Why the Court Should Apply Intermediate Scrutiny to Equal Protection Challenges to Election Laws

• Publication year: 2015
• Author: By Matt Collins*

Why the Court Should Apply Intermediate Scrutiny to Equal Protection Challenges to Election Laws

By Matt Collins*

I. INTRODUCTION

Since the U.S. Supreme Court decided Bush v. Gore,¹ scholars have debated the soundness of its equal protection holding and whether the Court's "arbitrary and disparate treatment" standard held any precedential value for future election law challenges.² In the spring of 2008, the Court decided another controversial election law issue in Crawford v. Marion County Election Board.³ While both cases were decided on equal protection grounds, Crawford applied a markedly different standard.⁴ As opposed to an arbitrariness inquiry, the Court applied the Anderson-Burdick balancing test, a standard established in two prior Supreme Court cases: Anderson v. Celebrezze⁵ and Burdick v. Takushi.⁶

Quite understandably, lower courts have struggled to reconcile this conflicting Court precedent, as exemplified by litigation during the 2012 election cycle. In July 2012, the Obama campaign filed a lawsuit challenging an Ohio statute prohibiting early voting during the three days before an election for all but military voters.⁷ In Obama for America v. Husted, the United States District Court for the Southern District of Ohio granted an injunction, finding that the attenuation of the early voting period violated the Equal Protection Clause of the Fourteenth Amendment.⁸ Interestingly, the District Court applied both the Bush v. Gore arbitrariness standard and Anderson-Burdick balancing.⁹

This most recent case epitomizes the broader issue in the Court's equal protection jurisprudence. That is, the Court's failure to articulate a clear, administrable standard has led lower courts to indeterminately evaluate equal protection challenges to election laws.¹⁰ The goal of this article is to provide a solution to this issue. First, it will briefly outline the Court's equal protection jurisprudence. Second, it will discuss the potential dangers of the Court's indeterminate jurisprudence. Third, it will argue that the Court should refine the Anderson-Burdick balancing test by explicitly adopting intermediate scrutiny as the minimum standard for election law challenges, while reserving strict scrutiny for "laws that severely restrict the right to vote."¹¹ In assessing whether a challenged statute satisfies intermediate scrutiny, the Court should direct lower courts to consider: (1) the extent to which the challenged statute will lead to a retrogression in voter participation based on voter turnout in previous election cycles, (2) whether the statute is improperly partisan, (3) how the challenged statute compares to similar statutes in other jurisdictions, and (4) the extent to which the challenged statute threatens core democratic principles.

II. THE COURT'S EQUAL PROTECTION JURISPRUDENCE

The Court has analyzed equal protection challenges to voting laws in two ways. First, the Court has applied a balancing test established in Anderson v. Celebrezze¹² and Burdick v. Takushi.¹³ Second, in Bush v. Gore,¹⁴ the Court applied a new, "arbitrariness" standard.¹⁵

A. Anderson-Burdick Balancing

In Anderson v. Celebrezze,¹⁶ the Court addressed an Ohio statute requiring independent candidates for President to file a statement of candidacy and a nominating petition with the Secretary of State by March in order to appear on the November general election ballot.¹⁷ In resolving the equal protection challenge, the Anderson Court articulated a flexible balancing test in which a court must:

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first consider the character and magnitude of the asserted injury to the rights . . . that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burdens imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests, it also must consider the extent to which those interests make it necessary to burden the plaintiff's rights. Only after weighing all these factors is the reviewing court in a position to decide whether the challenged provision is unconstitutional.¹⁸

To provide flexibility to election administrators, the Court noted "not all restrictions imposed by the States" will be constitutionally suspect.¹⁹ Rather, the Anderson Court granted significant deference to the states, in recognition of their "important regulatory interests [that] are generally sufficient to justify reasonable, nondiscriminatory restrictions."²⁰

The Court held that Ohio's March filing deadline placed "a particular burden on an identifiable segment of Ohio's independent-minded voters."²¹ On balance, the Court determined that Ohio's asserted interests in voter education, equal treatment for partisan and independent candidates, and political stability did not satisfy the burden placed on independent voters.²² Consequently, the Court struck down the statute.²³

