Purcell Principles for State Courts

In recent years, the U.S. Supreme Court has stressed that federal courts ordinarily should not issue remedies, such as preliminary injunctions, that would alter the rules for an impending election. This is known as the Purcell principle, and it frequently stymies litigants who seek to redress legal violations ahead of an election. Existing commentary on Purcell, most of it critical, has focused on the federal level. A large and growing share of election litigation, however, occurs in state courts. This Essay surveys pre-election remedial practice and the status of the Purcell principle in state-level litigation. Based on a review of every reported state court decision to have cited Purcell, our key descriptive takeaway is that state courts are not mirroring the U.S. Supreme Court’s strong aversion to pre-election relief. Instead, they have taken a more nuanced and context-specific approach. Conceptually, we explain that there is good reason for state courts to chart their own course in this area— something they are free to do since the Purcell principle is an equitable doctrine by and for federal courts. The federalism concerns that partly undergird the Purcell principle do not apply to state courts, and state courts have distinctive powers and duties that make a blanket presumption against pre-election intervention inappropriate. Prescriptively, building on existing state caselaw and academic commentary, we identify several considerations for state courts to weigh as they decide whether to grant pre-election remedies. These considerations, which we refer to as Purcell principles for state courts, aim to get at each case’s underlying equities and help courts discern whether, on balance, intervention ahead of an election is warranted. This Essay concludes by discussing how the federal Purcell principle impacts pre-election U.S. Supreme Court review of state court remedial rulings, such as when litigants ask the Court for emergency relief on the ground that a state court violated the Federal Constitution’s Elections Clause.