ABUSING EMERGENCY POWERS: HOW THE SUPREME COURT DEGRADED VOTING RIGHTS PROTECTIONS DURING THE COVID-19 PANDEMIC AND OPENED THE DOOR FOR ABUSE OF STATE POWER.

• Author: Vazquez, Andrew

Introduction 968 I. The Purcell Principle and State Emergency Powers 974 A. Judicial Analysis of Election Laws and the Purcell Principle 974 i. Jurisprudence Surrounding Election Laws and Requests for Preliminary Relief 975 ii. How Purcell Altered the Preliminary Injunctive Relief Analysis 977 iii. The Development of the Purcell Principle Through the "Shadow Docket" 978 B. The State Emergency Powers Doctrine and Its Relevance to Election Law 982 i. Emergency Powers in Constitutional Law 983 ii. When Emergencies Impact Elections 987 iii. State Responses to COVID-19 990 II. Requests for Preliminary Relief from Election Laws During the COVID-19 Pandemic 992 A. The Application of the Purcell Principle During the COVID-19 Pandemic 992 i. Republican National Committee v. Democratic National Committee 993 ii. Merrill v. People First of Alabama 994 B. The Combination of the Purcell Principle and the State Emergency Powers Doctrine 996 i. Andino v. Middleton 997 ii. Democratic National Committee v. Wisconsin State Legislature 998 iii. Moore v. Circosta 999 iv. Looking Back at RNC and Merrill 1000 C. Lower Court Usage of the Purcell Principle 100? D. A Confusing, Gaping Hole in Voting Rights Protections 1004 III. The Combination of Purcell and State Emergency Powers Is Ripe for Abuse 1008 A. Fixing the Purcell Principle 1009 B. Courts Should Limit the Purcell Principle and State Emergency Powers 1011 C. Analyzing the Georgia 2022 Election Hypothetical Under the Egregious Abuse of State Emergency Power Framework 1014 Conclusion 1018 Appendix 1020 INTRODUCTION

In 2020, the COVID-19 pandemic devastated communities across the United States. (1) The deadly disease infected approximately 20 million and killed more than 300,000 people as of December 31, 2020. (2) In the same year, Joe Biden and Donald Trump competed in the presidential election, (3) while down the ballot, hundreds of politicians competed in House, Senate, state, and local elections. (4) In the months leading up to Election Day, state officials struggled to implement safe procedures to facilitate voting. (5) Although the majority of U.S. citizens have historically voted in person and on Election Day, (6) election officials sought to provide alternative access to the ballot box while also minimizing voters' exposure to COVID-19. (7) In many states, these changes included expanded access to absentee ballots and extended early voting, resulting in record-breaking voter turnout in the 2020 general election. (8)

As a result of the November election, Democrat Joe Biden won the presidency, and the Democrats maintained control of the House of Representatives. (9) Additionally, Democrats won 48 Senate seats, and Republicans won 50 Senate seats. (10) In Georgia, both Senate seats went to runoff elections, which occurred on January 5, 2021. (n) The runoff elections determined the control of the Senate. (12) If the Republican candidates won one or both of the seats, the Republicans would have control of the Senate; (13) if the Democrats won both seats, the Democrats would have control, with Vice President Kamala Harris casting the deciding vote. (14) Control of the Senate was momentously important for both parties. (15) A Democratic majority in the Senate would enable then-President-elect Joe Biden to provide people much-needed relief from COVID-19. (16) Alternatively, a Republican-controlled Senate could block the Democratic agenda, just as it did under President Barack Obama. (17) Pollsters expected the elections to be particularly close and hypothesized that a few hundred voters could decide the fate of the Senate. (18) In the end, both Georgia Democratic Senators narrowly won, giving Democrats control over the Senate. (19)

For the November 2020 general election, Georgia's Secretary of State made significant efforts to facilitate early and absentee voting. (20) For example, the state mailed every voter no-excuse absentee ballots and placed absentee ballot drop-off boxes all across the state. (21) This resulted in unprecedented absentee voter turnout. (22) Additionally, election administrators opened numerous early in-person polling sites to reduce lines and crowding on Election Day, (23) producing record voter turnout and showing that early voting was one of the few safe and secure voting procedures for many voters. (24)

