Note

Sovereigns’ Interests and Double Jeopardy

In the 2019 case of Gamble v. United States, the Supreme Court upheld the dual sovereignty doctrine, reiterating that the Double Jeopardy Clause only bars successive or concurrent prosecutions by the same sovereign. When, therefore, a criminal defendant has violated the laws of two sovereigns by the same act, regardless of how similar those laws may be, no double jeopardy issue arises where both sovereigns prosecute the defendant independently. This Note argues that such an outcome is at odds with the Due Process Clause’s guarantee against double jeopardy and rests upon an excessively rigid formulation of prior case law. The Supreme Court’s double jeopardy jurisprudence actually suggests that the dual sovereignty doctrine should only be applied in instances where each sovereign possesses a distinct interest that they alone can vindicate. This Note advances a primary-purposes test to determine when separate or concurrent prosecutions are appropriate: a second sovereign should only be permitted to prosecute a defendant for the same crime if the primary purpose of that prosecution is to vindicate a sovereign interest that the first sovereign’s prosecution would leave substantially unvindicated. Applying this test would also ease the Gamble Court’s worry that modifying the doctrine could interfere with the balance of domestic and international prosecutions. Because the United States and a foreign sovereign, as completely independent entities, could always decline to treat the exercise of the other’s jurisdiction as exclusive, each sovereign would retain an interest in prosecuting a defendant that the other sovereign could never substantially vindicate.

Introduction

In the 1969 case of Benton v. Maryland, the Supreme Court of the United States held that the Fifth Amendment’s guarantee against double jeopardy, that “[n]o person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb,”1 1.U.S. Const. amend. V.Show More formed a fundamental right that was incorporated by the Fourteenth Amendment’s Due Process Clause against the states.2 2.395 U.S. 784, 794 (1969) (“[W]e today find that the double jeopardy prohibition of the Fifth Amendment represents a fundamental ideal in our constitutional heritage, and that it should apply to the States through the Fourteenth Amendment.”).Show More In so doing, the Supreme Court reversed its earlier decision in Palko v. Connecticut, which had held that the Double Jeopardy Clause was not incorporated against the states, inasmuch as the protection was not “of the very essence of a scheme of ordered liberty.”3 3.302 U.S. 319, 325 (1937).Show More In spite of Benton, however, the Supreme Court has regularly upheld one glaring exception to the Double Jeopardy Clause: the dual sovereignty doctrine.

Under the dual sovereignty doctrine, a defendant may be prosecuted twice for the same crime if separate sovereigns are involved in bringing each prosecution. Although the circumstances under which two entities constitute separate sovereigns may not be clear-cut as a philosophical matter, for purposes of dual sovereignty, the Supreme Court has made clear that the states and the federal government are considered distinct sovereigns,4 4.See, e.g., Bartkus v. Illinois, 359 U.S. 121, 132–34 (1959) (finding no double jeopardy bar to successive state and federal prosecutions as a result of the “two-sovereignty principle”); Heath v. Alabama, 474 U.S. 82, 89 (1985) (“The States are no less sovereign with respect to each other than they are with respect to the Federal Government.”).Show More as are Native American tribes.5 5.United States v. Lara, 541 U.S. 193, 210 (2004) (holding that because the “inherent tribal authority[] to prosecute nonmember Indians” does “not amount to an exercise of federal power,” tribes are acting as “separate sovereign[s]” for Fifth Amendment purposes during such prosecutions).Show More Territories such as Puerto Rico, however, are not.6 6.Puerto Rico v. Sanchez Valle, 579 U.S. 59, 78 (2016) (holding that “[b]ecause the ultimate source of Puerto Rico’s prosecutorial power is the Federal Government . . . the Commonwealth and the United States are not separate sovereigns” for Fifth Amendment purposes).Show More A hypothetical defendant could thus be subject to all criminal jurisdictions within the United States, assuming that a jurisdictional hook connects the defendant’s conduct and each of the respective sovereigns. The possibility of these concurrent or subsequent prosecutions militates against a common-sense understanding of what the Double Jeopardy Clause would seem to require. Nevertheless, the Supreme Court has repeatedly upheld the constitutionality of the dual sovereignty doctrine, and it has done so most recently in the 2019 case of Gamble v. United States.7 7.139 S. Ct. 1960, 1979–80 (2019).Show More

