In recent years a new obstacle has risen to litigation over ballot access: the pernicious principle known as the “Purcell Principle” that says courts should not alter ballots too close to an election. In 2022, a U.S. District Court Judge in Florida refused to put the People’s Party candidate for Pasco County Commission on the ballot, partly because “plaintiffs cannot overcome Purcell”. The People’s Party had filed its ballot access lawsuit on June 3, for an election in November, and yet the judge felt the Purcell Principle meant the case had been filed too late.

In 2023, a New Haven Superior Court in Connecticut kept Shafiq Abdussabur, a candidate for Mayor of New Haven, off the Democratic primary ballot, even though he had enough signatures, because the evidence that he had enough signatures had not been presented until August 16, and the primary was on September 12. Abdussabur v Evans, NY-cv–23-6135336. The court ruling against Abdussabur was made on August 23, and the ballots had not yet been printed on that day, except for some absentee ballots.

Yet the Colorado Supreme Court has now decided to remove Donald Trump from the March 5, 2024 ballot, and has said nothing about the Purcell Principle. If the Purcell Principle applies to potential court decisions that put a candidate on the ballot, logically it should apply to court decisions that remove a candidate from a ballot.

If the U.S. Supreme Court reverses the Colorado State Court, that should set a powerful precedent that the Purcell Principle does not apply to adding or subtracting candidates from a ballot.

The origin of the Purcell Principle was a U.S. Supreme Court order in Purcell v Gonzalez, 549 U.S. 1 (2006), in which the issue was whether the Ninth Circuit should have enjoined an Arizona law concerning photo ID on October 5, only a month before the November election.

On December 19, the North Carolina State Board of Elections voted 4-1 to allow former President Donald Trump to appear on the Republican presidential primary ballot. See this story. The Board has three Democrats and two Republicans.

On December 19, the Colorado Supreme Court ruled 4-3 that former President Donald Trump cannot appear on the March 2024 Colorado Republican presidential primary. It also said write-ins for him cannot be counted. Anderson v Griswold, 2023cv-32577. The majority opinion is 132 pages and there are three dissents. One is 25 pages, one is 43 pages, and one is eleven pages. See it here.

The Court stayed its own opinion until January 4, probably because it expects Trump to file an appeal to the U.S. Supreme Court. Assuming he does appeal, and the U.S. Supreme Court takes the case, that will be the first ballot access case the court has accepted since it heard State Board of Elections v Lopez-Torres, which was heard in 2008 and concerned primary ballot access in New York for candidates for delegate to party judicial nominating conventions. In that case the U.S. Supreme Court ruled against the candidate and in favor of the state.

The Colorado Supreme Court majority says that it would be very bad if states were forced to print the names of unqualified cndidates on their ballots, without noting that Colorado twice printed the name of under-age candidates for president or vice-president on the general election ballot (Linda Jenness in 1972 and James B. Cranfill in 1892).

On page 31 the majority opinion says, “Voters no longer choose between slates of electors on Election Day. Instead, they vote for presidential candidates who serve as proxies for their pledged electors.” Logically, there is no difference between voters voting for one set of competing slates of presidential electors on election day, and the Court’s statement that voters vote for presidential candidates who serve as proxies for their electors. The majority’s sentence is meaningless.