by Barry Goldman
The Wild Duck is an old poker story. It has other names. Lollapalooza is one. But the way I heard it was Wild Duck.
It seems a stranger came to town and got in a back-room poker game with some of the local boys. After an hour or two he drew a full house and bet it hard. A guy on the other side of the table raised. The stranger raised him back. Finally, he called, lay down his full house, and reached for the pot. The other guy said, “Not so fast, stranger, I’ve got a Wild Duck” and he turned over a pair of fours and a three, six, nine of different suits.
The rest of the boys at the table cheered “Wild Duck! Wild Duck!” and raised their glasses. “What the hell is a Wild Duck?” the stranger cried. The bartender came over, put a large hand on the stranger’s shoulder and said, “A Wild Duck beats anything. House rules.”
The stranger considered his options and sat back down. After another hour or two he looked at his hand and saw a pair of fours and a three, six, nine of different suits. He bet it hard. Another guy raised. The stranger raised him back and the other guy raised again. The stranger went all in. He lay down his Wild Duck with a flourish and reached for the pot. The room was silent.
The bartender came over again and pointed to a small sign on the wall behind the bar. It said: A Wild Duck is only good once a night.
The Purcell Principle comes from a 2006 Supreme Court case called Purcell v. Gonzalez. In Purcell the State of Arizona had enacted a law intended to “combat voter fraud by requiring voters to present proof of citizenship when they register to vote and to present identification when they vote on election day.” Plaintiffs sued on the grounds that the new requirements violated the Constitution. The Court of Appeals found for the plaintiffs and prevented the new law from going into effect. The Supreme Court stayed the Court of Appeals decision on the grounds that it was too close to the election to change the rules and voters might be confused.
This was odd. As Edwin Chemerinsky pointed out, “Why should unconstitutional or illegal restrictions on voting be allowed just because the challenge is being heard soon before the election?” But there it is. Purcell stands for the proposition that “lower federal courts should ordinarily not alter the election rules on the eve of an election.”
The Supreme Court has invoked the principle several times in subsequent cases. In Republican National Committee v. Democratic National Committee, for example, the Court refused to allow the federal district court in Wisconsin to extend the dates for receipt of absentee ballots. This was in the teeth of the COVID pandemic. The lower court found the circumstances to be sufficiently extraordinary to allow a degree of flexibility. No, said the Supreme Court:
Extending the date by which ballots may be cast by voters – not just received by the municipal clerks but cast by voters – for an additional six days after the scheduled election day fundamentally alters the nature of the election.
Justice Ginsburg dissented:
The Court’s order requires absentee voters to postmark their ballots by election day, April 7 – i.e., tomorrow – even if they did not receive their ballots by that date. This is a novel requirement.… While I do not doubt the good faith of my colleagues, the Court’s order, I fear, will result in massive disenfranchisement. A voter cannot deliver for postmarking a ballot she has not received.
The Court invoked Purcell again in Milligan v. Merrill. Quoting from a law review article by Brittany Carter:
[A] district court in Alabama found that the state legislature designed Alabama’s new congressional district map in a way that diminished Black political power, and ordered the legislature to redraw its map to remedy the violation. Two weeks later, the Supreme Court stayed the district court’s order, allowing Alabama’s congressional elections to proceed under the discriminatory maps.
No one argued the Alabama map was constitutional. This was a shadow docket ruling. But to the extent there was any legal justification provided at all, it was that the unconstitutional map had to be used because it was too close to the election to change.
Then the action moved to Texas and Abbott v. League of United Latin American Citizens. Quoting Chemerinsky:
The Texas legislature, at the urging of President Donald Trump, redrew its congressional districts to attempt to try and create five more districts where Republican candidates are likely to prevail. Governor Greg Abbott signed this into law on August 29, 2025. A lawsuit was immediately filed and a three-judge federal court quickly held a nine-day hearing. On November 18, the court, in a 2-1 160-page decision found that the new districts violated equal protection in their discrimination against Hispanic and Black voters and issued a preliminary injunction against their being used. The court ordered the state to use the map that the Texas Legislature adopted in 2021 for the 2026 midterm elections.
But the Supreme Court stayed this ruling, allowing the gerrymandered districts to be used. Once again, one of the reasons given was the Purcell principle. The court said that the challenge to the new districts came too soon before the election – even though the election was months away.
You may be beginning to see a pattern.
But then we get to Louisiana v. Callais. Much has been written about how Callais completed the evisceration of the Voting Rights Act. I won’t go over that ground here. I just want to point out how the Court applied the Purcell principle. It did not. In fact, Purcell was never even mentioned.
Louisiana wanted to use a new gerrymandered map, and the conservative majority wanted to let it. But the election was not only close, it had already begun. Some 40,000 early votes had already been cast.
You might think the Purcell Principle means the court cannot change the rules. But you would be wrong. Quoting Brittany Carter again:
When the state actively dilutes Black political power to shore up white political power close to an election, it is a matter of state sovereignty to which the federal government must bow. But when the federal government intervenes close to an election to safeguard Black political power, it is an unfair disruption that cannot be tolerated.
As the inimitable Elie Mystal said, “It turns out that this Purcell Principle means it is often too close to the next election to restore Black voting rights, but it is never too late to take them away.”
Like the Wild Duck, the Purcell Principle is whatever the boys in the back room say it is, and it applies whenever they say it applies.
The Lonesome Death of Hattie Carrol is one of the great Bob Dylan songs from the early years. You can listen it here, and I recommend that you do. The last three lines are these:
Oh, but you who philosophize disgrace and criticize all fears
Bury the rag deep in your face
For now’s the time for your tears
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