This Note argues that the dual sovereignty doctrine, in its current formulation as expressed in Gamble, unconstitutionally infringes upon defendants’ due process rights. First, this Note argues that a close reading of the case law upon which the Gamble Court relies implies a more flexible construction of the dual sovereignty doctrine and that the doctrine should only come into play when separate prosecutions vindicate distinct sovereign interests. Moreover, the doctrine should be reinterpreted following both the ratification of the Fourteenth Amendment and the 1969 Benton decision incorporating the Double Jeopardy Clause through the Due Process Clause—something for which the Court has not properly accounted. Second, this Note examines an argument by the majority relating to prosecutions by international foreign sovereigns to demonstrate that the majority misunderstands the concept of sovereignty. The majority’s reinterpretation of the dual sovereignty doctrine should not ipso facto alter the effect that foreign criminal proceedings may have on domestic ones. Finally, this Note proposes a “primary-purposes” balancing test, which would protect defendants’ due process rights against double jeopardy while simultaneously carving out a constitutionally permissible space for instances where subsequent prosecution by another sovereign may remain legitimate and desirable. This Note conducts a substantial-interest analysis8 8.This term may be familiar from choice-of-law theory, as it describes an analytical method “in which courts identify those states with interests in a particular issue before the court and then determine which of the competing states should have its law applied to the issue. The court makes that determination by identifying the state with the greatest interest in the matter.” John Bernard Corr, Interest Analysis and Choice of Law: The Dubious Dominance of Domicile, 1983 Utah L. Rev. 651, 653 n.10. This Note advances a somewhat analogous argument in the Double Jeopardy context, namely: when two or more separate domestic sovereigns have jurisdiction over a matter, the sovereign whose interest is primarily at stake should proceed with the prosecution, and only when that sovereign, in its own proceeding, cannot substantially vindicate the interest of the other(s), should subsequent or concurrent prosecutions proceed without running afoul of the Double Jeopardy and Due Process Clauses. Otherwise, any resemblance between this Note’s use of this term here and its use in a choice-of-law context is only coincidental.Show More with respect to the dual sovereignty doctrine and proposes a test that would resolve the applicability of the doctrine with respect to both domestic and foreign sovereigns.9 9.The Ohio Northern University Law Review published a short piece on Gamble that briefly suggested the applicability of an interest-analysis and the possible use of a balancing test in resolving the constitutional problems associated with the dual sovereignty doctrine. Alexander S. Prillaman, Student Case Notes, Gamble v. United States, 46 Ohio N.U. L. Rev. 181, 192–93 (2020). This Note, however, analyzes in significantly greater detail the prior case law upon which Gamble relies, discusses the consequences of the incorporation of the Double Jeopardy Clause, and examines the effects of a possible modification of the dual sovereignty doctrine vis-à-vis foreign (international) sovereign proceedings both to flesh out the possibility of a balancing test and to ground the suggestion more firmly in the broader jurisprudential principles and normative desirability of such a test.Show More

  1.  U.S. Const. amend. V. ↑
  2.  395 U.S. 784, 794 (1969) (“[W]e today find that the double jeopardy prohibition of the Fifth Amendment represents a fundamental ideal in our constitutional heritage, and that it should apply to the States through the Fourteenth Amendment.”). ↑
  3.  302 U.S. 319, 325 (1937). ↑
  4.  See, e.g., Bartkus v. Illinois, 359 U.S. 121, 132–34 (1959) (finding no double jeopardy bar to successive state and federal prosecutions as a result of the “two-sovereignty principle”); Heath v. Alabama, 474 U.S. 82, 89 (1985) (“The States are no less sovereign with respect to each other than they are with respect to the Federal Government.”). ↑
  5.  United States v. Lara, 541 U.S. 193, 210 (2004) (holding that because the “inherent tribal authority[] to prosecute nonmember Indians” does “not amount to an exercise of federal power,” tribes are acting as “separate sovereign[s]” for Fifth Amendment purposes during such prosecutions). ↑
  6.  Puerto Rico v. Sanchez Valle, 579 U.S. 59, 78 (2016) (holding that “[b]ecause the ultimate source of Puerto Rico’s prosecutorial power is the Federal Government . . . the Commonwealth and the United States are not separate sovereigns” for Fifth Amendment purposes). ↑
  7.  139 S. Ct. 1960, 1979–80 (2019). ↑
  8.  This term may be familiar from choice-of-law theory, as it describes an analytical method “in which courts identify those states with interests in a particular issue before the court and then determine which of the competing states should have its law applied to the issue. The court makes that determination by identifying the state with the greatest interest in the matter.” John Bernard Corr, Interest Analysis and Choice of Law: The Dubious Dominance of Domicile, 1983 Utah L. Rev. 651, 653 n.10. This Note advances a somewhat analogous argument in the Double Jeopardy context, namely: when two or more separate domestic sovereigns have jurisdiction over a matter, the sovereign whose interest is primarily at stake should proceed with the prosecution, and only when that sovereign, in its own proceeding, cannot substantially vindicate the interest of the other(s), should subsequent or concurrent prosecutions proceed without running afoul of the Double Jeopardy and Due Process Clauses. Otherwise, any resemblance between this Note’s use of this term here and its use in a choice-of-law context is only coincidental. ↑

  9.  The Ohio Northern University Law Review published a short piece on Gamble that briefly suggested the applicability of an interest-analysis and the possible use of a balancing test in resolving the constitutional problems associated with the dual sovereignty doctrine. Alexander S. Prillaman, Student Case Notes, Gamble v. United States, 46 Ohio N.U. L. Rev. 181, 192–93 (2020). This Note, however, analyzes in significantly greater detail the prior case law upon which Gamble relies, discusses the consequences of the incorporation of the Double Jeopardy Clause, and examines the effects of a possible modification of the dual sovereignty doctrine vis-à-vis foreign (international) sovereign proceedings both to flesh out the possibility of a balancing test and to ground the suggestion more firmly in the broader jurisprudential principles and normative desirability of such a test. ↑

