discrimination in voting. Under the law, voters can seek legal relief if they believe a voting practice or procedure such as a new political card “abbreviates” their right to vote.

Under the Voting Rights Act, challengers can also sue for “vote dilution”. Vote dilution occurs when minority voters cannot elect the candidate of their choice due to gerrymandering. It was part of the claim as part of the legal challenge against Congressional maps in Alabama, Georgia and Louisiana.

Old procedure

Prior to Purcell, aggrieved voters could sue and courts would not dismiss the challenge simply because an election was near.

But that changed with Purcell, according to David Gans, director of the human rights, civil rights and citizenship program at the Constitutional Accountability Center.

“Purcell has made it incredibly difficult for the courts to provide relief when state governments violate the right to vote, when they put in place discriminatory maps that dilute voting for communities of color,” Gans said.

Consider what happened in Georgia.

In December, civil rights groups filed lawsuits against the state’s new political redistricting maps that appear designed to give Republicans an extra seat in the House, even as the state’s electorate has become increasingly democratic.

FILE - Carol Discher, a volunteer for the re-election campaign for Rep. Marcy Kaptur, D-Ohio, stacks street signs in Toledo, Ohio September 17, 2022.

FILE – Carol Discher, a volunteer for the re-election campaign for Rep. Marcy Kaptur, D-Ohio, stacks street signs in Toledo, Ohio September 17, 2022.

Then in March, less than two months from the state’s primary election, U.S. District Judge Steve Jones, citing Purcell’s principle, ruled that disputed cards could be used even if he found they included limits that violated the Voting Rights Act.

“Changes to the redistricting map at this point in the 2022 election calendar are likely to significantly disrupt the electoral process,” Jones wrote.

In Alabama and Louisiana, federal courts found redistricting maps of the two Southern states violated voting rights law, but were struck down by the Supreme Court.

High court decisions

The Supreme Court, dominated by six conservative justices appointed by Republican presidents, has applied the Purcell Doctrine “in a way that’s primarily favorable to Republicans,” Vicuna said, but that hasn’t always been the case.

In March, for example, the High Court refused to overturn a map drawn by the North Carolina Supreme Court despite objections from Republican lawmakers who wanted to use their own map.

Additionally, the High Court rejected Republican challenges to redistricting maps drawn by Pennsylvania and Wisconsin, but not based on Purcell.

Election law experts say that while the likelihood of voter confusion can be a strong argument against last-minute changes to voting procedures, it shouldn’t be the only factor.

“One of the reasons the court went wrong was that it didn’t look at the kind of traditional factors that apply when there’s a request for emergency assistance,” Gans said. “Purcell has essentially replaced this kind of more careful analysis of the facts with this generalized hostility to the protection of voting rights.”

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