Additional views continue to emerge in the discussion of the Supreme Court’s decision in Purcell v. Gonzalez, and two, in the last day, consider more generally the timing of judicial intervention in elections.  The Court did note that "Court orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls," and that "as an election draws closer, that risk will increase."  So Rick Hasen, who has written previously on the subject, restates his view that pre-election litigation is to be preferred over post-election litigation lest partisans await the outcome before deciding, on the basis of the vote count, to press their claim.  At the Moritz College of Law site, Professor Steven Huefner examines the varieties of and justifications for pre-election litigation, concluding that courts should not hesitate to grant final relief on a full record in the pre-election record or preliminary relief tending to limit election day confusion. 

     These views are united around the objectives of protecting confidence in the electoral process and defending against political gamesmanship by partisans pursuing victories in court that could not be won at the polls.  But are such concerns overrated? 

     "Laches."  Consider first the claim that campaigns might hold off on a legitimate action until the outcome is known, then sue to reverse it.  While this is conceivable, it is improbable.  Few campaigns plan this way.  Any problem they might plead after the election, if serious enough to affect the outcome, is one they would much prefer to address in advance of Election Day.  Even more likely, the problems that arise are unexpected—in nature or impact—and typically did not (rightly or wrongly) seem to warrant attention or the commitment of resources before they were proven, by experience, to matter.  Example:  the butterfly ballot.  Campaigns try to win; and to win, they are anxious to control whatever is controllable.  They do not gamble on legal action after the vote count, knowing it to be publicly sensitive and unpredictable in result.

     Moreover, a law or procedure, if constitutionally defective, is not less so because the challenge was tardy or politically timed.  And even if the candidates "should have known better," that is, should have brought the action earlier, the fate of the voters with interests directly at stake in litigation should not be decided by the level of candidates’ diligence or by a fruitless attempt to teach campaigns a lesson about their responsibilities to bring timely legal action.  

     Public Confidence.  John Fund relishes conjuring up the trauma of post-election legal action.  The public is less traumatized by these events than the mass media would have it, the public, believe; and to the extent that the public does experience trauma, it is because it is repeatedly advised that it does, with numbing frequency and at thunderous volume.  In 2000, the country was said to be in "crisis."  It was not, and some of this agitation may have induced Justices of the Supreme Court to imagine, unwisely, that theirs was the last institution able to spare the country total collapse.  The Court came to the rescue, and now another crisis was at hand, ostensibly threatening the "legitimacy" of the Court.  It has made it through just fine, its high-handedness in these matters very much preserved, as demonstrated only days ago in the Purcell decision.

     Confusion about the Law.  It is certainly possible that last-minute changes in the law can confuse voters.  It is also tempting to say that in an election system run as shabbily as the one now in place, worries about this particular source of unfairness to voters seem misplaced.  A great deal of voter confusion is the product of election maladministration that litigation is designed to remedy.  But the complaint is also vague:  which specific instance of confusion might be cited as an illustration of the general problem?  There are many cases of confusion properly laid at the door of maladministration; very few known to have been caused by litigation instituted, or court order issued, to address an unlawful or unconstitutional law or procedure.  Parties and candidates have every incentive to bring relevant information to the attention of voters in danger of confusion about a change in the law.  Most of the time, they do just that. 

     Mistakes of Law.  Courts confronted with last minute challenges might rush their decisions and botch them.  Yet we cannot know whether, with time, they would have done better; and recent years’ experience with the United States Supreme Court does not give grounds for much optimism on this score.

     Horror at the thought of lawyers, all crowding into courtrooms to reargue elections, is understandable.  No one in their right mind would wish for it, all things being equal.  Things are not equal.  In close and important elections, conducted under extensive, complicated and often patchwork regulations all too often administered by partisans of questionable capability, lawyers play the traditional role of checking abuse, remedying unfairness, enforcing constitutional guarantees, and testing outcomes.  Of all the reasons for despair about how we run elections, lawyers, fashionably the first to be blamed, should be the last. 

     Courts should hear the cases and decide on their merits.  As Dan Tokaji sensibly stresses, they certainly should explain their reasons.  But when called upon to act, they should, shouldn't they?

Bob Bauer