Structuring judicial review of electoral mechanics: explanations and opportunities.

• Author: Elmendorf, Christopher S.

This Article is the first of a series on constitutional judicial review of what the Supreme Court has termed "the mechanics of the electoral process," defined to include "the registration and qualification of voters, the selection and eligibility of candidates, and the voting process." Over the last few years, this subject has assumed a new salience as litigators challenge novel state-mandated procedures for registration, voting, and vote counting. For the first time since the 1960s, a significant number of voter participation cases are moving through the lower courts. The courts are substantially in agreement that these claims are governed by the doctrinal framework set forth in Burdick v. Takuski, but there is a catch: Burdick 'S statement of black-letter law significantly misdescribes the Supreme Court's actual practice in its electoral mechanics jurisprudence--or so I argue here. As a result, lower courts confronted with the new generation of voter participation claims have often pursued analytic methods that the Supreme Court is not likely to find congenial. Important avenues for doctrinal experimentation and elaboration are being overlooked. This Article develops a schematic map and a vocabulary for talking about the Supreme Court's methods in its electoral mechanics jurisprudence, one that should help lower courts (as well as litigants and law professors) to think more productively about the critical threshold question in such cases: what is the standard of review, and why? By way of illustration, the Article examines and critiques successive district court opinions enjoining Georgia's new photo ID requirements for voting.

INTRODUCTION I. BURDICK IN CONTEXT: THE PROBLEM OF JUDICIAL REVIEW OF ELECTORAL MECHANICS II. UNDERSTANDING BURDICK: HOW THE COURT POLICES ELECTORAL MECHANICS (WITHOUT MUCH DATA) A. "Burdens" Severe in Kind B. Cutoffs: From Best Practices Strict Scrutiny to Structural Presumptions 1. Fixed, Numerical Cutoffs: On Storer v. Brown and Signature Requirements for Ballot Access 2. Qualitative Cutoffs: On Kusper v. Pontikes and Advance Enrollment for Voting in Partisan Primaries 3. Dynamic Cutoffs: On Randall v. Sorrell, Norman v. Reed, and the Emergence of Cutoffs Tied to the Legal Landscape a. Randall: The National Landscape b. Norman: State/Local Disparities C. Legislative Purpose 1. Inferring Effects from Purpose 2. Heightened Scrutiny for Discriminatory but Nonsevere Burdens? 3. What Is the Cart and What Is the Horse? Or, Are "Severe Burdens" Merely Indicia of Bad Intent? D. What Role Remains for Empirical Burden Analysis at Step One? III. MAKING THE MOST OF FORMALISM: OPPORTUNITIES FOR DOCTRINAL ELABORATION A. Suggestions for Lower Courts B. Suggestions for the Supreme Court CONCLUSION INTRODUCTION

Election law is coming full circle. In the 1960s, when the Warren Court declared that the "right to vote" was a "fundamental political right" protected by the Constitution, the major cases concerned access to the polls and the weighting of votes. (1) Different issues took center stage in the 1970s, 1980s, and 1990s. The Court delved into ballot access. (2) It circumscribed the regulation of campaign finance. (3) It created associational rights for political parties. (4) And, through the Voting Rights Act, it limited the use of representational structures that, without weighting votes unequally, nonetheless disadvantaged racial minorities. (5)

Today, however, voting itself is moving back to center stage--but in a new guise. Instead of challenging the de jure exclusion from the franchise of certain classes of voters, or the malapportionment of legislative districts, litigators are pressing claims that state-mandated procedures for registration, voting, and vote-counting--the nuts and bolts of elections--operate to burden voter participation excessively or unfairly. (6) In the past two years alone, litigants have mounted successful constitutional challenges to novel voter ID requirements enacted by Georgia in 2005, (7) by Missouri in 2006, (8) and by Ohio in 2006. (9) Litigants have also won injunctions against new laws in Georgia, Florida, and Ohio that regulate voter registration drives by civil-society organizations. (10) And lawyer-activists convinced the Sixth Circuit that Ohio may not employ demonstrably inferior vote-counting technology in some counties if it uses superior technology elsewhere. (11) On the other hand, voter ID challenges have been rebuffed by several courts, (12) and the Sixth Circuit's opinion in a vote-counting case drew a withering dissent. (13)

