The question of when is a court justified in ruling on election law in mid-election, with some potential impact on the outcome, cannot be resolved by the application of formula or hard-and-fast rules.  Sometimes the intervention will be defensible, perhaps urgently needed, and sometimes not; and it may matter, but not necessarily, whether the issue ruled on is presented by legislative or administrative action.  It may or may not be clear that the Court, by acting, will heavily influence or even decide, as in Bush v. Gore, the outcome.  To borrow from Justice Stevens’ concurrence, the question is one to be decided by judicial "wisdom," which we might take to mean a perspective on what is truly, in democratic terms, at issue and on the judiciary’s proper role in addressing it.  And, quite contrary to Justice Stevens’ conclusion, in no way is Purcell a display of "wisdom."

     It is not satisfactory to say of Purcell that it properly recognized the presumptive regularity of a transparent legislative enactment.  The Proposition in question placed restrictions on the franchise, quite deliberately so and as its core purpose, and when bona fide challenges are mounted against such an enactment, there is no good cause for leaving it in place until final adjudication.  This is not the place for deference to legislative authority.

     The Supreme Court is well aware that, on the facts of different but similarly motivated enactments, lower courts have found the claims made for voter ID enactments fatally suspect.  But this Court decided to leave the Arizona measure in place.  It did so in the knowledge that if the injunction were preserved, the election would be held under the same rules in effect in 2000.  No one alleged that that election was infected with voter fraud; nor was there any credible claim that in the intervening years, the threat had increased.

     So why did the Court act as it did?  Because the Court was prepared to credit the argument that even in the absence of facts of fraud or the demonstration of its palpable effect on elections, "voter confidence" was a reasonable enough basis on which to defeat an action for injunctive relief.  Commentators less critical of the Court have agreed that this "voter confidence" rationale was an ill-chosen argumentative ploy but they disagree that it was so bad that the Court deserves condemnation on that ground alone.  But to suggest that this stress on appearances was merely a ploy, or just a bad choice of rhetoric, seems to seriously slight its significance.

     For in order for the Court to explain its decision to vacate the Ninth Circuit, it needed or felt that it needed to rationalize in some way a legislative choice to place fresh, meaningful obstacles in the path of voters.  The rationalization it chose is a bonanza for the anti-fraud movement which, until Purcell, used the same line of reasoning to bypass the demands of evidence.  Now it has some language, provided by a unanimous Court, to substitute for its own, and some higher authority to which to appeal.  And, as Alexander Keyssar, among others, has rightly pointed out, this language has been corrupted with a misuse of the term "disenfranchisement," now available to describe not real but psychological barriers to voting experienced by fully eligible voters said to be paralyzed by fear of fraud.  

     It is certainly true that this is not a case where the Court has acted in a fashion that is clearly "outcome-determinative."  It is not a raw power play as some believe Bush v. Gore to have been.  In a way, it is the reverse of the 2000 case.  For in the latter, the Court effectively decided an election, but insisted that its holding was limited to the specific case, lacking in more general application.  In Purcell v. Gonzalez, which will not rival Bush v. Gore in notoriety, the decision may never be linked to a specific outcome but it may have disfigured the meaning of the "right to vote," transforming it from a slogan into a doctrine for disenfranchisement programs aimed at the most defenseless.  This is not wisdom. 

Bob Bauer