The Case for City Reparations

Once a political boogeyman, calls for Black reparations as a means to advance racial justice in the United States have become increasingly earnest, particularly in the wake of George Floyd’s murder. But among those who view reparations as morally imperative, there is much disagreement about where they should occur. Proponents of reparations have called on federal, state, and local government to implement reparatory justice. But so far, only one institution has meaningfully responded: cities. For the first time in American history, cities across the country are beginning to implement reparations. In this Note, I argue that cities both can and should adopt reparatory policies, as city government—not state or federal—is best positioned to craft effective and constitutional reparations. After surveying current municipal reparations policies, I contend that cities are the correct level at which to pioneer reparations for three reasons: normative, pragmatic, and constitutional. Normative, because city government is proximate, responsive, and capable of unique policy innovation. Pragmatic, because cities enjoy supportive political coalitions that become improbable at the state and federal levels. And constitutional, because race-based programs like reparations must identify and connect a historic harm “with particularity” to the remedy to pass legal muster, which cities are uniquely well-suited to do. After making the case for cities as the proper venue, I suggest ways in which cities can both find reparatory power and avoid unwanted interference by their home states.

Introduction

American reparations are nearly as old as the country itself. From pre-Civil War abolitionist attempts1 1.Gary B. Nash, Warner Mifflin: Unflinching Quaker Abolitionist 101–02 (Daniel K. Richter, Kathleen M. Brown, Max Cavitch & David Waldstreicher eds., 2017).Show More to General Sherman’s Field Order No. 15,2 2.William A. Darity Jr. & A. Kirsten Mullen, From Here to Equality: Reparations for Black Americans in the Twenty-First Century 9 (2d ed. 2020).Show More many Americans have long sought to advance racial justice through reparatory programs. And while these early attempts foundered on the shoals of virulent bigotry and political impossibility, today’s renewed calls for reparations are no longer falling on deaf ears.3 3.Many credit Ta-Nehisi Coates’s groundbreaking 2014 article The Case for Reparations with popularizing the idea of modern American reparations. See Jonathan Capehart, How Ta-Nehisi Coates Turned Reparations from a Punchline into a Policy Objective, Wash. Post (Mar. 20, 2019, 3:25 PM), https://www.washingtonpost.com/opinions/2019/03/20/how-ta-nehisi-co‌ates-turned-reparations-punchline-into-policy-objective/ [https://perma.cc/D2AL-BURY]; Ta-Nehisi Coates, The Case for Reparations, The Atlantic (June 2014), https://www.theatlanti‌c.com/magazine/archive/2014/06/the-case-for-reparations/361631/ [https://perma.cc/5XHN-8WW8].Show More

In the wake of George Floyd’s murder, public support for reparations grew tremendously, particularly among white Americans.4 4.See Ashley V. Reichelmann & Matthew O. Hunt, How We Repair It: White Americans’ Attitudes Toward Reparations, Brookings Inst. (Dec. 8, 2021), https://www.brookings.edu/arti‌cles/how-we-repair-it-white-americans-attitudes-toward-reparations/ [https://perma.cc/5KB9‌-XSXX] (noting that white American support for cash reparations grew from 6% in 2014 to 28% in 2021, an increase of over 300%).Show More As then-California Assemblywoman Shirley Weber put it at the time, “Folks [are] now begin[ning] to realize just how extensively, how deeply, issues of race are embedded in our society and how that can produce what we saw happen to George Floyd in Minneapolis.”5 5.Lauren Gambino, Calls for Reparations Are Growing Louder. How Is the US Responding?, The Guardian (June 20, 2020, 5:00 AM), https://www.theguardian.com/world/‌2020/jun/20/joe-biden-reparations-slavery-george-floyd-protests [https://perma.cc/FE3T-GY‌RA].Show More When Americans began to call for reparations, policymakers in city, state, and federal government all made commitments to consider reparatory justice.6 6.See, e.g., Eugene Daniels, Biden Privately Tells Lawmakers Not to Expect Much on Reparations Legislation, Politico (June 2, 2021, 1:46 PM), https://www.politico.com/news/20‌21/06/02/biden-reparations-tulsa-491607 [https://perma.cc/4B27-WBXU] (“As a candidate, Biden said he supported a commission on reparations.”); Madeline Holcombe, California Passes a First-of-Its-Kind Law to Consider Reparations for Slavery, CNN (Oct. 1, 2020, 8:27 AM), https://www.cnn.com/2020/10/01/us/california-bill-slavery-reparations-trnd/index‌.html [https://perma.cc/5BP9-FW6D] (describing California Governor Gavin Newsom’s support for a statewide reparations committee); Adam Beam, 11US Mayors Pledge to Pay Reparations for Slavery to Small Groups of Black Residents, USA Today (June 20, 2021, 1:35 PM), https://www.usatoday.com/story/news/nation/2021/06/19/reparations-slavery-pled‌ged-11-us-mayors-pilot-program/7753319002/ [https://perma.cc/G92D-68RM].Show More But while leaders in state and national governments later hedged on those commitments,7 7.See, e.g., Daniels, supra note 6; Jeremy B. White, Cash for Slavery Reparations in California Draws Cool Response from Newsom, Politico (May 10, 2023, 1:23 PM), https://‌www.politico.com/news/2023/05/10/slavery-reparations-california-newsom-00096211 [https://perma.cc/MM9Y-ME85].Show More city officials capitalized on the movement’s momentum and became the first governments in the country to seriously attempt reparations. Today, a handful of American cities are already administering reparatory programs;8 8.See, e.g., Evanston Local Reparations, City of Evanston, https://www.cityofevanston.org‌/government/city-council/reparations [https://perma.cc/U8RA-8V44] (last visited Aug. 30, 2024).Show More many others have established task forces to lay the groundwork for their own programs.9 9.See, e.g., Community Reparations Commission, City of Asheville, https://www.asheville‌nc.gov/department/city-clerk/boards-and-commissions/reparations-commission/ [https://per‌ma.cc/BD4Z-L5NM] (last updated Aug. 15, 2024).Show More

