Leave It to the Lower Courts: On Judicial Intervention in Election Administration

This Article considers the relationship between the lower courts and the Supreme Court in the field of election administration, focusing on the Court's recent opinion inPurcell v. Gonzalez.It argues that the Supreme Court should exercise exceptional restraint in this area given: (1) the factual complexity of these cases, (2) the weighty democratic values on both sides, (3) the unusual procedural context in which these cases tend to arise, which often necessitate expedited consideration, and (4) the heated political atmosphere that typically surrounds election administration disputes.The Article begins by surveying the doctrinal and institutional changes resulting from Florida 's 2000 election controversy and Bush v. Gore.It then looks to the lower courts, assessing their handling of cases involving voting technology and voter identification.In general, the lower courts have done a capable-though certainly not perfect-job of handling the increased election litigation filed since 2000.Finally, the Article discusses and critiques Purcell, the one significant case since Bush in which the Supreme Court has intervened The Court's troubling intervention in Purcell illustrates why, as a general matter, election administration disputes are better left to the lower courts.Particularly when it comes to hot-button issues like voter identification that have a pronounced partisan valence, such intervention threatens to distort equal protection doctrine and undermine the Court's institutional credibility.leaves "the law of partisan gerrymandering... as muddled as beforehand." 3 Similar criticisms dog the Supreme Court's decisions regarding campaign finance regulation and come from both sides.Brad Smith notes the "emptiness" of McConnell v. FEC, 4 while Rick Hasen laments the "newer incoherence" evident in the Supreme Court's case law culminating in Randall v. Sorrell. 5 Pam Karlan emphasizes the pronounced disagreement within the Court on both political gerrymandering and campaign finance regulation.6 As she puts it: "The Court is not just divided; it is splintered."7 This Article considers how such incoherence might be avoided in the field of election administration, 8 in which the Supreme Court has been relatively quiet since Bush v. Gore.9 In taking on this question, I endeavor to follow Michael Solimine's wise suggestion that election law scholars attend to the institutional role of the federal courts generally and the Supreme Court in particular.' 0 I also draw on Ned Foley's thoughtful analysis of Bush v. Gore and the lawsuits it has inspired.1 1 Although I am more sympathetic to Bush v. Gore's equal protection reasoning than other commentators, 12 I believe it is a good thing that the Supreme Court has, with one notable exception, left election administration disputes to the lower courts since 2000.I also think that, for the most part, the lower courts-especially federal district courts-have capably handled the election administration litigation that has ensued.In some cases, they 3