Supreme Court just revealed it used 'legal fiction' to reshape elections: lawyer

The Supreme Court revealed that a principle it used to rule on election cases was pure "legal fiction," according to one lawyer.

Marc Elias, a lawyer and lead plaintiff in multiple recent redistricting cases, said during a new episode of his "Democracy Docket" podcast that the Supreme Court has relied on the Purcell Principle to adjudicate election cases in the past, but seemed to forget that principle in Louisiana v. Callais. The Purcell Principle states that courts should not change election laws or procedures ahead of a major election.

"In some conceptual sense, [the Purcell Principle] makes sense, but there are two problems," Elias said. "First, it's entirely made up. Congress didn't say there needed to be this doctrine. States have not said there needs to be this doctrine. The Constitution doesn't demand it. No, this is entirely a made-up legal fiction by the Supreme Court."

"The second is how it's been implemented, or shall we say, how it's been wielded," he continued.

Elias also argued that Purcell seems to stand at odds with the Callais case, in which the Supreme Court ruled that state legislators can gerrymander their maps for partisan purposes, even if it results in a racially discriminatory outcome.

The Supreme Court also seemed content to turn the other cheek as states seemingly violated Purcell following the Callais decision, Elias argued.

For instance, the two states that immediately moved to redraw their maps following the decision — Alabama and Louisiana — had elections approaching, Elias said. Louisiana Gov. Jeff Landry, a Republican, issued a state of emergency to halt an ongoing election so the state could redraw its map. Alabama was just 10 days away from an election when it redrew its maps, Elias noted.

That move revealed just how hollow the Purcell Principle really is, Elias said.

"It's just kind of what the Supreme Court thinks at any one time about whether we're too close or not too close; whether there'll be disruption or not disruption; whether it will be unfair or fair," he said.