Pursuant to the so-called Purcell doctrine, lower federal courts (and perhaps the U.S. Supreme Court itself) are supposed to refrain from issuing remedies that would alter the rules for election administration in the run-up to Election Day. Whether or not the Purcell rule’s purported justifications are persuasive (e.g., concerns about voter confusion, candidate and campaign expectations, smooth operation of election logistics), one tremendously problematic entailment of Purcell is that elections are held (and candidates are elected and policies are determined) even when serious doubt exists about the legality of the contests under federal statutes and the Constitution. Because of these deleterious consequences, we seek, making use of “compensation” theory, to identify ways that justiciability doctrines (e.g., mootness, first- and third-party standing, ripeness, vagueness, and overbreadth) and related constraints on access to federal fora can and should be overtly modified to offset Purcell’s undesirable effects and to facilitate earlier and easier federal adjudication and remediation in election-related challenges. It turns out the foundation of such an election exceptionalism regarding access to federal courts has been partially (if inconsistently and haphazardly) laid by the Supreme Court, but the Court has never meaningfully tried to tie the various foundation beams together in a structurally sound and coherent way, much less describe and explain what the doctrinal edifice should look like and why. That is what we seek to do in this Article.
* Distinguished Professor of Law, University of California, Davis School of Law; Visiting Professor of Law and former Dean, University of Illinois at Urbana-Champaign College of Law.
** Branch Rickey Collegiate Professor of Law and former Dean, University of Michigan Law School. Professor Caminker is currently on academic leave serving as a Special Assistant United States Attorney in the Eastern District of Michigan. Most of Professor Caminker’s work on this piece was completed before he assumed his current Special Assistant role, and in any event the views expressed in this Article do not necessarily represent the views of the U.S. Attorney’s Office or the United States.
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