In this Note, I argue that cities both can and should adopt reparatory policies. City government—not state or federal—is the best venue for achieving both effective and constitutional reparations. In Part I, I review the various definitions of reparations, survey the landscape of current city reparations programs, and consider evidence of those programs’ success. In Part II, I argue that cities are the best venues for reparations for three principal reasons. First, these reasons are normative, because city government is proximate, responsive, and capable of unique policy innovation. Next, they are pragmatic, because cities enjoy supportive political coalitions that become improbable at the state and federal levels. And finally, these reasons are constitutional, because race-based programs like reparations must connect to a historic harm “with particularity” to pass legal muster, which cities are uniquely well-suited to do. In Part III, I suggest several practical considerations for cities seeking to craft their own reparations policies—principal among them, financing their program and avoiding interference by the state in which they sit.

It is prudent to acknowledge that this Note is grounded in one fundamental principle: reparations are morally appropriate. I do not waive this debate lightly.10 10.Much has been said already about the need for reparations, but the debate continues. For arguments in favor of reparations, see Coates, supra note 3. See generally Susan S. Kuo & Benjamin Means, A Corporate Law Rationale for Reparations, 62 B.C. L. Rev. 799 (2021) (arguing that the corporate law model can bolster the argument for reparations and responding to the objection that individuals are not personally responsible for slavery and Jim Crow laws); Joyce Hope Scott, Reparations, Restitution, and Transitional Justice: American Chattel Slavery & Its Aftermath, A Moral Debate Whose Time Has Come, 39 Wis. Int’lL.J. 269 (2022) (arguing for slavery reparations to acknowledge and redress the civil and human rights violations of slavery and beyond). For arguments against the moral and legal propriety of reparations, see Richard A. Epstein, The Case Against Black Reparations, 84 B.U. L. Rev. 1177 (2004) (contending that reparations will not work as a legal matter); Gregory Kane, Comment, Why the Reparations Movement Should Fail, 3 U. Md. L.J. Race, Religion, Gender & Class 189 (2003) (arguing that reparations are not the proper vehicle for repairing historic harms to Black Americans).Show More My argument, however, is responsive to the question of where reparations should occur, not why they should—though I hope that place-based arguments will speak indirectly to the normative value of reparations themselves. In short, my argument is rooted in a belief that the moral propriety of reparations cannot, and indeed must not, be divorced from how they are achieved and where they occur—but because there has been much written on the former, I turn my attention instead to the latter.