Despite the pandemic worsening in the two months between the general election and the runoff elections, Georgia election officials attempted to eliminate no-excuse absentee voting (25) and restricted access to early voting for the runoff elections. (26) In Cobb County, for the runoff elections, election administrators eliminated 6 of the 11 early voting sites that serviced its 537,000 voters. (27) Yet, early voting was especially important in Cobb County, where voters experienced some of the longest early voting lines in Georgia during the general election. (28) Cobb County had initially planned to have nine early voting sites but increased it to 11 after record-breaking in-person voter turnout and extremely long lines at the start of early voting. (29) Even with 11 poll sites, voters waited as long as ten hours at early voting sites. (30)

To ensure that Cobb County's new poll closures for the runoff elections did not inhibit marginalized voters from accessing the franchise, the National Association for the Advancement of Colored People Legal Defense and Education Fund (NAACP LDF) and other civil rights groups sent an open letter on December 7 (December 7 Letter) to the county's election officials. (31) The letter asserted that the poll site closures "disproportionately impacted] Cobb County's Black and Latinx voters and expose[d] Cobb County to litigation." (32) Three of the closures were in South Cobb, where many Black and Latinx voters are concentrated. (33) These early voting changes would make it "difficult, if not impossible, for many Black and Latinx voters" to cast their ballots before Election Day. (34)

Cobb County officials contended that they closed the polling sites because they did not have enough poll workers due to COVID-19, the holiday season, and the amount of work required. (35) However, the December 7 Letter indicated that there were enough poll workers to staff the early poll sites and offered to help train and recruit additional poll workers. (36) As a result of mounting pressure, Cobb County officials announced that they would add two early voting sites during the final week of early voting and relocate another polling place to South Cobb. (37) Although the organizations welcomed the additional poll sites, they also stated the response was "insufficient," as Cobb County continued to have near two-hour lines and some of the lowest voter turnout in the state. (38) Importantly, one of the attorneys who drafted the December 7 Letter observed that "[i]t wasn't until there was an overt threat of litigation did the county agree to take steps to mitigate the situation." (39)

Nationwide, voting rights advocates sent similar letters and threats of litigation to protect vulnerable voter populations that did not have the resources to litigate their own claims. (40) However, recent Supreme Court opinions indicate that the threat of litigation over election administration decisions made close to Election Day will soon be moot, even if the claims are meritorious. (41)

As a result of the copious changes to election laws made in response to the pandemic, there was an unprecedented amount of litigation during the 2020 election. (42) The Supreme Court, heavily relying on its 2006 ruling in Purcell v. Gonzalez, (43) gave great deference to state legislatures to administer the 2020 election. (44) This Note explores how the Supreme Court has taken the actual text of the Purcell opinion and morphed it into the Purcell principle, a bright-line rule against judicial intervention in elections close to Election Day. (45) This principle is based on a desire to prevent voter confusion or upset expectations regarding the rules of an election. (46) Reliance on the Purcell principle creates a gap in judicial protections on the right to vote and leaves the door open for abuses of state power. (47)

This Note examines the Court's application of the Purcell principle during the COVID-19 pandemic. Further, this Note identifies the implications the combination of Purcell and the state emergency powers doctrine pose to future elections.

Part I explains the Purcell principle by (1) exploring the Court's initial decision in Purcell and (2) examining how courts applied the Purcell principle in subsequent cases. Part I then discusses executive emergency powers in constitutional and state law, examines examples of recent emergencies affecting elections, and summarizes actions states and cities have taken to combat the COVID-19 pandemic.

Part II analyzes the Supreme Court's reliance on Purcell during the COVID-19 pandemic. Part II explains the intersection of state emergency powers and cases applying the Purcell principle that arose during the 2020 general election. Part II illustrates that the Purcell principle is inconsistently applied by lower courts and leaves a gap in voting rights protections.

Part III then calls on the Supreme Court to clarify the bounds of the Purcell principle to allow for consistent lower-court application. Furthermore, Part III shows the imminent potential for abuse of state emergency powers through a hypothetical scenario. Finally, for challenges to election laws during an emergency, Part III proposes a new framework that would allow plaintiffs to make a showing of egregious abuse of state emergency powers through an unconstitutional manipulation of electoral processes. This Note concludes by applying this new framework to a hypothetical scenario, demonstrating why the Supreme Court must overcome the Purcell principle and state emergency powers.

1. THE PURCELL PRINCIPLE AND STATE EMERGENCY POWERS

   The development of the Purcell...