Given that four decades have passed since the Supreme Court converted voting into a fundamental right, one might expect there to be fairly well-settled answers to the question of what triggers heightened scrutiny in the voting rights domain, and what applying heightened scrutiny entails. The recent spate of litigation suggests that there is, in fact, substantial judicial agreement that constitutional challenges to the nuts and bolts of registration and voting are to be resolved using the method set forth in Burdick v. Takushi, (14) a 1992 decision in which the Supreme Court undertook to restate the doctrines governing constitutional challenges to electoral mechanics (defined to include "the registration and qualifications of voters, the selection and eligibility of candidates, [and] the voting process" (15)). (16) Equally, however, this litigation illustrates the need for a new doctrinal heuristic for describing how the courts are supposed to approach such cases.

Burdick is widely understood to prescribe sliding-scale or multipletier scrutiny, with the degree of scrutiny a function of the "character and magnitude" of the burden on voting or associational rights. (17) Laws that effect a "severe" burden receive strict scrutiny; laws whose burden is minimal receive lax, rational-basis-like review; and laws whose burden is significant but not severe arguably receive something in between. (18) Working from this starting point, the lower courts recently confronted with voter participation claims have generally begun by asking whether there exists a Supreme Court precedent that applies strict scrutiny or lenient review to a facially similar law. If so, and if the court is satisfied that the law at issue is sufficiently similar, the court will take shelter under the Supreme Court's decision. Illustrative examples include ACORN v. Bysiewicz (19) and the poll tax holding in the first round of the Common Cause/Georgia v. Billups litigation. (20)

In Bysiewicz, a federal district judge applied lax review to Connecticut's seven-day advance registration requirement for voting in general elections. Thirty years earlier, in Marston v. Lewis, an opaque per curiam opinion, the Supreme Court had said that Arizona's fifty-day registration cutoff was unobjectionable. (21) The Bysiewicz plaintiffs sought to distinguish Marston on the ground that the plaintiffs in that case had not introduced evidence concerning the aggregate impact of the registration requirement. (22) By contrast, the Bysiewicz plaintiffs produced uncontroverted studies of voting behavior by leading political scientists, demonstrating that a large fraction of the electorate does not "tune in" to political campaigns until just days before an election, and that rates of electoral participation would probably rise by about 5% if Connecticut eliminated its pre-election registration requirement (as have seven other states). (23) But the district court concluded that this evidence was beside the point in light of the Supreme Court's lack of concern about other modest advance registration periods. (24)

In Common Cause/Georgia I, a federal district judge applied strict scrutiny to Georgia's photo ID requirement for voting. The court reasoned, inter alia, that because Georgia charged a twenty dollar fee for the one form of state-issued ID made available to all voters, the ID requirement was tantamount to a poll tax. (25) Per the Supreme Court's decision in Harper v. Virginia Board of Elections, (26) poll taxes--and thus the Georgia photo ID requirement--were subject to strict scrutiny. (27)

In much of the new voter participation litigation, however, the courts have not been able to locate Supreme Court precedents addressing formally similar laws. For example, most courts have thought it strained to analogize ID requirements to poll taxes if the state charges no fee for its voter ID. (28) When there is no Supreme Court precedent addressing the type of law at issue, the lower courts have generally tried to investigate the actual impact of the challenged law on political participation. (29) If the plaintiff establishes to a court's satisfaction that the challenged law will substantially impact electoral participation, especially by disadvantaged voters, the court will characterize the burden as severe and apply strict scrutiny. (30) If the plaintiff fails to make this showing, the court will treat the burden as insignificant or unproven and apply lax scrutiny. (31) Federal judges have had different understandings about the proper roles for common sense, anecdote, and social-scientific evidence in this inquiry. Some have insisted on hard evidence; others have freely indulged in conjecture. (32) But these disagreements, themselves only latent, do not draw into question the basic notion that the task for courts in applying Burdick to novel fact patterns is to fully investigate the impact of the challenged law, and then to set scrutiny levels accordingly. (33)

That notion reflects a perfectly sensible, face-value reading of Burdick's statement of legal doctrine. How else but through such an investigation could one say whether the magnitude of a regulatory burden is "severe" or "minor"? Moreover, the Court's rhetoric in electoral mechanics cases seems to invite all-things-considered, empirically oriented burden inquiries. The Court has reiterated, for example, that "it is essential...