Election-related litigation causes much angst in today’s highly partisan environment. This is especially true when the litigation is not resolved before an election occurs. When election-related litigation is still pending in the days close to an election, the courts must decide, often in the context of an application for a stay, under which set of regulations the election will proceed. The Supreme Court’s decision in Purcell v. Gonzalez signaled to lower courts that they should not change election regulations close in time to the election, but the Court failed to answer two follow-on issues that have arisen from Purcell. First, courts are unsettled about how close to the election is too close to change a law or regulation; second, they are unsure about how Purcell interacts with the Nken factors that otherwise govern how and when stays should be granted.
This Comment examines this muddled area of the law through the lens of North Dakota’s 2018 election cycle. Native American plaintiffs had procured a preliminary injunction against an allegedly discriminatory North Dakota election law, and the primary election proceeded under the terms of that injunction. But just six weeks before the general election, the Eighth Circuit stayed that injunction, and the Supreme Court refused to vacate that stay. The various decisions in Brakebill v. Jaeger illustrate both the chaos that can ensue when election regulations are changed too close to an election and the reality that the Supreme Court’s current processes, including its extensive use of the “shadow docket,” do not facilitate the development of unified jurisprudence in the lower courts regarding the grant or denial of a stay. This Comment suggests possibilities for reform that will work to restore voter confidence in the judiciary when it settles future election-related disputes.
