Daniel P. Tokaji, Leave it to the Lower Courts: On Judicial Intervention in Election Administration, 68 Ohio St. L.J. 1065 (2007).
Abstract: This essay addresses the proper scope of judicial intervention in the field of election administration. It argues that the Supreme Court would generally do best to leave issues of election administration to the lower courts, at least in the short term.
The essay begins by surveying the doctrinal and institutional changes resulting from Florida’s 2000 election controversy, including the two leading equal protection theories that Bush v. Gore spawned. It then looks to the lower courts, assessing their handling of cases involving voting technology and voter identification. The essay concludes that the lower courts, especially district courts, have generally done a good job of handling this litigation. On the other hand, in the one significant post-2000 case where the Supreme Court intervened, Purcell v. Gonzalez, it issued an opinion which betrays its failure carefully to think through the appropriate role of federal judiciary in election administration and threatens to distort equal protection doctrine.
As Purcell illustrates, several features of election administration litigation call for particular restraint on the part of the Court: (1) the factual complexity of these cases, (2) the weighty democratic values asserted 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 in which these controversies tend to arise. These considerations suggest that the Court would do best to allow a thorough percolation of election administration issues in the lower court rather than interventing as it did in Purcell. Such intervention threatens to undermine the Court’s institutional credibility, particularly when it comes to hot-button issues like voter identification that have a pronounced partisan valence.
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