Prof. Hasen has this specific reaction, which included these paragraphs:
This approach may have appeared desirable at oral argument, but upon closer examination, it raises a number of legal issues---issues that could cause Justice Kennedy to rethink the "as applied" approach. First, as Chris Elmendorf has suggested, the as applied approach is likely to lead to a great increase in the amount of litigation over nuts and bolts election law disputes. Paul Smith made this point in his rebuttal at oral argument as well (page 65 of the transcript ["The whole thing would be a complete and utter morass."].). My view is that the Court does not want to encourage more election law litigation, but the as applied approach would do exactly that.(Internal links omitted.)
More importantly, the rule would create more litigation at exactly the wrong time, just before or just after an election. I have written extensively about the dangers of post-election litigation, which can cause the public to lose confidence in both the fairness of the election process and the fairness of the courts (which, as I've noted, have divided along party lines in considering hotly charged election issues such as voter id.) In addition, the Court in its recent Purcell v. Gonzalez case tried to discourage litigation brought just before an election, because it can create great confusion about the electoral process. (The Court has a point, but as I've argued, pre-election litigation is at least better than post-election litigation when there is a choice between the two, for purposes of public confidence.) A rule encouraging pre-election challenges to the nuts-and-bolts of elections just before election time is likely to push courts even further into the political thicket.
As surely Prof. Hasen knows, at just about any time in our nation, we are just before or just after an election. The rationale that any Court ruling should consider such conditions seems ludicrous. His point about pre-election versus post-election challenges is well taken, but it could simply be a matter of perspective as to whether you have a pre-election or post-election lawsuit. Clearly, lawsuits designed to change the result of an already past election should be avoided if at all possible.
The fact of the matter is that any reason the public has any lack of confidence in the electoral and election administration process is for the very reason that the litigants in each case are viewed to have a partisan or parochial viewpoint. Note that the group challenging the Indiana voter ID law was the Indiana Democratic Party, so the immediate partisan motive is seen, Democrats think voter ID laws are bad and the Republicans must think they are good because they didn't challenge the law. Such a assignation of motive is improper but largely unavoidable.
At this stage, the "nuts and bolts" type of election law challenges are going to happen no matter what is said or done.