The Election Has Already Started

A federal judge refused on Monday 19 October to block North Carolina’s new rules for spoiling flawed absentee ballots, because voting in the 3 November election had already begun and the challengers had waited too long to sue.

U.S. District Judge Thomas D. Schroeder of the Middle District of North Carolina denied the motion for a preliminary injunction in a 72-page memorandum opinion and order in North Carolina Alliance for Retired Americans v. North Carolina State Board of Elections, No. 1:26-cv-965. The rules stay in force for this election.

The order does not hold that the rules are lawful. It finds that the plaintiffs have not made the “clear showing” of likely success that a preliminary injunction requires, and its last footnote says so in as many words: “This is a preliminary determination that is not an ultimate determination of the merits.” What decided the motion first was the calendar.

What rules were challenged?

Two provisions of a State Board of Elections directive, the 2026 Numbered Memo issued on 4 September, which the plaintiffs call the Sealing Requirement and the Signature Verification Requirement. The plaintiffs are the North Carolina Alliance for Retired Americans, North Carolina Asian Americans Together, Down Home North Carolina and two voters. The North Carolina Republican Party and the Republican National Committee intervened to defend the rules.

A North Carolina absentee ballot travels in two envelopes: an outer envelope and an inner one the statute calls the container-return envelope. Under the 2024 memo, as the opinion describes it, a ballot was spoiled only if both envelopes arrived unsealed or looked opened and re-sealed; if either was sealed, the ballot counted. Under the 2026 memo, an unsealed inner envelope requires the ballot to be spoiled and reissued “regardless of how the outer envelope is sealed.” A re-sealed inner envelope inside a properly sealed outer one is a curable irregularity, fixed by an attestation. On signatures, the new memo tells county boards to check that the signature is the name of the voter assigned that application number, and it removed the earlier line that “[t]he voter’s signature on the envelope shall not be compared with the voter’s signature in their registration record.”

The rules have a history that matters to the timing argument. After a consent judgment in litigation brought by the Republican parties, the Board issued a declaratory ruling on 2 February 2026 that the 2024 guidance was “not correct.” It proposed rules on 13 April and adopted them in July. The Rules Review Commission approved them on 27 August but received enough objections to require legislative approval, and the Board told the court the General Assembly will not meet to give it until after the 2026 election. The 4 September memo carries the substance of those rules in the meantime.

What is the Purcell principle?

It is the Supreme Court’s instruction, named for Purcell v. Gonzalez (2006), that lower federal courts should ordinarily not change election rules on the eve of an election. Schroeder quotes the Court’s warning that “late-breaking, court-ordered rule changes can ‘result in voter confusion and consequent incentive to remain away from the polls.’”

He addresses it first, ahead of the usual injunction factors. The Board told the court that “[a]s of the morning of October 8, 2026, approximately 123,828 ballots have been issued,” and at the 14 October hearing it said 31,582 had been cast. In-person early voting began on 15 October. Those are the Board’s figures as the opinion records them.

The plaintiffs argued that Purcell is about confusing voters, and that an injunction would ask nothing new of them. The court answered with the problem of ballots already handled. Ballots have been reviewed by all 100 county boards under the new memo, and an injunction would require them to revisit rejected ballots whose voters may since have voted again. “If an absentee ballot was spoiled because of a sealing issue, for example, which ballot should be counted?” the opinion asks. It finds the case “not meaningfully different” from Andino v. Middleton and Democratic National Committee v. Wisconsin State Legislature, the 2020 absentee-ballot cases in which the Supreme Court stayed lower-court changes.

Why did the delay count against the plaintiffs?

Because the court treated it as a reason to deny relief even without Purcell. The plaintiffs sued on 22 September, eighteen days after the memo issued, and moved for an injunction six days later. In the judge’s words, they “did not file their motion for preliminary injunction until the day before the counting of absentee ballots would begin.” The plaintiffs said they needed time to build a comprehensive record. The court’s answer: “Purcell problems aside, this delay was significant.”

The opinion also marks the asymmetry at the centre of the doctrine. Quoting Allen v. Milligan as it cites the case, it says that “[w]hile federal courts should not impose changes close to an election, States are free to decide for themselves whether last-minute changes to an election are in their best interests.” A Board memo issued on 4 September is a state’s change. An injunction issued in October would have been a court’s.

What happens to a voter whose envelope is flawed?

The memo sets two tracks, and the judge relied on them in finding the burden on voters is not undue. If a non-curable problem is found by the Friday before Election Day, staff “shall within one business day” spoil the ballot and reissue the package with a written notice that tells the voter of the option to vote in person. If it is found on or after the Saturday before Election Day, staff must contact the voter that same day to say the ballot is spoiled, that there is no time to mail another, and that the voter “may vote in-person during the early voting period or on Election Day, if there is still time to do so.”

Board executive director Sam Hayes welcomed the decision, Carolina Journal reported, saying the Board’s absentee procedures are “consistent with statute.” As of Wednesday 21 October, no appeal to the Fourth Circuit had been reported in the coverage this publication reviewed. The merits claims remain pending in the district court.

The doctrine runs in one direction, and the order shows which: the later a challenge is filed, the less a court may do about it, and the rules in force on the day voting starts are the rules that govern the count.