In separate rulings on Thursday, two federal courts had the same message for minority voters making credible claims of potential disenfranchisement: Your arguments may be good on the merits, but it’s too late. These courts, which were examining onerous voting rules in North Dakota and Kansas, took their cues from the U.S. Supreme Court, which has embraced an unfortunate rule that even serious voting problems cannot be remedied in the period before Election Day.
Native American voters in North Dakota filed suit a while back over the state changing its voter-identification law to make it harder for Native American voters living on reservations and lacking a residential street address to be able to vote. A federal court, seeing that this law could disenfranchise up to 2,000 Native American voters, had blocked the requirement for use in the midterm elections, but the United States Court of Appeals for the 8th Circuit reversed. In reversing, the court said there was no proof yet that the law would actually disenfranchise Native American voters, who could potentially get residential street addresses assigned to them before the election. (The Supreme Court, over the dissents of Justices Ginsburg and Kagan, refused to intervene.) And the 8th Circuit order came with a promise: “If any resident of North Dakota lacks a current residential street address and is denied an opportunity to vote on that basis, the courthouse doors remain open.”
That promise has now gone unfulfilled. Native American voters went back to court, after it turned out that it was far harder for these voters to get a residential address than the state represented. As the New York Times reported, “North Dakota officials maintain that any voter without a residential address can obtain one easily from their county’s 911 coordinator. But the lawsuit identified multiple instances in which people were unable to obtain an address through that process; obtained one but were denied an absentee ballot because election officials deemed the state-issued address invalid; or were denied an absentee ballot because the address they had used for years could not be found in the state’s database.”
On Thursday, the same district judge who issued the original—and subsequently overturned—order barring the use of the residential addresses for voting denied plaintiffs’ request for emergency relief. The judge was very disturbed by the new allegations but said that under a 2006 Supreme Court precedent, Purcell v. Gonzalez, it was too late to give relief. As the judge noted, Purcell said that “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.” That judge continued:
Election day is less than one week away. The allegations in the complaint, the motion for a temporary restraining order, and the attached affidavits give this Court great cause for concern. … However, a further injunction on the eve of the election will create as much confusion as it will alleviate, and is foreclosed by precedent …
We saw a similar ruling in Dodge City, Kansas, on Thursday. The city had only one polling place for 13,000 residents (a much higher number of voters per polling place than across the rest of the state) and election officials moved that polling place a mile out of town and far from public transportation because of “construction” at the regular polling (though that explanation seems dubious). Voting-rights advocates sought to open up another polling place in town.
The federal judge hearing the case was bothered by evidence that a local election official had forwarded to state officials an ACLU request to publicize a voter help line with the notation “LOL.”
While the court must evaluate the fully-developed facts governing this claim on a later day, the court notes, for now, its concerns about [the clerk’s] ‘LOL’ comment and questions whether it manifests a disregard for the ‘fundamental significance’ that our Constitution places on the right to vote.
The court nonetheless declined to open another polling place, citing the closeness of the election:
For the court to insert itself into this process on the eve of the election—by ordering the reopening of the Civic Center either as the only polling location or a second polling location—likely would create more voter confusion than it might cure. The relief plaintiffs seek is not in the public’s interest.
Both of these cases relied heavily upon what I’ve termed the “Purcell Principle,” which guides courts against making last-minute changes in voting rules out of fear of voter and election-administrator confusion.
The concern about voter and election-administrator confusion is a real one, and certainly courts should consider such factors in deciding whether to grant emergency relief before an election. But the Purcell Principle deviates significantly from how courts usually consider whether to grant emergency relief, which generally involves looking at how likely it is that plaintiffs will ultimately win their argument, the burdens on each side depending upon how the court rules, and the public interest.
In the North Dakota case, for example, the court appeared convinced that voters were being disenfranchised, and the appeals court had explicitly invited these voters to come back if their voting rights were being burdened. In such a case, the risk of confusion is outweighed by the damage of failing to enact a simple rule that would prevent actual disenfranchisement of voters. It is the same with the Dodge City case. The confusion here would appear minimal, and though the state raised the risk of double voting, there was no good evidence that was a problem that could not be solved by having voters cast provisional ballots at the second polling place.
Ultimately, the message that the Purcell Principle sends is this: Sometimes voters are going to face actual disenfranchisement, but when the evidence of a problem comes too close to the election, the courthouse door will be closed.
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