Re-examining the Purcell Principle in the Era of Election Denialism

Pruthvirajsinh Zala

Supreme Court of India

Introduction

The Georgia State Election Board (“SEB”) recently passed a new rule requiring a manual hand count of all ballots, just 46 days before the upcoming presidential elections. The hand count rule mandates that after poll closure, three poll workers must manually count all paper ballots – not tally votes –  from scanner ballot boxes. This count is then reconciled against the electronic tally. In cases of discrepancies between the manual and electronic counts, poll managers must investigate and attempt to resolve the inconsistencies, documenting all actions taken. This move has drawn significant criticism, with many arguing it will create chaos and confusion for election officials and is a partisan attempt to delay the certification process. Numerous commentators have termed it a partisan action “turn[ing] democracy on the head”. While the SEB finds this move necessary to rebuild public trust, some claim there is no actual problem that needs to be remedied.

On 15th October 2024, the Superior Court of Fulton County enjoined the enforcement of the hand count rule. In Cobb County Board of Elections and Registration v. State Election Board, Judge McBurney expressed significant concerns about the rule’s timing and potential impact on the electoral process. While the Georgia Attorney General’s office has raised concerns about the hand count rule exceeding agency rulemaking authority, this post focuses on the application of the Purcell principle and electoral integrity considerations. The non-delegation argument, though significant, falls outside the scope of this analysis. This post analyses the enjoinment of the hand count rule in light of wider concerns of election integrity and attempts to explore the following dilemma: how can courts balance public trust against the risks of eleventh-hour changes in an era of rampant election denialism?

The Purcell Principle and its (mis)application

The Purcell principle, derived from the 2006 Supreme Court case Purcell v. Gonzalez, advocates judicial restraint in modifying election rules close to an election. This doctrine serves two primary purposes: preventing voter confusion and maintaining the integrity of elections.

Judge McBurney’s ruling overemphasizes administrative concerns while undervaluing the potential benefits of the hand count rule in enhancing electoral integrity. The Purcell principle explicitly recognizes that “confidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy.”

The court’s reliance on Justice Kavanaugh’s concurrence in Merrill v. Milligan may be misplaced in this context. While Justice Kavanaugh cautioned against last-minute changes that could cause administrative chaos, he also distinguished between court-ordered changes and state-initiated modifications. Unlike the changes that directly affect voter behaviour, such as redistricting or voter ID requirements, the hand count rule primarily impacts election officials’ procedures.

The operative inquiry under Purcell should be whether the court’s order will chill voting, create confusion or chaos, and skew electoral integrity. In this case, while the new rule creates an additional layer of scrutiny that will add time to the counting process and create an additional duty for poll workers, it does not introduce a complicated technical procedure requiring onerous training or resulting in confusion for election officials.

Virtue of Electoral Integrity in a Post-Tru[mp]th World

The legitimacy of a democracy fundamentally depends on public faith in the electoral process. A decrease in voter confidence about electoral integrity not only questions the legitimacy of governance but – as seen in the past – impedes the peaceful transfer of power. While conspiracy theories and election denialism pose challenges, addressing concerns – both reasonable and those perceived as unreasonable – about electoral legitimacy remains essential. Mitigating large-scale concerns, even if they are purportedly unfounded, does not ipso facto contribute to chaos.

The procedural quality of elections is crucial for securing losers’ consent. Even when actual procedures are sound, they can undermine confidence in results and reshape voting patterns if seen as unfair or opaque. The consideration of integrity should not be dismissed merely by claiming that supporters of such moves are anti-democratic election deniers. Rather, the very existence of doubt – however malicious or unfounded – necessitates allowing an integrity-enhancing rule to ensure that all citizens, including those sceptical of the process, trust the outcome.

Electoral integrity extends beyond voter participation, encompassing crucial aspects of nonvoting political engagement. Fitz and Saunders’ analysis of the 2020 presidential election cycle reveals an inverse relationship between electoral trust and nonvoting participation. This finding suggests that diminished faith in electoral integrity correlates with increased engagement in activities such as political donations, party event attendance, online participation, protests, and party volunteerism. Consequently, considerations of electoral integrity have far-reaching implications for the broader spectrum of political involvement, underscoring its significance in shaping overall democratic engagement. Courts adjudicating election cases must recognize that perceptions of (un)fairness, whether legitimate or not, can erode democratic legitimacy as much as actual unfairness.

Recalibrating Purcell

While preventing confusion and ensuring administrability are important facets, they should not be the sole considerations. As Chief Justice Roberts noted in Doe v. Reed, preserving electoral integrity also encompasses “promoting transparency and accountability in the [counting] process.” Even measures that may impose a prima facie disparate burden have been permitted when they serve the compelling interest of preserving election integrity.

Charles Franklin argues that Justice Kavanaugh’s interpretation of Purcell in Merrill v. Milligan shifts the focus from voter enfranchisement to bureaucratic inconvenience. Drawing attention to Justice Ginsburg’s dissent in RNC v. DNC, Franklin contends that even a narrow, anti-confusion reading of Purcell should still prioritize the doctrine’s core tenet: preventing disenfranchisement and thereby preserving electoral integrity. This critique suggests that recent applications of Purcell may have strayed from its original intent, emphasizing administrative concerns at the expense of democratic values. (See also here)

The prevention of electoral chaos and confusion should be viewed as a means to preserve democratic legitimacy, not an end in itself. Applying Purcell as a bright-line rule or negating it entirely diminishes its jurisprudential value. Instead, courts should apply it pragmatically within a contextual balancing analysis that considers both equitable factors and those specific to election integrity. This interpretation acknowledges Purcell as a flexible, non-categorical factor in the judicial balancing test, allowing for a more nuanced consideration of competing values while upholding its core purpose of safeguarding electoral integrity.

Conclusion

While concerns about the hand count rule delaying election certification through stalling tactics or confusion are valid, such outcomes remain highly unlikely. The Georgia Supreme Court has repeatedly affirmed that certifying election results is a non-discretionary, ministerial duty. Robust safeguards are in place to ensure timely certification, even in the face of election denialism.

Apart from a legal authority and Purcell review, courts handling electoral integrity cases must adopt a pragmatic and anti-entrenching path which preserves confidence in the election process. This necessitates a contextual recalibration of Purcell, carefully weighing both the positive and negative impacts of the challenged rule and the court’s potential ruling on overall election integrity.

Pruthvirajsinh Zala is a Judicial Law Clerk-cum-Research Associate at the Supreme Court of India. Views are personal.

Suggested Citation: Pruthvirajsinh Zala, ‘Re-examining the Purcell Principle in the Era of Election Denialism’ IACL-AIDC Blog (19 November 2024) Re-examining the Purcell Principle in the Era of Election Denialism — IACL-IADC Blog