A decade later, the Court elaborated upon the Anderson standard in Burdick v. Takushi.²⁴ Applying the Anderson analysis to uphold Hawaii's prohibition of write-in voting, the Court stated, the "rigorousness of the inquiry . . . depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights."²⁵ When the state creates "'severe' restrictions, the regulation must be 'narrowly drawn to advance a state interest of compelling importance.'"²⁶ Comparatively, however, "when a state election law provision imposes only 'reasonable, nondiscriminatory restrictions'" upon constitutional rights of voters, "'the State's important regulatory interests are generally sufficient to justify the restrictions.'"²⁷ The Court upheld the write-in prohibition because the burden on the right to vote for the candidate of one's choice was not severe and was counterbalanced by Hawaii's interests in narrowing the field of candidates in the general election to those that received sufficient support in the primary.²⁸

The Court's last major adaptation of the Anderson-Burdick balancing test occurred in 2008, in a challenge to a 2005 Indiana statute - SEA 483 - a law that required citizens voting in person to present government-issued photo identification.²⁹ Despite many calls for the Court to articulate "clear and fair standards to resolve election administration disputes,"³⁰ the Court fractured over the application of the Anderson-Burdick test to Indiana's controversial statute.³¹ Justice Stevens, writing for the plurality, argued that no prior Court precedent had created a "litmus test for measuring the severity of a burden" that an election law imposes.³² Rather, the Court has flexibility to apply Anderson-Burdick depending on the facts of each case.³³ The Court used this reasoning to determine that SEA 483 was not, on the facts of the record, "imposing 'excessively burdensome requirements' on any class of voters."³⁴

Justice Scalia, with whom Justices Thomas and Alito joined, issued a concurring opinion supporting the plurality's result, but criticized its approach.³⁵ To Scalia, "Burdick forged Anderson's amorphous 'flexible standard' into something resembling an administrable rule."³⁶ That is, Burdick created a bifurcated standard whereby strict scrutiny will only be appropriate if the burden on the right to vote is severe,³⁷ while rational basis would apply to laws that impose only "minimal burden[s]."³⁸

B. Bush v. Gore and the "Arbitrariness" Standard

Bush v. Gore³⁹ stemmed from the Florida electoral crisis of 2000.⁴⁰ The closeness of the election, and the legal challenges that ensued, brought into focus the failures of voting technology and judicial intervention in election administration.⁴¹ The debate resulted from the failure of punch card technology to adequately reflect voter preference.⁴²

Issuing a per curiam opinion, the Court held that "[h]aving once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another."⁴³ That is, once the state legislature has vested the right to vote for President in its people, that right becomes fundamental, and equal weight must be accorded to each vote.⁴⁴ In determining that the Florida Supreme Court's order to recount votes did not satisfy the minimum requirement for non-arbitrary treatment of voters, the Court reasoned that the Florida Supreme Court failed to provide uniform rules and procedural guidance to determine voter intent.⁴⁵ Due to this, the Court reasoned, the recount could not "be conducted in compliance with the requirements of equal protection and due process without substantial additional work."⁴⁶ As a result, the Court voted to end the recount and brought the 2000 election to a close.⁴⁷

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III. THE LOWER COURTS' RECONCILING OF ANDERSON-BURDICK WITH BUSH V. GORE

In 2005, the Ohio General-Assembly established "no-fault absentee voting."⁴⁸ That is, the State expanded the right to use absentee ballots and the right to cast in person votes through the day before Election Day.⁴⁹ On June 29, 2011, the Ohio General Assembly passed Amended Substitute House Bill Number 224, which effectively eliminated the last three days of early in-person voting for all voters.⁵⁰ The Bill, however, created confusion for members of the armed services.⁵¹ Under the Bill, members of the armed services fell under another statute, the Uniformed and Overseas Citizens Absentee Voting Act ("UOCAVA"), which had two deadlines to file their ballots: 6 p.m. Friday and on the end of business the Monday before Election Day.⁵²

As a result of the confusion, weekend in-person voting no longer existed for non-UOCAVA voters.⁵³ The plaintiffs, Obama for America, filed a complaint asserting that the differentiated treatment between UOCAVA and non-UOCAVA voters, coupled with the reduction in hours during the three-day period before Election Day, violated the Equal Protection Clause.⁵⁴ In support of their argument, plaintiffs submitted social science data...