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Commentary

Purcell's Implications on Pre-Election Litigation

A number of observers have already suggested that last Friday's unanimous Supreme Court opinion in Purcell v. Gonzalez, which restores for this election Arizona's new voter identification requirements, portends an impact far beyond how Arizona voters will demonstrate their eligibility to vote on November 7. While one common interpretation of the decision has been that it renders pre-election litigation over the conduct of elections more difficult, this reading needs to be qualified in at least two significant ways. First, as others have begun to note, this interpretation may be less true of litigation intended to clarify unsettled or truly ambiguous matters of election administration, rather than litigation that instead would (arguably) unsettle existing, stable practice. Second, the Court's decision may have a very different meaning with respect to final judgments on the merits, rather than preliminary orders. At issue in Purcell was an Arizona statute approved by a popular initiative in 2004 that requires voters to present proof of citizenship when they register to vote and to present identification at the polls on election day. In May, a group of plaintiffs challenged these requirements in federal district court, seeking preliminary and permanent injunctions against their enforcement. In September, the district court denied the plaintiffs' request for a preliminary injunction, and the plaintiffs appealed this denial to the United States Court of Appeals for the Ninth Circuit. On October 5, the Ninth Circuit granted the plaintiffs' request to temporarily enjoin the enforcement of these voter identification requirements while the court considered the full appeal. Friday's Supreme Court decision vacated that injunction, thus restoring the new voter identification requirements while the circuit court continues to consider the appeal of the district court's decision. As others, including my colleague Ned Foley, have already noted, the Purcell decision is likely to have wide-ranging ramifications for future election-related litigation. In parsing the broader implications of the decision, many observers have focused on this language in the Court's short unsigned opinion: "Court orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase." Although the Court appears to have written this language to explain why the circuit court acted as it did -- hurriedly and without benefit of the lower court's findings of facts or conclusions of law, because it may have recognized that in order to reduce the risk of confusion it needed to act promptly -- this language also bears the interpretation that, the closer an election, the more the Supreme Court will expect lower courts to show caution in issuing an order affecting the election. In list-serve discussions and other informal exchanges since Friday's decision, a number of observers have taken up some version of this interpretation. Several, including UCLA law professor Dan Lowenstein, NYU law professor Sam Issacharoff, and my colleague Terri Enns, have suggested distinguishing between categories of pre-election litigation for which this cautionary approach may and may not be appropriate. Lowenstein suggests that we analogize pre-election litigation to cholesterol, which partakes of both a good and a bad variety. "Good" pre-election litigation is that which seeks to clarify confusing or ambiguous matters of election administration, as in the run-up to the 2004 election when courts clarified that in Ohio, provisional ballots cast in the wrong precinct would not be counted. This type of litigation may produce little risk of increased voter confusion as an election draws near, as both its intended purpose and its actual effect may be to reduce confusion. Meanwhile, "bad" pre-election litigation is that which seeks, even for a virtuous reason, to upset an established state of affairs. It is "bad" not in any sense involving its underlying merits, but only in the sense that the closer to an election that it occurs, the more destabilizing it may be. The distinction between pre-election litigation that seeks to settle the unsettled, on the one hand, and that which instead seeks to unsettle the settled, on the other hand, gives rise to a couple of further reflections. First, as Professors Lowenstein, Issacharoff, and Enns have all noted, in practice it may be difficult to distinguish between what is "settled" and what is not. Second, notwithstanding the potential practical difficulties of making this distinction, simply acknowledging its possibility ought itself to provide a reason for observers to be cautious about overgeneralizing from the Court's language, which itself was merely explanatory, rather than necessarily even hortatory. Third, this distinction suggests an additional factor that courts might consider in determining whether to take action immediately before an impending election: In many cases seeking to challenge a "settled" practice, litigants may have had ample time to seek court relief long before the election becomes imminent. In contrast, when what is at issue is an attempt to clarify some new practice or requirement, which may itself not have been in place until shortly before the election, litigants may have no alternative other than to seek judicial relief on the eve of the election. It may be preferable to resolve both kinds of cases before rather than after the election, as my colleague Dan Tokaji, among others, has previously noted, provided that the resolution occurs sufficiently before the election. Thus, it may be that pre-election challenges to settled practice should presumptively be brought well in advance of an election, rather than on its eve, while courts might afford greater leeway for eleventh-hour challenges to new procedures, or in light of unforeseen developments. Of course, bringing a court action well ahead of an election is no guarantee of when it will be finally resolved. This unremarkable observation leads to a second significant qualification on the impact of Purcell, distinguishing between a case's final resolution and its preliminary orders. Much of the commentary since Friday's decision seems to have embraced the interpretation that, because of the potential for voter confusion, it is presumptively too late for courts in any posture to alter the election ground rules once an election is sufficiently imminent. But does Purcell really mean, as language in Ned's second analysis of the case seems to suggest, and others' comments appear to echo, that between now and election day courts should issue "no more judicial orders that would disrupt whatever rules are currently in place"? [1] Perhaps not. Purcell concerns only a stay pending appeal, rendered without any factual justification, of only a denial of a preliminary injunction. Whatever light this case may shed generally on the difficulties of court involvement in election administration, it should not be understood to suggest that courts considering election challenges should avoid issuing even final judgments on the merits once an election has grown imminent. Of course, courts should seek to expedite the final resolution of such cases as far in advance of the election as reasonably possible, in order to minimize the potential for confusion. But it would be a strange form of justice for a district court that had completely considered a full factual record concerning an election challenge (or likewise an appellate court that had heard a full appeal), and on that basis was prepared to issue tomorrow a final order "unsettling" the status quo, now to feel compelled to wait two weeks, in order to allow the November 7 election to operate under what the court had concluded were impermissible conditions, before prospectively invalidating those very conditions. Indeed, the Court itself identifies "the inadequate time to resolve the factual issues," given the imminence of this year's election, as the basis for concluding that the Court's action of vacating the injunction pending appeal necessarily means that Arizona's new voter ID rules will remain operational on November 7, because the Ninth Circuit will not be able to consider the full appeal by then. But implicit in this explanation is the notion that, had the Ninth Circuit been in a position to fully consider the merits of the appeal before the election, it might well have issued whatever final order it then felt that the facts and law required, regardless of the imminence of the election. District courts likewise ought not to be constrained from issuing final orders by the approach of an election. Although (as part of their ordinary balancing of harms when equitable relief is at stake) they ought to weigh whatever injury they have concluded merits remedying against the likelihood that an election eve injunction risks serious disruption and cannot be mitigated, this is not the same as reading Purcell as counseling against any final judicial orders that would alter election rules once an election is imminent. Thus, notwithstanding the Purcell's decision significance in favoring the status quo as an election draws nigh, it should not be overread to discourage lower courts from granting either final relief in pre-election litigation, or preliminary relief that will reduce rather than increase election day confusion. Notes [1] Ned has since clarified with me that his remarks were limited to the amended complaint in the Blackwell v. KLBNA case, which was filed only earlier this month and which does not yet have a fully developed factual record.

Steven F. Huefner has wide-ranging election law experience and interests, including the specific areas of contested elections, term limits in state legislative elections, military and overseas voting, legislative redistricting, and poll worker responsibility and training. Prior to joining the faculty at Moritz, Professor Huefner spent five years in the U.S. Senate's Office of Legal Counsel, where his responsibilities included advising the U.S. Senate in matters of contested Senate elections, as well as assisting in the 1999 presidential impeachment trial. View Complete Profile

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