  1.  Gary B. Nash, Warner Mifflin: Unflinching Quaker Abolitionist 101–02 (Daniel K. Richter, Kathleen M. Brown, Max Cavitch & David Waldstreicher eds., 2017). ↑
  2.  William A. Darity Jr. & A. Kirsten Mullen, From Here to Equality: Reparations for Black Americans in the Twenty-First Century 9 (2d ed. 2020). ↑
  3.  Many credit Ta-Nehisi Coates’s groundbreaking 2014 article The Case for Reparations with popularizing the idea of modern American reparations. See Jonathan Capehart, How Ta-Nehisi Coates Turned Reparations from a Punchline into a Policy Objective, Wash. Post (Mar. 20, 2019, 3:25 PM), https://www.washingtonpost.com/opinions/2019/03/20/how-ta-nehisi-co‌ates-turned-reparations-punchline-into-policy-objective/ [https://perma.cc/D2AL-BURY]; Ta-Nehisi Coates, The Case for Reparations, The Atlantic (June 2014), https://www.theatlanti‌c.com/magazine/archive/2014/06/the-case-for-reparations/361631/ [https://perma.cc/5XHN-8WW8]. ↑
  4.  See Ashley V. Reichelmann & Matthew O. Hunt, How We Repair It: White Americans’ Attitudes Toward Reparations, Brookings Inst. (Dec. 8, 2021), https://www.brookings.edu/arti‌cles/how-we-repair-it-white-americans-attitudes-toward-reparations/ [https://perma.cc/5KB9‌-XSXX] (noting that white American support for cash reparations grew from 6% in 2014 to 28% in 2021, an increase of over 300%). ↑
  5.  Lauren Gambino, Calls for Reparations Are Growing Louder. How Is the US Responding?, The Guardian (June 20, 2020, 5:00 AM), https://www.theguardian.com/world/‌2020/jun/20/joe-biden-reparations-slavery-george-floyd-protests [https://perma.cc/FE3T-GY‌RA]. ↑
  6.  See, e.g., Eugene Daniels, Biden Privately Tells Lawmakers Not to Expect Much on Reparations Legislation, Politico (June 2, 2021, 1:46 PM), https://www.politico.com/news/20‌21/06/02/biden-reparations-tulsa-491607 [https://perma.cc/4B27-WBXU] (“As a candidate, Biden said he supported a commission on reparations.”); Madeline Holcombe, California Passes a First-of-Its-Kind Law to Consider Reparations for Slavery, CNN (Oct. 1, 2020, 8:27 AM), https://www.cnn.com/2020/10/01/us/california-bill-slavery-reparations-trnd/index‌.html [https://perma.cc/5BP9-FW6D] (describing California Governor Gavin Newsom’s support for a statewide reparations committee); Adam Beam, 11 US Mayors Pledge to Pay Reparations for Slavery to Small Groups of Black Residents, USA Today (June 20, 2021, 1:35 PM), https://www.usatoday.com/story/news/nation/2021/06/19/reparations-slavery-pled‌ged-11-us-mayors-pilot-program/7753319002/ [https://perma.cc/G92D-68RM]. ↑
  7.  See, e.g., Daniels, supra note 6; Jeremy B. White, Cash for Slavery Reparations in California Draws Cool Response from Newsom, Politico (May 10, 2023, 1:23 PM), https://‌www.politico.com/news/2023/05/10/slavery-reparations-california-newsom-00096211 [https://perma.cc/MM9Y-ME85]. ↑
  8.  See, e.g., Evanston Local Reparations, City of Evanston, https://www.cityofevanston.org‌/government/city-council/reparations [https://perma.cc/U8RA-8V44] (last visited Aug. 30, 2024). ↑
  9.  See, e.g., Community Reparations Commission, City of Asheville, https://www.asheville‌nc.gov/department/city-clerk/boards-and-commissions/reparations-commission/ [https://per‌ma.cc/BD4Z-L5NM] (last updated Aug. 15, 2024). ↑

  10.  Much has been said already about the need for reparations, but the debate continues. For arguments in favor of reparations, see Coates, supra note 3. See generally Susan S. Kuo & Benjamin Means, A Corporate Law Rationale for Reparations, 62 B.C. L. Rev. 799 (2021) (arguing that the corporate law model can bolster the argument for reparations and responding to the objection that individuals are not personally responsible for slavery and Jim Crow laws); Joyce Hope Scott, Reparations, Restitution, and Transitional Justice: American Chattel Slavery & Its Aftermath, A Moral Debate Whose Time Has Come, 39 Wis. Int’l

    L.J. 269 (2022) (arguing for slavery reparations to acknowledge and redress the civil and human rights violations of slavery and beyond). For arguments against the moral and legal propriety of reparations, see Richard A. Epstein, The Case Against Black Reparations, 84 B.U. L. Rev. 1177 (2004) (contending that reparations will not work as a legal matter); Gregory Kane, Comment, Why the Reparations Movement Should Fail, 3 U. Md. L.J. Race, Religion, Gender & Class 189 (2003) (arguing that reparations are not the proper vehicle for repairing historic harms to Black Americans). ↑

Disrupting Election Day: Reconsidering the Purcell Principle as a Federalism Doctrine

The Purcell Principle—the doctrine that courts should refrain from changing election rules during the period of time close to an election—has long been misconstrued. Where the Principle operates, it creates a near-categorical bar to federal judicial relief in the upcoming election cycle; the provisions of federal law that would normally safeguard voting rights, govern redistricting, and supervise how a state can conduct its elections are paralyzed until after election day. Born and raised on the shadow docket, the Principle has been underdeveloped by the Supreme Court. The Court has provided little guidance as to what triggers the Principle or how it will be applied in future cases. And, in recent years, the doctrine has become increasingly powerful in shaping election law. With the 2024 elections quickly approaching, this Note seeks to shed light on Purcell.

The goals of this Note are twofold. First, I suggest that courts and scholars have been thinking about Purcell incorrectly. I argue that Purcell cannot be justified on the grounds of preventing voter confusion—as the case law and scholarship have suggested—but instead is better explained by federalism. Under this conception, the Court’s historic applications of the doctrine make more sense. Second, I provide a new framework for understanding what triggers Purcell. In deciding whether the Purcell Principle should be applied, courts would reach more consistent, analytically sound results by asking whether judicial intervention would disrupt a state’s administration of its elections. I provide four conditions for courts to consider in determining whether injunctive relief is disruptive. But these conditions can also provide insight to future litigants making decisions about where, when, and how to bring their election claims to avoid running into Purcell’s snare.

Introduction

On January 24, 2022, two decisions1 1.Singleton v. Merrill, 582 F. Supp. 3d 924, 936 (N.D. Ala. 2022) (per curiam),aff’d sub nom. Allen v. Milligan, 143 S. Ct. 1487 (2023); Caster v. Merrill, No. 21-cv-01536, 2022 WL 264819, at *3 (N.D. Ala. Jan. 24, 2022), aff’d sub nom. Allen, 143 S. Ct. 1487.Show More of the U.S. District Court for the Northern District of Alabama held that the districting plan adopted by the State of Alabama for its 2022 congressional elections was “substantially likely” to violate Section 2 of the Voting Rights Act (“VRA”).2 2.Singleton, 582 F. Supp. 3d at 936.Show More The court preliminarily enjoined Alabama from using that map in the forthcoming election and required the state legislature to enact a new plan with a second Black-majority congressional district.3 3.Id.Show More

Two weeks later, and some nine months before the general election, however, the U.S. Supreme Court stayed the district court’s decision, authorizing Alabama to nevertheless move forward with its tarnished map in November.4 4.Merrill v. Milligan, 142 S. Ct. 879, 879 (2022) (mem.).Show More The only rationale provided for this stay came not from the Court—which issued an unexplained, unsigned order on its shadow docket5 5.Id. Professor William Baude coined the term “shadow docket” to describe “everything other than the Court’s ‘merits docket.’” Stephen Vladeck, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic, at xii (2023); see also William Baude, Foreword: The Supreme Court’s Shadow Docket, 9 N.Y.U. J.L. & Liberty 1, 1 (2015) (pointing to “a range of orders and summary decisions that defy its normal procedural regularity”).Show More—but a concurrence from Justice Kavanaugh.6 6.Merrill, 142 S. Ct. at 879–82 (Kavanaugh, J., concurring in grant of applications for stays, joined by Alito, J.).Show More His basis for lifting the injunction rested on the Purcell Principle, a “bedrock tenet of election law” instructing that “federal district courts ordinarily should not enjoin state election laws in the period close to an election” and “federal appellate courts should stay injunctions when . . . lower federal courts contravene that principle.”7 7.Id. at 879–80.Show More

The effect of the Court’s order was to allow the map to apply to the 2022 elections, but with future elections governed by its decision on the merits.8 8.Id. at 882.Show More The map, enacted by a Republican-controlled legislature and signed by a Republican governor,9 9.Caster v. Merrill, No. 21-cv-01536, 2022 WL 264819, at *14–15 (N.D. Ala. Jan. 24, 2022); Brian Lyman, Gov. Kay Ivey Signs Off on Alabama Congressional, Legislative, SBOE Maps for 2022, Montgomery Advertiser (Nov. 4, 2021, 3:30 PM), https://www.montgomery‌advertiser.com/story/news/2021/11/03/alabama-congressional-state-house-maps-2022-heade‌d-gov-kay-ivey/6258353001/ [https://perma.cc/RBY9-WLDR].Show More produced a safe Republican seat as opposed to one that likely would have elected a Democrat.10 10.Melissa Murray & Steve Vladeck, The Supreme Court’s Voting Rights Act Ruling Is No Victory for Democracy, Wash. Post (June 8, 2023, 9:28 PM), https://www.washingtonpost.‌com/opinions/2023/06/08/supreme-court-alabama-redistricting-voting-rights-act/ [https://per‌ma.cc/EB4X-9HYG].Show More So on election day—as expected without the additional Black-majority district—six Republicans and one Democrat were elected to the U.S. House of Representatives from Alabama.11 11.State of Ala., Canvass of Results: General Election, November 8, 2022, at 15–28 (2022), https://www.sos.alabama.gov/sites/default/files/election-data/2022-11/Final%20Canvass%2‌0of%20Results%20%28canvassed%20by%20state%20canvassing%20board%2011-28-2022‌%29.pdf [https://perma.cc/5GRV-D9GD].Show More

But months after the election had been held, the Supreme Court reversed course. A majority affirmed the district court’s decisions and agreed that Alabama’s plan was indeed unlawful.12 12.See Allen v. Milligan, 143 S. Ct. 1487, 1498 (2023).Show More As a result, the invocation of Purcell provided the State with a one-time get-out-of-jail-free card; the Court allowed Alabama to use its map in the 2022 midterms before an adverse decision later on the merits. Scholars have criticized the Court’s use of the Purcell Principle—both on theoretical grounds and its application in this case specifically.13 13.See Vladeck, supra note 5, at 226–27 (arguing that the Court has applied Purcell “inconsistently, and in a way that outwardly favors Republicans far more often than it does Democrats”). See generally Steve Vladeck, 31. Emergency Applications and the Merits, One First (June 12, 2023), https://stevevladeck.substack.com/p/31-emergency-applications-and-the [https://perma.cc/XT2Q-LLAT]; Ruoyun Gao, Note, Why the Purcell Principle Should Be Abolished, 71 Duke L.J. 1139 (2022); Harry B. Dodsworth, The Positive and Negative Purcell Principle, 2022 Utah L. Rev. 1081; Richard L. Hasen, Reining in the Purcell Principle, 43 Fla. St. U. L. Rev. 427 (2016); Michael T. Morley, Election Emergencies: Voting in Times of Pandemic, 80 Wash. & Lee L. Rev.359, 425–28 (2023); Wilfred U. Codrington III, Purcell in Pandemic, 96 N.Y.U. L. Rev. 941 (2021).Show More Indeed, some have even argued that the Republican Party owes its control of the House of Representatives in the 118th Congress to the Supreme Court’s intervention in redistricting actions like this one leading up to the 2022 elections.14 14.Murray & Vladeck, supra note 10.Show More

