Today’s Supreme Court opinion in the Arizona voter ID case contains a caution against the disruptive effect of judicial interference with a state’s electoral process in the last weeks immediately preceding the date of a general election. “Court orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls.” (p.3).
This concern intensifies as the date approaches: “As an election draws closer, that risk will increase.” (Ibid.)
What effect will these cautionary words have on pending and anticipated litigation during the next seventeen days before this year’s voting on November 7?
The implication is easiest to see in a federal court case that involves a pending dispute over the validity of a state’s voter ID rules. The Ohio case, KLBNA v. Blackwell, is the only active case of this kind of which I am aware. (See chart.) In this context, the Supreme Court’s message seems clear: no more judicial orders that would disrupt whatever rules are currently in place. Indeed, the Supreme Court explicitly stated that the consequence of its decision for the Arizona voter ID rules would be to freeze them in place for this year’s election, giving the Ninth Circuit federal court of appeals no further maneuvering room with which to consider any additional basis for suspending their operation.
But what of a state court case that involves an aspect of voting administration other than enforcement of an ID rule? Another pending case from Ohio serves as a useful illustration: Ohio Democratic Party v. Blackwell. There, the issue is whether the Secretary of State improperly failed to promulgate clear and specific statewide rules concerning the security of voting machines and procedures for avoiding long lines at polling places. The plaintiffs are seeking a state court decree that would require the Secretary of State to issue such statewide instructions, in order to avoid county-by-county variations in the implementation of general voting administration rules adopted by the state’s legislature.
Assuming for sake of argument that this state court case would otherwise have merit—in other words, that it would be appropriate under state law to for the state court to order the kind of decree requested by the plaintiffs—does the Supreme Court’s new cautionary pronouncement in Purcell v. Gonzales undermine the authority of the state court to issue such a ruling now that the time is so close to the election?
Ordinarily, one would think not. The conventional wisdom is that state law controls a procedural issue concerning the availability of a remedy in state court, particularly an issue involving whether it is now too late for the court to provide a remedy that might have been availability just a few weeks earlier. (The technical name for this doctrine is the Latin term “laches,” but it basically means that a plaintiff has waited too long before seeking a court order that would now be especially disruptive. The issue of “laches” in a state court proceeding is usually understood to be a question of state law.) Because the U.S. Supreme Court has no authority over issues of state as opposed to federal law, if the availability of a state court remedy in this time period so close to election day were a question of state law, then the Supreme Court would have no authority to overturn a state court decree that ordered the Secretary of State to promulgate specific uniform rules between now and election day.
But there is some suggestion in today’s Supreme Court opinion in Purcell v. Gonzales—perhaps unintentional, perhaps not—that the disruptive effect of a judicial decree too close to election day is a problem of such character and magnitude that it affects federal constitutional rights. The operative phrase of the Court’s cautionary language is that judicial orders too close to election day “can themselves result in voter confusion and consequent incentive to remain away from the polls.” In just the previous paragraph, the Court spoke of the “disenfranchise[ing]” effect of “distrust” that “drives . . . citizens out of the democratic process.” (p.3). Even more broadly, the Court pronounced: “Confidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy.” (Ibid.) In support of these thoughts, the Court cited several canonical cases establishing the federal constitutional law of voting rights, including the famous one-person-one-vote case of Reynolds v. Sims.
All this suggests that it might be possible to assert that a state court decree issued within three weeks of election day, ordering for example a Secretary of State to promulgate more specific rules for the implementation of state voting administration laws, would cause enough confusion and distrust among voters that it would impair their voting rights protected by federal constitutional law. If so, then the U.S. Supreme Court itself would have the authority to overturn a state court decree of this kind. Moreover, the Court would be giving itself this authority even though the state court purported to rely exclusively on state law as a basis for ordering the Secretary of State to promulgate more specific implementing rules.
In this respect, the cautionary pronouncement of Purcell v. Gonzales echoes Bush v. Gore, the Court’s decision stopping the state court recount ordered pursuant to Florida law. Purcell v. Gonzales conspicuously does not cite Bush v. Gore, but the parallels are there. In Bush v. Gore, the U.S. Supreme Court saw the Florida Supreme Court inappropriately interfering with the state’s voting administration process, and thus the U.S. Supreme Court invoked the federal Constitution’s protection of voting rights as a basis for its authority to nullify the state court order. In Purcell v. Gonzales, the U.S. Supreme Court saw the Ninth Circuit inappropriately interfering with the state’s voting administration process, and although the Ninth Circuit is a federal rather than state court, the Court’s cautionary language and its invocation of federal constitutional voting rights principles would be potentially applicable if the intervention had come from the Arizona Supreme Court rather than the Ninth Circuit.
I suspect that the Supreme Court intended today’s decision in Purcell v Gonzales to be something of a counterweight to Bush v. Gore. There is a widespread sense among practitioners and scholars of election law that Bush v. Gore spawned a flood of litigation over the operation of the voting process. The Supreme Court saw a piece of it on Election Eve in 2004, involving polling place challengers in Ohio. The overarching message of Purcell v. Gonzales seems to be that, as a democracy, we need to cut back on this litigiousness in the context of an imminent election. Noticeably, moreover, Purcell v. Gonzales is pleasantly unanimous (even Justice Stevens’ concurrence speaks of the decision’s wisdom), whereas Bush v. Gore was bitterly 5-to-4.
Over time Purcell v. Gonzales may indeed prove to have its intended effect, cutting back the amount “voter confusion” and “distrust” caused by judicial intervention in the last weeks before an election—and thereby cutting back the number of filings that seek such intervention. But it is possible also that Purcell may not achieve this result. Instead, it is conceivable that the decision sparks a new form of uncertainty: under what circumstances does this newly articulated federal constitutional interest in avoiding pre-election litigation nullify a remedy that otherwise would be available in state court under state law? This uncertainty could become something new for lawyers to dispute.
Purcell makes it crystal clear that there will be no further litigation over voter ID in Arizona. But it does not make clear when the Supreme Court itself will step in to halt other forms of pre-election litigation, especially when occurring in state court under provisions of state law.
Bush v. Gore did not intend to encourage litigation over voting administration procedures. Yet that is what occurred.
It is far too early to tell whether Purcell will effectively reduce, or merely alter, the expression of litigiousness over voting administration procedures that Bush v. Gore prompted.