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Trump’s Best Bet to Get SCOTUS’s Help Right Now Is to Convince the Justices That RBG Was Right

President Donald Trump, intent on stopping post-Election Day vote counts, vowed to take his case to the U.S. Supreme Court. As Law&Crime founder and ABC News chief legal analyst Dan Abrams pointed out early Wednesday morning, though, Republicans “are not going to have any success in stopping the vote counting right now. The only success that they may have down the road is in assessing which votes will ultimately end up counting.” Not only is Abrams correct that SCOTUS involvement is wildly premature at this stage, but there’s also an entire body of law that weighs against judicial involvement any time it would occur within close proximity to an election.

A legal theory known as the “Purcell principle” dictates that courts should not alter any election rules near an actual election, because doing so has potential to 1) confuse voters; and 2) create problems for those officials who are actually administering the election.

The Purcell principle will be a difficult obstacle for Donald Trump to navigate. His best argument in favor of judicial involvement at this phase, though, may stem from a dissent penned by none other than the late Ruth Bader Ginsburg.

For context, here’s a little background on the Purcell principle.

It hails from the 2006 case Purcell v. Gonzalez, in which the Supreme Court of the United States reversed a Ninth Circuit decision blocking an Arizona voter ID law. Plaintiffs sued to invalidate the law and, initially, the district court sided against them. The Ninth Circuit’s ruling then temporarily blocked the law until an appeal on the merits could be heard; although it was a temporary ruling, it had the effect of changing the rules for the upcoming November election. When the appeal came before SCOTUS, the high court ruled that because there was so little time between the Ninth Circuit’s order and the election itself, because Arizona election officials needed clear guidance, and because the Ninth Circuit hadn’t offered an explanation for its decision, SCOTUS should simply stay out of it.

Most frequently, Purcell issues arise when litigants ask that an appellate court stay a lower court decision that would change the rules for an impending election. Following the Purcell case itself, a handful of later Supreme Court cases raised the Purcell principle–always holding that courts should steer clear of election processes once those processes are underway.

Ironically, the dissenting justices (Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan) in the 2014 case of Veasey v. Perry offered an application of Purcell that would allow SCOTUS to step in–even close to an election; while their take on the Veasey case would have meant a win for those contesting voter ID laws, it arguably could apply in a manner that would help Trump’s case in the 2020 election.

Here’s what happened in Veasey.

At the time, Texas had a new voter ID law on the books. In early October, the district court ruled that the law was unconstitutional. Later in October, the Fifth Circuit blocked the district court’s decision. Applying the Purcell principle and citing the chaos of re-training thousands of poll workers, the circuit court ruled that the new law should remain in effect for the election (even if it were ultimately invalidated after full litigation later).

The Supreme Court, on an application presented to Justice Antonin Scalia, denied the motion to vacate the Fifth Circuit’s stay. Although Scalia offered no written reasoning, the reality was–as expected– hat SCOTUS simply wouldn’t get involved. Justice Ginsburg disagreed with the Court’s majority as to how exactly Purcell should be applied, indicating that she wasn’t strictly against judicial involvement in all near-elections cases.

Ginsburg’s logic focused on the practical effect that SCOTUS involvement would have had. Because there was “little risk” that Texas’ electoral processes would actually be disrupted, there was no good reason for the Court to abstain. All Texas needed to do was reinstate the voter ID laws that had been on the books for a decade (from 2003 to 2013) as opposed to the newer laws that had been used in recent (but low-participation) elections. The poll workers, reasoned Ginsburg, were probably no more familiar with the new rules than they had been with the old ones.

Furthermore, Texas’s entire argument was suspect. The Lone Star State “knew full well that the court would issue its ruling only weeks away from the election.”

Therefore, it had plenty of time to prepare for the possibility that it would need to revert to the old ID laws. Plus, according to the district court record, the state’s efforts to familiarize the public and the poll workers with the new rules were  “woefully lacking” and “grossly” underfunded. “In short,” Ginsburg wrote, “any voter confusion or lack of public confidence in Texas’ electoral processes is in this case largely attributable to the State itself.”

In Ginsburg’s analysis, the risk of disrupting the election (at least in that case) just wasn’t enough for appellate courts to abandon their normal role in reviewing lower court decisions.

As recently as April 2020, though, SCOTUS ruled in elections cases and applied Purcell. SCOTUS issued a 5-4 ruling on Wisconsin absentee voting in Republican National Committee v. Democratic National Committee. The high court ruled that the district court should not have changed the election rules so close to the election.

As the threat of litigation over the results of the 2020 election looms, Trump would need to clear the Purcell hurdle before looking to the judiciary for help. Of course, now that Election Day has passed, threats of confusion for voters or poll-workers would theoretically be minimal. That pragmatic analysis, which examines the actual effect of judicial intervention in specific cases, might have been an easier sell if Ginsburg were still on the Court.

[image via Mandel Ngan/AFP via Getty Images]

This is an opinion piece. The views expressed in this article are those of just the author.

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos