It is known in election law as the “Purcell principle” — an ill-defined Supreme Court dictum that courts should not order election changes close to the election itself lest it create confusion. Exactly how close is too close, and even what constitutes a change, remains up for debate.
And in this weird pandemic year, election disputes continue to be fought out in courts across the nation less than a week before Nov. 3.
On Tuesday a federal appellate panel heard arguments in a case brought by two men who would be members of Minnesota’s Electoral College delegation should Donald Trump win the state. James Carson and Eric Lucero argue that a consent decree entered months ago in a Minnesota state court — implicitly agreed to by the state Republican Party and the Trump campaign — illegally extends the deadline for absentee ballots to arrive at county election offices.
A lower court had earlier rejected that suit, holding both that Carson and Lucero lack standing and that changing the deadline more than a month after the start of early voting would violate the Purcell principle.
The rules, as they stand under the consent degree, allows absentee votes postmarked by Nov. 3 that arrive by Nov. 10 to be counted. Considering the reports that the U.S. Postal Service is once again seeing its on-time delivery rates slipping, that extension may matter.
Earlier this week the Supreme Court rejected a somewhat similar extension in Wisconsin by a federal court. One difference between the two cases is that the Minnesota’s extension came out of state court; another is that the Minnesota extension has been in place for months, and this reversal would come literally days before Nov. 3.
But that 8th Circuit chose to hear the case on the merits rather than use the issue of standing to dodge the issue suggests that it may change the rules as the votes come in. The wisest move for the panel, and the one that follows the spirit of the Purcell principle, would be to agree with U.S. District Judge Nancy Brasel on the status of the plaintiffs and let the extension stand.
And the wisest move for those Minnesota absentee voters still hanging onto their ballots would be to fill it out and take it to their county election offices themselves rather than rely on the Postal Service and the federal courts.