Courtly Observations is a recurring series by Erwin Chemerinsky that focuses on what the Supreme Court’s decisions will mean for the law, for lawyers and lower courts, and for people’s lives.
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Much rightly has been written criticizing the Supreme Court’s decision in Louisiana v. Callais, which effectively nullified Section 2 of the Voting Rights Act. But one point that has not received sufficient attention is the decision’s blatant inconsistency with the principle that federal courts should not alter the conduct of elections soon before they are to occur. Often called the Purcell principle, from its origin in the 2006 case of Purcell v. Gonzalez, this principle has frequently been invoked by conservative justices. But in Louisiana v. Callais, the conservative justices unleashed massive changes on the eve, and even in the midst, of elections, which will alter their results in many states and perhaps the composition of Congress.
Purcell and its application
Purcell was a Supreme Court per curiam order, handed down without briefing or oral argument. In Purcell, the federal court of appeals had found that an Arizona law requiring photo identification for voting violated the Constitution and stopped the law from going into effect. But the Supreme Court stayed the court of appeals decision and said, “Given the imminence of the election and the inadequate time to resolve the factual disputes, our action today shall of necessity allow the election to proceed without an injunction suspending the voter identification rules.”
The constitutional basis for this never has been explained by the Supreme Court. Why should unconstitutional or illegal restrictions on voting be allowed just because the challenge is being heard soon before the election? It also never has been explained whether Purcell is a bright line rule that federal courts cannot get involved too soon before an election or whether it is a factor in a court’s analysis of whether injunctive relief is appropriate. Nor has the court been clear about what is “too soon” before an election – although some Supreme Court cases indicate that federal courts should not be involved even months before.
Nonetheless, the court has invoked Purcell v. Gonzalez many times as establishing that federal courts cannot enjoin state and local election laws soon before an election even when the judges conclude that the Constitution is being violated. In the 2020 case of Republican National Committee v. Democratic National Committee, a federal district court in Wisconsin issued an order five days before the scheduled election that absentee ballots mailed and postmarked after election day, April 7, still would be counted so long as they were received by April 13. The judge issued this order because of the dramatic increase in absentee ballots in April 2020 at the height of concern over the COVID-19 pandemic. The federal judge’s order made great sense; otherwise, many ballots would not be received in time to be counted through absolutely no fault of the voter.
The Supreme Court, though, overturned this order and, in a 5-4 per curiam ruling split along ideological lines, said that extending the date by which ballots may be cast by voters for an additional six days after the scheduled election day “fundamentally alters the nature of the election.” The court invoked Purcell for the proposition that it “has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election.”
The court significantly extended the Purcell principle in the 2022 case of Merrill v. Milligan. After the 2020 census, the Alabama legislature redrew its congressional districts. Although Black individuals constitute 27 percent of the population of Alabama, the legislature drew the districts so that Black voters were a majority in only one congressional district. Most Black voters were packed into that one district and the rest were spread among the remaining six districts.
The federal district court in Alabama heard seven days of testimony, read over 1,000 pages of briefing, and concluded that the map drawn by the Alabama legislature for congressional seats was discriminatory and likely violated the Voting Rights Act. Nevertheless, the Supreme Court, in a 5-4 ruling, with Chief Justice John Roberts joining the three liberal justices in dissent, stayed the lower court ruling and allowed the discriminatory Alabama map to be used in the 2022 elections.
Strikingly, none of the nine justices, including those in the majority, disagreed with the lower court’s conclusion about the discriminatory effect of the Alabama legislature’s districting. (In fact, in June 2023, in Allen v. Milligan, the Supreme Court ultimately found that the lower court was right and that Alabama had violated the Voting Rights Act.) Nonetheless, the court allowed the discriminatory map to be used in Alabama for the 2022 primary and general elections.
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None of the five conservative justices pointed to any error of law or fact by the three-judge district court. Nor did any of the justices claim that the lower court misapplied the law in finding a violation of the Voting Rights Act. As Roberts explained in his dissent in Merrill, “the District Court properly applied existing law in an extensive opinion with no apparent errors for our correction.”
