Duke Law Journal

Why the Purcell Principle Should Be Abolished

Abstract

The Supreme Court seeks to promote orderly and effective voting through the Purcell principle, which prohibits district courts from altering election rules via injunctions on the eve of an election. Applying this principle, a court considers only the proximity of the upcoming election. The underlying rationale of the Purcell principle is to avoid possible voter confusion and election chaos caused by lastminute changes. While these are legitimate concerns, the rigid Purcell principle has led courts to blindly reject any changes proposed shortly before the election—even when the changes are necessary for an orderly, effective election.

This Note identifies the drawbacks of the Purcell principle and argues for its abolition. In other words, courts should cease applying the Purcell principle and return to the Winter preliminary injunction standard, which requires courts to weigh plaintiffs’ likelihood of success on the merits, any irreparable harm to parties, the balance of equities, and the public interest. The Purcell principle is ambiguous in three key ways: whether it is a stand-alone rule or a subfactor; how close the election has to be for the principle to apply; and whether it applies to appellate decisions in addition to district courts’ orders. The consistent failure of the judiciary to clarify the principle in the hundreds of Purcell cases generated by the COVID-19 pandemic demonstrates that revising Purcell is impracticable.