That the Purcell Principle is controversial is perhaps unsurprising. When the Principle operates, it creates a “presumptive categorical bar”15 15.Morley, supra note 13, at 427; see also Hasen, supra note 13, at 443 (referring to Purcell as “a per se rule to not allow last-minute judicial changes to election rules”). Justice Kavanaugh has also recognized that the “Court’s opinions, including Purcell itself, could be read to imply that the principle is absolute and that a district court may never enjoin a State’s election laws in the period close to an election.” Merrill v. Milligan, 142 S. Ct. 879, 881 (2022) (Kavanaugh, J., concurring in grant of applications for stays, joined by Alito, J.).Show More to federal judicial relief in the upcoming election cycle. The provisions of both federal constitutional and statutory law that would normally protect voting rights, govern redistricting, and otherwise supervise how a state can conduct its elections are essentially put on hold until after the election at hand. Given the severity and categorical nature of its effect, great weight is thus placed on what triggers application of the Purcell Principle.

I argue that what should trigger Purcell is disruption to a state’s administration of its elections. This conception is different from that of other scholars and jurists, who claim that the Principle is guided by concerns of voter confusion. But disruption alone does not tell the full story either. Understanding Purcell also requires bringing to light the constitutional theory that is underlying the doctrine: federalism16 16.Federalism can broadly be defined as “[t]he legal relationship and distribution of power between the national and regional governments within a federal system of government, and in the United States particularly, between the federal government and the state governments.” Federalism, Black’s Law Dictionary (11th ed. 2019).Show More (as applied here, the idea that decisions about election procedures are primarily the province of the states).

Even though Purcell is supposedly about confusion—indeed, everyone says as much—this Note will demonstrate that rationale does not adequately explain the case law. In practice, the Supreme Court’s applications of the Principle are better rationalized by federalism and disruption; both are necessary to trigger Purcell. Viewing Purcell as a part of the Court’s commitment to federalism is important not only to explain when and why the Principle should be invoked, but it also harmonizes this doctrine with the Roberts Court’s jurisprudence in other areas of election law and beyond. Further, because application of the Principle will effectively neuter election law in the federal courts for a given election cycle, my proposed disruption framework is useful to future litigants making strategic decisions about where, when, and how to bring their claims.

On their face, the Supreme Court’s applications of Purcell may seem partisan. Professor Steve Vladeck, for example, has characterized the Purcell Principle as “[h]ow the [c]urrent Court [u]ses the Shadow Docket to [h]elp Republicans.”17 17.Vladeck, supra note 5, at vii. In May 2024, however, the Supreme Court applied Purcell to hand what appeared to be a victory to Democrats—staying a district court injunction that paved the way for Louisiana to use a redistricting map with an additional majority-Black district in November. See Robinson v. Callais, 144 S. Ct. 1171, 1171 (2024) (mem.); Nina Totenberg, Supreme Court Upholds Louisiana Redistricting Plan, NPR (May 15, 2024, 6:44 PM), https://www.npr.org/2024/05/15/1250937356/supreme-court-louisiana-redistricti‌ng [https://perma.cc/E8Y9-RDL8].Show More And Professor Wilfred Codrington has described it as “an empty vessel for unprincipled decisionmaking and inconsistent rulings.”18 18.Codrington, supra note 13, at 941.Show More But this Note suggests there may be an unarticulated rationale that better accounts for the Court’s decisions in this area. In doing so, I do not purport that this is the “true” motivation guiding Purcell or what individual Justices are necessarily thinking. Rather, this Note offers federalism as an alternate, novel ground in a framework that seeks to make the Court’s applications of the Principle more coherent. If you reconsider Purcell as a federalism principle with me and read these cases through the lens of disruption, you just might be disabused of your cynicism.

This Note proceeds in three Parts. Part I introduces the origins of the Purcell Principle and its professed rationales: preventing voter confusion, providing clear guidance to the states, and deferring to the district court. It then surveys the development of the doctrine by reviewing each case in which the Supreme Court has applied the Purcell Principle or otherwise discussed it. Part II then analyzes whether the three rationales announced in Purcell are supported by the subsequent case law. (This Note contends they aren’t.) Having chipped away at those rationales, Part III argues that the Principle is better understood as being justified by the Court’s concerns with federalism. Federalism requires insulating to some degree the ability of the state to dictate the rules that govern its elections. If Purcell is defined by the power of federal courts vis-à-vis the states, the Court’s historic applications of the Principle and the Principle’s limits make more sense. Reconceptualizing the doctrine in this way, I propose a new framework to explain what should trigger Purcell. In deciding whether the Principle ought to be applied, courts would reach more consistent, analytically sound results by asking whether judicial intervention would disrupt a state’s administration of its elections. If an order changing the election rules or procedures would be disruptive, the Principle is invoked and operates as a near-total bar on judicial relief. But where intervention wouldn’t be disruptive, Purcell does not govern and a federal court’s decision to enjoin that state procedure is permissible. I conclude by proposing four conditions necessary for finding disruption, which courts can look to in determining whether the Principle should be applied in a given case.

