Thumb on the Scale? Josh Douglas Criticizes Supreme Court Election Law Deference to States

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[Image courtesy of texaswatch]

A forthcoming law review article by the University of Kentucky’s Josh Douglas criticizes the U.S. Supreme Court for giving too much deference to state election laws at the expense of federal protections.

The piece, entitled (Mis)Trusting States to Run Elections, examines the approach of the current Roberts Court and argues that state laws are receiving lighter scrutiny than similar laws at the federal level. From the abstract:

Current Supreme Court doctrine defers too readily to states’ voting systems. In the process, the Court has removed Congress from the elections business. The Court has done so not explicitly but through two judicial maneuvers, one substantive and the other procedural, that place tremendous trust in states: lowering the bar for the state interest prong of the constitutional analysis, and forbidding facial challenges to state rules on election administration. The Court has credited any state assertion of “election integrity,” even if that is not the actual impetus for the law under review. It also will reject a facial challenge to a state voting rule, thereby leaving the law in place until a plaintiff has gathered actual evidence of the law’s impact on particular voters. The Court has not treated Congress the same, demonstrating its willingness to invalidate a federal voting rule on its face even when Congress has asserted a more detailed rationale for the law.

To support this analysis, Douglas compares recent treatment of state voter ID and proof-of-citizenship laws with the Court’s invalidation of a key portion of the Voting Rights Act in the Shelby County case. This unequal treatment, he suggests, represents an “unspoken, pernicious trend” in elections which undermines the right to vote.

What, then, is the solution? I don’t know if Douglas would call himself an “election geek” but he certainly is singing a familiar song when he extols the virtues of data:

Heightened judicial scrutiny helps courts root out partisanship as the basis for an election statute. Often a state will have a valid regulatory or economic need for an election law, as it must administer an election. But a court should require a state to actually articulate that need, instead of resting on generalized and amorphous notions of “election integrity” without any evidence of the harm the state is actually trying to combat. It also should not narrow the scope of possible litigation to only as-applied challenges, as courts should invalidate onerous, partisan-motivated laws before they infringe voters’ rights in an actual election.

The test should be the same for both federal and state election regulations: has the legislature compiled specific evidence regarding the harm it is trying to avoid or the particular reasons for the law it enacts? Moreover, the Court should permit facial challenges when a law infringes an individual’s right to vote without a specific, permissible justification. Through the current unequal treatment, states are emboldened to enact more restrictive election administration laws in the name of “election integrity,” even though everyone knows the real purpose behind the law: partisan motivation. More meaningful judicial review will at least give states pause before passing a new election law, because they will have to ensure they have a valid justification, beyond just partisan politics, for promulgating the rule. States will know that they will be subject to broader and more meaningful judicial oversight. (p. 49, citations omitted, emphasis added)

This is a fascinating and important piece and one even non-lawyers interested in elections should take time to review and digest. Congratulations and thanks to Josh for writing and sharing it with the field!

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