Why, then, did the conservative justices stay the ruling by the district court? Although there was no opinion of the court (this was on its shadow docket), Justice Brett Kavanaugh, who was in the majority, wrote an opinion explaining the rationale behind the court’s order. He invoked the principle, once more, that federal courts should not mandate changes to state and local election practices soon before an election. Specifically: “The stay order follows this Court’s election-law precedents, which establish (i) that federal district courts ordinarily should not enjoin state election laws in the period close to an election, and (ii) that federal appellate courts should stay injunctions when, as here, lower federal courts contravene that principle. See, e.g., Purcell v. Gonzalez, 549 U. S. 1 (2006) (per curiam).”
Yet another example of the conservative justices extending the Purcell principle to months before the election was the ruling in December 2025 in Abbott v. League of United Latin American Citizens. The Texas legislature, at the urging of President Donald Trump, redrew its congressional districts to attempt to try and create five more districts where Republican candidates are likely to prevail. Governor Greg Abbott signed this into law on August 29, 2025. A lawsuit was immediately filed and a three-judge federal court quickly held a nine-day hearing. On November 18, the court, in a 2-1 160-page , found that the new districts violated equal protection in their discrimination against Hispanic and Black voters and issued a preliminary injunction against their being used. The court ordered the state to use the map that the Texas Legislature adopted in 2021 for the 2026 midterm elections.
But the Supreme Court stayed this ruling, allowing the gerrymandered districts to be used. One again, one of the reasons given was the Purcell principle. The court said that the challenge to the new districts came too soon before the election – even though the election was months away. The court stated that it had “repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election.” The court said that the three-judge court violated this “rule here … [by] improperly insert[ing] itself into an active primary campaign, causing much confusion and upsetting the delicate federal-state balance in elections.” Justice Elena Kagan, in dissent, objected that “[i]f Purcell prevents such a ruling, it gives every State the opportunity to hold an unlawful election.”
Louisiana v. Callais and the Purcell principle
The Louisiana congressional primary was scheduled for Saturday, May 16, 2026, less than three weeks after the court decided Louisiana v. Callais on April 29. In other words, the court’s ruling was much closer to the primary election than was the case in Merrill v. Milligan or Abbott v. LULAC. Mail-in ballots in Louisiana already had been sent to overseas and early-voting residents. Nonetheless, the court’s decision in Louisiana v. Callais paid no attention to the Purcell principle and Justice Samuel Alito’s majority opinion did not even mention it. The day after the Supreme Court’s decision, on April 30, Louisiana Governor Jeff Landry suspended the congressional primary, allowing the primary for other offices to occur on May 16. Contrary to the Purcell principle, the Supreme Court thus dramatically changed congressional elections in Louisiana after they were already underway.
In theory, one could say that Purcell is a limit on the ability of a federal district court to alter the rules soon before an election but does not apply to the Supreme Court. But that distinction would make no sense. Purcell is about when the judiciary should disrupt impending elections. There is no reason why the principle should apply differently depending on which federal court is acting.
And the Supreme Court’s ruling has triggered changes in other states that are in the midst of their primaries. Florida, for example, passed a new map for congressional districts while its primary process was underway. Tennessee’s legislature passed a new map on May 7, even though candidates had to qualify to run in March. South Carolina has proposed moving its congressional primaries from June to August to allow it to redraw congressional districts to help elect an additional Republican to the House of Representatives.
It should be deeply troubling that the same justices who created and extended the Purcell principle paid no attention to it whatsoever in handing down a ruling that will dramatically change the conduct of elections that are ongoing. Perhaps this will cause them to reconsider the Purcell principle and allow federal courts to declare unconstitutional or illegal election practices even soon before an election. I always have questioned the Purcell principle and allowing elections to take place under unconstitutional or illegal circumstances. But it especially cannot be that the Purcell principle applies primarily to help one side and not the other.
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