A man's hands holding a mail-in ballot that reads

Election Confusion: Changing the Rules Midway

North Carolina is in the middle of an election that has been characterized by fear and confusion. One major source of the confusion for voters is guidance given by the state Board of Elections after voting had already begun which changed rules for absentee ballots. This guidance was the outcome of a controversial settlement led by Democratic super-litigator Marc Elias. Elias and his fellow election lawyers have managed to stir up confusion across the country filing hundreds of election lawsuits since the beginning of the year. JLF’s Director of Legal Studies, Jon Guze, explains in his recent research brief:

Since the beginning of the year, Democrats and their political allies have filed hundreds of lawsuits (411 as of this writing) challenging state election laws…

And the Supreme Court has been issuing rulings on election lawsuits from across the country in recent weeks. According to Carolina Journal, just Wednesday night, “Justices ruled 5-3… that the state of Alabama could restore its ban on curbside voting.”

However, issuing decisions about elections after they already started is anything but ideal. That is the idea behind the “Purcell principle.” The Purcell principle is a legal dictum that holds, according to the SCOTUS Blog:

[C]ourts should not change election rules during the period of time just prior to an election because doing so could confuse voters and create problems for officials administering the election.

Courts are not bound to the Purcell principle, as it is not a hard-and-fast legal precedent. However, most justices respect the Purcell principle and try to abide by it. While this currently only applies to the courts, it is unclear why the logic should not extend to other government branches and agencies. In his research brief, Jon Guze quotes three dissenting judges on the Appeals Court who recently heard North Carolina’s absentee ballot case:

Purcell has traditionally been applied against federal courts changing the rules shortly before elections. But there is no principled reason why this rule should not apply against interferences by state courts and agencies. … Whenever interference occurs, it incentivizes an avalanche of partisan and destabilizing litigation against election rules duly enacted by state legislatures. If Purcell did not apply in state courts … election rules would continue to be at the mercy of litigation and rushed, last-minute decisions by state judges.

Changing election rules in the midst of an election is bad form – regardless of the branch of government. North Carolina’s absentee ballot case is currently being appealed to the Supreme Court of the United States.

Read Jon Guze’s full brief on the Purcell principle here. Stay up-to-date with North Carolina’s absentee ballot lawsuit in Carolina Journal’s frequently-updated overview here.

Brenee Goforth / Marketing and Communications Associate

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