If SCOTUS Invokes Purcell Principle to Let Alabama Use Discriminatory Map, It’ll Be the Most Egregious Abuse We’ve Seen Yet

Alabama immediately appealed a lower court decision blocking it from using a racially discriminatory map Tuesday, hoping that the Supreme Court will overturn that ruling and allow it to use a map with only one Black-majority district for the 2026 midterms.

The lower court had reaffirmed its own finding from 2022 — that the map’s dilution of Black voters violated the Constitution — and found anew that the map additionally violated Section 2 of the Voting Rights Act, even under the new, difficult standard established by the Louisiana v. Callais decision. 

Instead, the court wrote, Alabama should hold its elections under a map drawn by the court (after the legislature ignored court orders to draw one itself) that has two Black-majority seats and which the state has used since 2024. The 2023 map that was found to discriminate had been blocked from use for the rest of the decade until the Supreme Court lifted that injunction earlier this month, sending it back down to the lower court for consideration in light of Callais. 

The lower court panel also invoked the Purcell principle in its finding, writing that allowing Alabama to implement the 2023 map would require “an expensive, aggressive, and perhaps logistically impossible voter reassignment effort.” The Purcell principle, an idea made up and never fully explained by the Roberts Court, counsels federal courts to avoid interfering in voting and election disputes on the eve of elections to avoid confusing voters. 

This panel clearly invoked the principle in good faith: It’s obvious that implementing a new map when voting in Alabama’s primary election has already begun would create confusion and chaos for voters. But the risk still remains that this partisan Supreme Court will counter with its own invocation of Purcell, somehow concluding that even Tuesday’s decision that maintains the current map is too close to the election, so, something something, Alabama gets to use the 2023 one.

The Court first mentioned the principle in an extremely brief 2006 shadow docket ruling, written by an unsigned majority, that let Arizona’s challenged voter ID law go into effect. 

The Court has never bothered to explain the parameters of this principle, perhaps because leaving it ambiguous has made it a helpful partisan tool. In that original Arizona case, the appellate court ruling that the Court blocked came less than two weeks before midterm Election Day that year. Since then, the time that the Supreme Court and lower courts consider the “eve” of the election has yawned, making it increasingly difficult for plaintiffs to successfully challenge voter restrictions or illegal maps during an election year or even in the months leading up to one. In one notorious case out of Galveston, the Fifth Circuit Court of Appeals invoked Purcell to sustain racially discriminatory county commissioner court districts because the decision blocking them came too close to the candidate filing deadline. 

If the Supreme Court responds to Alabama’s appeal with a helpful invocation of Purcell, it’ll be further proof (not that any is needed) that the principle is nothing more than a helpful cover when the majority wants to block decisions that would likely help Democrats. 

The panel of lower court judges on Tuesday upheld the status quo in Alabama. The state expected to use the court-drawn map this cycle up until the Court’s decision in Callais a few weeks ago. That decision set off a flurry of litigation in Alabama and across the South to rip up maps that required states to give Black voters an opportunity to elect the candidate of their choice before the midterms. 

Alabama Secretary of State Wes Allen (R) has said that the state’s primaries will proceed on May 19 — but that votes in four districts will be thrown out after the additionally scheduled August primary. The May primary will be held under the court-drawn map. If the courts permit it, the August one will be held under the 2023 map, which creates a 6-1 Republican advantage. 

On the one hand, blocking a map that a lower court found to be likely unconstitutional and unlawful would require the state to proceed like it planned to until early May — for candidates to run in the districts where they always planned to run and for voters to cast ballots in the same districts they did two years ago. On the other, letting that problematic map take effect not only risks disenfranchising Black voters, but would also require an administrative effort so extreme that legally cast ballots would be thrown out.

“Because the only evidence on this issue establishes that it would be enormously disruptive, clearly unlawful, and not necessary for the Secretary to administer the 2026 elections with the 2023 Plan, Purcell does not bar relief,” the judges wrote in Tuesday’s ruling. “We find it difficult to imagine a case where the facts more clearly counsel this conclusion.” 

If the Supreme Court invokes Purcell to let its Republican allies in Alabama use the map they want, it wouldn’t be the first time. 

In 2022, this same lower court panel found that an earlier iteration of the 2023 map — that also only had one Black-majority district — violated the Voting Rights Act. The Supreme Court swooped in to block that ruling and let Alabama hold its 2022 elections under that map because the late January ruling was too close to the state’s primary election a full five months later. Adding insult to injury, the Supreme Court ultimately agreed with the lower court and upheld its blocking of the map, but not before it cost Democrats House seats. Purcell-justified stays of orders blocking challenged maps in Alabama, Louisiana and Georgia likely cost Democrats around four seats in 2022; House Republicans came out of that election with a five-seat majority. 

When the Supreme Court issued the Alabama stay in 2022, Justice Elena Kagan (joined by Justices Stephen Breyer and Sonia Sotomayor) devoted much of her dissent to the majority’s contortion of the Purcell principle. 

“The plaintiffs ‘commenced their lawsuits within hours or days of the enactment of Alabama’s plan in November 2021,” she wrote. “And the District Court immediately expedited its proceedings; indeed, consistent with everything else the court did right, it moved with astonishing speed.” 

“The only delay (of a few weeks) came ‘at the request’ of the State,” she added. “Alabama is not entitled to keep violating Black Alabamians’ voting rights just because the court’s order came down in the first month of an election year.”

In a huffy concurrence, Justice Brett Kavanaugh (joined by Justice Samuel Alito) took umbrage at Kagan’s dissent. He wrote that requiring Alabama to implement a legal map months out from the elections was a “prescription for chaos for candidates, campaign organizations, independent groups, political parties, and voters, among others. The State says that those individuals and entities now do not know who will be running against whom in the primaries next month.”

“On top of that, state and local election officials need substantial time to plan for elections. Running elections state-wide is extraordinarily complicated and difficult,” he added. “Those elections require enormous advance preparations by state and local officials, and pose significant logistical challenges.” 

To him, and all of the conservatives except Chief Justice John Roberts, those administrative difficulties months out from the election justified using a map that snuffed out the Black vote. Remember these excuses if the Supreme Court invokes Purcell again to help out the Republicans trying to jam through changes when absentee ballots have already been cast, so near to Election Day that it requires them to throw out legal votes and establish brand new primaries.