The coronavirus pandemic has led to a number of late-breaking election law challenges since mid-March in states holding primaries. The Wisconsin primary is the most recent saga. After a growing pandemic concern, including a “stay at home” order issued March 24, a federal court issued a preliminary injunction on April 2 changing some election procedures ahead of the April 7 election. The Supreme Court on April 6 effectively put some of those changes on hold in its decision in Republican National Committee v. Democratic National Committee.

That’s all the summary or commentary I’ll provide on the merits—changes to the primary could have occurred in the state legislature or, in some jurisdictions, by executive order, and there are challenging questions to consider in primary elections as the election approaches in the midst of a pandemic.

Instead, one item struck me in the dispute between the five justice per curiam majority opinion, and the opinion Justice Ruth Bader Ginsburg wrote on behalf of herself and Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan. It concerns an interpretation of Purcell v. Gonzalez (2006).

There, the Court reversed a lower court decision that altered an election rule close in time to the election. The Purcell Court emphasized:

Faced with an application to enjoin operation of voter identification procedures just weeks before an election, the Court of Appeals was required to weigh, in addition to the harms attendant upon issuance or nonissuance of an injunction, considerations specific to election cases and its own institutional procedures. Court orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase.

Professor Rick Hasen has referred to this as the “Purcell Principle,” and the Supreme Court has, for the most part, adhered to it—it has reversed lower court injunctions that have altered election rules close in time to the election (the Court’s per curiam opinion cites a couple in RNC v. DNC). It would be nice if the Court articulated better standards than Purcell provides, but the point remains.

But note what these decisions do—the Supreme Court changes a lower court ruling, which had changed an election rule. Purcell is designed to rein in lower courts that change rules. It’s not designed to rein in the Supreme Court and prevent the Court from restoring the original rule.

Consistent with Purcell, the majority opinion tells a lower court not to change the election rules too close in time to the election (here, five days before the election);

This Court has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election. See Purcell v. Gonzalez, 549 U. S. 1 (2006) (per curiam); Frank v. Walker, 574 U. S. 929 (2014); Veasey v. Perry, 574 U. S. __ (2014).

But that’s where I noticed a couple of passages from Justice Ginsburg’s dissenting opinion interpreting Purcell differently:

This Court’s intervention is thus ill advised, especially so at this late hour. See Purcell v. Gonzalez, 549 U. S. 1, 4–5 (2006) (per curiam). Election officials have spent the past few days establishing procedures and informing voters in accordance with the District Court’s deadline. For this Court to upend the process—a day before the April 7 post-mark deadline—is sure to confound election officials and voters.

…

Second, the Court’s order cites Purcell, apparently skeptical of the District Court’s intervention shortly before an election. Nevermind that the District Court was reacting to a grave, rapidly developing public health crisis. If proximity to the election counseled hesitation when the District Court acted several days ago, this Court’s intervention today—even closer to the election—is all the more inappropriate.

That can’t be what Purcell dictates. Purcell’s entire point is that lower courts can’t change the rules of elections close in time to the election—not that once they do so, the Supreme Court (which always hears the case even closer to the election) can’t restore the original rule.

Now, had Justice Ginsburg offered an alternative interpretation of Purcell—say, a Purcell exception—it might have been more persuasive. For instance, she notes that “the District Court was reacting to a grave, rapidly developing public health crisis.” If Purcell dictates that election rules shouldn’t be changed close in time to elections, perhaps there are times when facts are so late-breaking and so dire that Purcell should give way.

But that would require the Court to articulate a deeper understanding of Purcell, including its contours and its potential exceptions. Justice Ginsburg’s dissenting opinion doesn’t do so, turning Purcell on its head and rendering it largely meaningless.

While one can have varying views on the majority and dissenting opinions, their rightness or wrongness, and the challenges in Wisconsin, I do think this misunderstanding of Purcell was significant enough to draw a little attention to it.

This post has been updated.