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The Supreme Court Basically Told Judges To Stop Messing With Voting Laws Before The Election

With a Saturday morning order, the justices presented a united front in allowing enforcement — for now — of an Arizona law making so-called "ballot harvesting" a felony.

Last updated on November 5, 2016, at 2:04 p.m. ET

Posted on November 5, 2016, at 1:28 p.m. ET

Yuri Gripas / Reuters

WASHINGTON — The Supreme Court on Saturday morning indicated that it doesn't want lower courts messing with election laws before Tuesday's election.

Attempting to slow an ever-expanding map of pre-election litigation, the justices sent a message to lower courts that the time had passed for rulings that would change the way election laws are implemented for the upcoming election.

In a brief, unsigned order on Saturday morning, the Supreme Court effectively reversed a Friday decision of the 9th Circuit Court of Appeals — putting a ruling from the appeals court on hold for now that had stopped enforcement of an Arizona law that made third-party collection of early voting ballots a felony.

That complicated procedural, legal mess can be simplified to one short sentence: The Supreme Court said that the law in place when voting began in Arizona will remain in effect in Arizona through the election.

The Supreme Court made clear that it was making no ruling on whether the law against so-called "ballot harvesting" ultimately should be upheld (the 9th Circuit is due to hold arguments over the law in January). Saturday's order was only on the preliminary injunction of the law that had been issued Friday by the appeals court.

The order also is not about stopping potential election day challenges relating to polling places or voting hours — calls on the field during the game, to analogize. It is focused on stopping challenges to the underlying rules of the game after the game — i.e., voting — has already begun in earnest in many states across the nation.

For election law lawyers, it is a message that the so-called "Purcell principle" — referring to an earlier Supreme Court election law case — remains in effect. The Purcell principle is, as law professor Rick Hasen explains it, "the idea that courts should not issue orders which change election rules in the period just before the election." Such late changes in the way elections are carried out are disfavored because they risk causing confusion to voters, candidates, election law administrators, and courts.

The spirit motivating the Purcell principle became abundantly clear on Saturday after the Supreme Court issued its order, when people immediately began asking what would happen to ballots that were collected in between the 9th Circuit's Friday order and the Supreme Court's Saturday order, or what would happen to ballots collected after the 9th Circuit's order but not yet submitted by the time of the Supreme Court's order. The Arizona Secretary of State quickly attempted to stop any confusion on that point, announcing that ballots collected during the period when the law was enjoined could be submitted on Monday and will be counted.

To the larger point, though, the fact that Saturday's Supreme Court order came with no written dissent and came so soon — within three hours — after the Democrats filed their brief supporting the 9th Circuit's injunction made clear that, at least on this point of stopping late election law challenges, the eight justices are willing to present a united front.

UPDATE

This article has been updated and expanded.


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