[Image courtesy of thenightlifenerd]
In case you missed it, last week was a particularly busy week in election law. In fact, it was so busy that Rick Hasen’s Election Law Blog summary of the week last Friday covered 8 states and ran about 350 words.
Courts at every level are being asked to rule on what the rules for Election Day should be in a wide range of places – including the U.S. Supreme Court, which is being asked to stop court-ordered changes to voter ID rules in Wisconsin and same-day registration and provisional balloting rules in North Carolina.
As of tomorrow, Election Day is 4 weeks away.
To all of this, I have one word to say: ENOUGH.
I understand that partisan interest in voting rules is at a peak and that, as a result, the ongoing legal skirmishes that Hasen has insightfully dubbed the “voting wars” are bound to intensify as an election comes into view. But increasingly, these last-minute disputes put election officials and voters in a really bad place – creating uncertainty and no small amount of frenzy at a time when the election administration system should be allowed to click into place.
To understand why, remember the old adage of “fast, cheap or correct – you can pick only two.” In most jurisdictions across the country, election funding is already stretched thin just to keep the system running on its typical schedule. And everywhere across the country, election officials’ mission – Job One for the field – is to ensure that the process yields an accurate result. Adding haste and chaos to this process – which last minute litigation does by definition – is just asking for trouble before, during and after Election Day.
The frustrating thing is that courts understand this when it comes to their own operations. For example, in the North Carolina case, the federal trial court has been given the signal to hold off on issuing any order until the Supreme Court has weighed in, since being asked to issue two contradictory orders in a short span of days could result in confusion.
I’d like to see that same theory apply to last-minute election litigation generally. As Hasen and others have pointed out – repeatedly but so far in vain – there is precedent (Purcell v. Gonzalez) suggesting that courts should tread carefully in the run-up to Election Day lest the intended benefits of any order be dwarfed by the chaos it produces. Courts should heed that advice and look very skeptically upon any party or court that tries to force last-minute changes to election rules.
And let’s be clear – both major parties each share the blame. In Kansas alone, a last-minute candidate withdrawal by one side resulted in a push by the other side to force a new candidate’s name on the ballot – which left county election officials scrambling not just to prepare, print and deliver ballots to overseas and military voters but to be ready for everyone else. [At least they have baseball to distract them.] And Courts of Appeals in Wisconsin and North Carolina have really put election officials in a difficult position by ruling so close to Election Day that the Supreme Court is being asked to intervene.
Ideally, we’d have some sort of understanding that last-minute election challenges are disfavored; failing that, however, we need to develop stronger measures to ensure that such challenges are rare. I’ll leave it to the real legal experts as to what those should be, but I’d like to see an even higher bar for parties seeking injunctions or other orders making changes to election rules. That would save such actions for the most egregious cases and would force litigants to plan further ahead when considering legal action.
At the very least, courts should have some mechanism to consider the needs and views of election officials – who are often titular defendants though their position on the merits is neutral – to ensure that the changes litigants seek are actually doable and affordable. Indeed, if courts are going to issue last-minute orders I’d like to see them include fiscal remedies as well by saying that the order will not be in effect unless and until the jurisdiction posts a bond with sufficient funding to make the change. [See “fast, cheap, correct” above.]
The current environment – where partisan animus and “the principle of the thing” have the upper hand – is bad, bad news for election officials and voters.