  1.  Singleton v. Merrill, 582 F. Supp. 3d 924, 936 (N.D. Ala. 2022) (per curiam), aff’d sub nom. Allen v. Milligan, 143 S. Ct. 1487 (2023); Caster v. Merrill, No. 21-cv-01536, 2022 WL 264819, at *3 (N.D. Ala. Jan. 24, 2022), aff’d sub nom. Allen, 143 S. Ct. 1487. ↑
  2.  Singleton, 582 F. Supp. 3d at 936. ↑
  3.  Id. ↑
  4.  Merrill v. Milligan, 142 S. Ct. 879, 879 (2022) (mem.). ↑
  5.  Id. Professor William Baude coined the term “shadow docket” to describe “everything other than the Court’s ‘merits docket.’” Stephen Vladeck, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic, at xii (2023); see also William Baude, Foreword: The Supreme Court’s Shadow Docket, 9 N.Y.U. J.L. & Liberty 1, 1 (2015) (pointing to “a range of orders and summary decisions that defy its normal procedural regularity”). ↑
  6.  Merrill, 142 S. Ct. at 879–82 (Kavanaugh, J., concurring in grant of applications for stays, joined by Alito, J.). ↑
  7.  Id. at 879–80. ↑
  8.  Id. at 882. ↑
  9.  Caster v. Merrill, No. 21-cv-01536, 2022 WL 264819, at *14–15 (N.D. Ala. Jan. 24, 2022); Brian Lyman, Gov. Kay Ivey Signs Off on Alabama Congressional, Legislative, SBOE Maps for 2022, Montgomery Advertiser (Nov. 4, 2021, 3:30 PM), https://www.montgomery‌advertiser.com/story/news/2021/11/03/alabama-congressional-state-house-maps-2022-heade‌d-gov-kay-ivey/6258353001/ [https://perma.cc/RBY9-WLDR]. ↑
  10.  Melissa Murray & Steve Vladeck, The Supreme Court’s Voting Rights Act Ruling Is No Victory for Democracy, Wash. Post (June 8, 2023, 9:28 PM), https://www.washingtonpost.‌com/opinions/2023/06/08/supreme-court-alabama-redistricting-voting-rights-act/ [https://per‌ma.cc/EB4X-9HYG]. ↑
  11.  State of Ala., Canvass of Results: General Election, November 8, 2022, at 15–28 (2022), https://www.sos.alabama.gov/sites/default/files/election-data/2022-11/Final%20Canvass%2‌0of%20Results%20%28canvassed%20by%20state%20canvassing%20board%2011-28-2022‌%29.pdf [https://perma.cc/5GRV-D9GD]. ↑
  12.  See Allen v. Milligan, 143 S. Ct. 1487, 1498 (2023). ↑
  13.  See Vladeck, supra note 5, at 226–27 (arguing that the Court has applied Purcell “inconsistently, and in a way that outwardly favors Republicans far more often than it does Democrats”). See generally Steve Vladeck, 31. Emergency Applications and the Merits, One First (June 12, 2023), https://stevevladeck.substack.com/p/31-emergency-applications-and-the [https://perma.cc/XT2Q-LLAT]; Ruoyun Gao, Note, Why the Purcell Principle Should Be Abolished, 71 Duke L.J. 1139 (2022); Harry B. Dodsworth, The Positive and Negative Purcell Principle, 2022 Utah L. Rev. 1081; Richard L. Hasen, Reining in the Purcell Principle, 43 Fla. St. U. L. Rev. 427 (2016); Michael T. Morley, Election Emergencies: Voting in Times of Pandemic, 80 Wash. & Lee L. Rev.

    359, 425–28 (2023); Wilfred U. Codrington III, Purcell in Pandemic, 96 N.Y.U. L. Rev. 941 (2021). ↑

  14.  Murray & Vladeck, supra note 10. ↑
  15.  Morley, supra note 13, at 427; see also Hasen, supra note 13, at 443 (referring to Purcell as “a per se rule to not allow last-minute judicial changes to election rules”). Justice Kavanaugh has also recognized that the “Court’s opinions, including Purcell itself, could be read to imply that the principle is absolute and that a district court may never enjoin a State’s election laws in the period close to an election.” Merrill v. Milligan, 142 S. Ct. 879, 881 (2022) (Kavanaugh, J., concurring in grant of applications for stays, joined by Alito, J.). ↑
  16.  Federalism can broadly be defined as “[t]he legal relationship and distribution of power between the national and regional governments within a federal system of government, and in the United States particularly, between the federal government and the state governments.” Federalism, Black’s Law Dictionary (11th ed. 2019). ↑
  17.  Vladeck, supra note 5, at vii. In May 2024, however, the Supreme Court applied Purcell to hand what appeared to be a victory to Democrats—staying a district court injunction that paved the way for Louisiana to use a redistricting map with an additional majority-Black district in November. See Robinson v. Callais, 144 S. Ct. 1171, 1171 (2024) (mem.); Nina Totenberg, Supreme Court Upholds Louisiana Redistricting Plan, NPR (May 15, 2024, 6:44 PM), https://www.npr.org/2024/05/15/1250937356/supreme-court-louisiana-redistricti‌ng [https://perma.cc/E8Y9-RDL8]. ↑

  18.  Codrington, supra note 13, at 941. ↑

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