In a predictable use of the Supreme Court's decision only days ago in Purcell v. Gonzalez, the Sixth Circuit says this:

…As the Supreme Court has recently recognized, court orders affecting elections can themselves result in voter confusion and cause the very chilling effect that plaintiffs claim they seek to avoid….

     In part for this reason, the appellate court vacated a lower court stay of certain absentee ballot voter identification requirements.  “The TRO”, the Court states, “needlessly creates disorder in electoral processes, without any concomitant benefit to the public."  Northeast Ohio Coalition for the Homeless v. Blackwell, Nos. 4412 and 4421, slip op. at 20. 

     In the meantime, the world continues to turn, and the more reliable source of confusion and “disorder”—voter suppression activities by partisans—is in evidence.  The New York Times editorializes on one example:  a massive last-minute voter challenge, fired off at thousands of voters, in a New York State Senate district.  The experience of other cycles suggests that this is not the last of these schemes or ones like it.  Most often, the intent, and certainly the effect, will be the intimidation, discouragement and confusion of low-income and minority voters.

     When the Supreme Court posits that, in election disputes, the appeal to the courts is the cause of confusion, it has not merely mistaken the effect for the cause.  It has armed lower courts with the rationale for stepping aside at the wrong time:  in the thick of the election season, when disorder is the work of partisans and voting rights are endangered, mostly in communities with limited resources for self-defense.

     Now the defense of the Court might begin with a distinction between destabilizing challenges to "settled" law and the imperative protection of voters from partisan machinations.  It is not a useful distinction.  Its failings include the impossibility of determining what is "settled," and the irrelevance of that suggestion in the face of profound, unconstitutional disenfranchisement.

     Moreover, in a system where partisan and administrative functions are not clearly separated, there is only so much refuge to be found in "orderly administration."  Administrators, like legislators, have contributed generously to the disorder. 

     The Times urges the Republican candidates, on whose behalf this “challenge” was mounted, to “call off the lawyers.”  The lawyers won’t be called off, not there or elsewhere, and, in some places, they will be aided and abetted in their suppressive work by elected and appointed officials making mischief with unconstitutionally designed statutes or rules.  In defending themselves, voters will need lawyers of their own:  to be found in the courts, not “called off” in the name of Purcell v. Gonzalez.

Bob Bauer