(Mis)trusting states to run elections.

• Author: Douglas, Joshua A.

INTRODUCTION

Recent Supreme Court election law jurisprudence reflects an unspoken, pernicious trend. Without identifying a specific new rule, the Court has been unjustifiably deferring to state laws regarding election administration, thereby giving states tremendous power to regulate elections. At the same time, the Court has diminished Congress's oversight role. That is a mistake. Placing too much power in states to administer elections is both constitutionally wrong and practically dangerous.

During the past few years the Court has considered many controversial election-related issues, from voter identification (1) to campaign finance (2) to race relations and the Voting Rights Act. (3) The majorities in these cases have generally deferred to states to run elections as they see fit. The Court has employed light-touch judicial review to state election administration laws while at the same time subjecting federal election rules to higher scrutiny.

Although not explicitly part of its analysis, the Court has been deferring to states in two ways, one substantive and the other procedural. First, the Court has accepted almost any assertion of a state interest to protect the integrity of the election, failing to dig deeper into the actual rationale for the state's regulation of the voting process. This differs from the Court's approach to federal election statutes and is contrary to historical practice. (4) Second, the Court has discouraged facial challenges to state voting laws but has sustained facial challenges to congressional enactments, thereby using a procedural mechanism to uphold state rules and invalidate federal laws. (5) These two themes, both unstated, infiltrate the recent case law. They also help to reconcile the Court's seemingly disjointed election law jurisprudence.

The Court has deferred to states substantively by failing to scrutinize the actual rationale behind a voting rule. When considering the first prong of the constitutional test and assessing the state's interest, the Court has credited at face value a state's general assertions of "election integrity." (6) The Court has failed to probe the underlying, more specific reason for a law, which is often to gain partisan advantage for the majority party. At the same time, it has scrutinized more carefully Congress's justifications for its voting regulations. (7) Thus, the Court is treating state election administration rules differently, giving less meaningful scrutiny to a state's voting processes.

Procedurally, the Court has deferred to state election administration laws through its approach to facial and as-applied challenges. (8) A facial challenge is a claim that the law is unconstitutional in all of its applications, whereas an as-applied challenge asserts the invalidity of the law only with respect to how it operates as to that specific plaintiff. (9) At first glance, it is difficult to reconcile the interpretation of this procedural question in cases such as Shelby County (Voting Rights Act), Citizens United (campaign finance), and Crawford (voter ID), as well as other lower-profile decisions, (10) because the analysis has diverged markedly regarding the propriety of facial or as-applied challenges. But a closer look reveals an interesting trend: the Court validates only piecemeal, as-applied litigation for state voting rules but will sustain broad facial challenges to other election laws. The usual result is judicial sanctioning of state voting regulations but a concurrent invalidation of federal election rules. This framework provides a procedural mechanism for the Court to defer to state election administration.

The Court's broad deference to state voting rules is concerning for two main reasons. First, it is doctrinally inconsistent with the structure of the United States Constitution. Second, it is alarming given the increasing number of restrictive and partisan-laden voting laws states are enacting.

Deferring to states while more closely questioning Congress's justifications for an election rule is inconsistent with our constitutional design. The Court's shift of power from Congress to the states to regulate elections is wrong under the U.S. Constitution, which provides that states run elections but that Congress has important oversight responsibilities. (11) The Elections Clause of the U.S. Constitution says so explicitly: the states shall "prescribe[]" the "Times, Places, and Manner" of holding elections for federal office, but Congress can "make or alter" such regulations as it deems necessary. (12) Further, the Fourteenth Amendment, as well as other voting-specific amendments, provides enforcement power to Congress to ensure equality in voting. (13) This means, quite pointedly, that the federal government plays an important oversight role in how our elections operate. The current judicial approach, however, elevates a state's role and minimizes the ability of Congress to oversee the election process.

The Court's approach is also dangerous, as it emboldens state legislatures to enact partisan voting rules in an effort to influence electoral outcomes. States across the country, particularly where one party controls both houses and the governor's mansion, are increasingly passing strict voting laws. (14) Many of these regulations have an underlying partisan tinge, with Republicans supporting laws aimed at "voter integrity" and Democrats pushing laws intended to ease voter restrictions--both in an effort to help their parties' electoral chances. (15) Of course, the legislators usually do not justify the laws based on their partisan effects; they instead cite a generalized interest, such as "election integrity." When courts defer to this governmental interest without careful scrutiny, these laws receive less meaningful judicial oversight. In turn, states will become even bolder in the kinds of election practices they promulgate. But election outcomes should not depend on partisan-laden voting rules. Partisan-based rules that dictate how our elections operate, and thus who wins, are dangerous for democracy, as they allow incumbents to entrench themselves in power and undermine the very foundation of our democratic system. (16) To dissuade politically motivated voting laws, the Court should ratchet up the level of scrutiny for all voting regulations to ensure that Congress and state legislatures justify their election laws with actual, specific evidence of the purpose for the rule.

This Article critically examines recent Supreme Court election law jurisprudence, with a particular eye toward cases involving state election administration--a hotbed of litigation at the Court in recent years. Election administration entails the rules of operating an election and encompasses laws such as voter identification requirements, regulation of primaries, and other "nuts-and-bolts" aspects of the voting process. (17) The Article focuses primarily on the last decade, mainly because that is when states have increasingly enacted stricter election regulations, (18) supposedly in the name of "election integrity," but more likely to gain partisan advantage for the ruling party. In addition, during the first decade of the Roberts Court's era, the Court's jurisprudence, in various areas, has amplified the distinction between facial and as-applied challenges, so it is important to understand the practical effects of this procedural feature of election law cases. (19)

Part I analyzes the Court's failure to examine critically a state's asserted interests in election administration cases, while at the same time questioning more carefully Congress's reasoning for an election-related law. The analysis shows that the Court allows states to satisfy easily the governmental interest prong of the constitutional inquiry, while Congress receives greater scrutiny. Part II considers the Court's contradictory discussion of facial and as-applied challenges, particularly in cases involving election administration. Both Parts reveal that the Court is using these judicial mechanisms to defer to states in how they run elections. Part III attempts to explain why the Court is taking this approach, situating the case law within the Roberts Court's overall concept of federalism. It also highlights the influence of Chief Justice Roberts himself, showing that he has joined the majority in every single election law case of his tenure (so far) and has authored more majority opinions than any other Justice. Part IV explains why this deference to state election administration, accompanied by vigorous judicial scrutiny of federal election laws, is both incorrect and dangerous. It is wrong because the U.S. Constitution explicitly acknowledges an important and higher-level role for Congress in regulating an election; it is dangerous because it encourages states to enact partisan-based laws that, under current jurisprudence, will not receive meaningful judicial review. The Court is unwarranted in putting so much trust in the states. It should instead scrutinize more carefully a state's rules involving election administration and require both states and Congress to articulate the specific justifications for a voting regulation.

1. DEFERENCE TOWARD STATE INTERESTS IN ELECTION ADMINISTRATION

   The Court has deferred to state regulation of the voting process by crediting, at face value, a state's asserted rationale for its laws. A state typically justifies its election rules by reference to generic platitudes such as "ensuring election integrity," (20) yet the Court rarely questions that explanation. The Court has been more skeptical, however, of Congress's justifications for passing an election statute. (21)

   Courts apply a familiar two-part test to constitutional challenges to an election regulation, whether under the First Amendment, Fourteenth Amendment, or another constitutional provision. First, does the government have a sufficiently important reason for adopting the rule in...