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Equitable Balancing in the Purcell Framework


According to the Voting Rights Act, states must not racially dis-criminate when they draw legislative districts. Federal trial courts frequently issue preliminary injunctions to prevent states from drawing districts at the eleventh hour to shield themselves from anti-discrimination laws.

In 2006, the Supreme Court held that federal courts should generally not issue preliminary injunctions against state election laws “in the period close to an election.” Justice Kavanaugh reaffirmed this theory in 2022, and some lower courts have begun to use the test he proposed. Lower courts have struggled to apply this principle consistently, and they disagree about what it means. All the while, states are allowed to conduct elections governed by illegal statutes, leading to the disenfranchisement of marginalized people.

This Article argues that, aside from being unworkable, this Supreme Court precedent is also wrong as a matter of law. This Article proposes a new test, based on an originalist interpretation of the law, that would allow lower courts greater flexibility to check unlawful and discriminatory state action.