By Irfan Mahmud | November 15, 2020
In this heavily litigious election year, courts throughout the country have been frequently ruling on election law challenges. As state legislatures and courts worked in tandem to make voting more accessible during the unique context of a pandemic, friction resulted over the role of the courts in election law. Courts determine the constitutionality of election regulations by weighing the burden such regulations place on voters against the state interests they advance. Lower courts have generally been convinced by the weight of the practical burdens voters would face during a global pandemic to rule in favor of making the franchise accessible. By contrast, the Supreme Court and some appellate courts have weighed abstract state interests advanced by state actors, e.g., protecting against voter fraud or confusion, more heavily in this inquiry, ruling against judicial changes to election laws.
As a result of this rift in approach between lower and higher courts, litigators will need to craft convincing arguments going forward that both take advantage of lower courts’ sympathy for making voting accessible, while also catering to the Supreme Court’s sometimes dispositive consideration of states’ interests.
Two seminal Supreme Court cases established the balancing framework that is currently used to assess the constitutionality of election regulations that could burden the right to vote. The doctrine that was first formulated in Anderson v. Celebrezze (1983) and reiterated and clarified in Burdick v. Takyushi (1992) (“Anderson–Burdick”) applies a flexible standard to determine what degree of scrutiny a court should give an election regulation based on the law’s burden on the right to vote weighed against state interests advanced by the law: the more burdensome a regulation, the more compelling a state’s interest must be to justify the regulation.
Recent lower court cases have demonstrated an inclination for courts to use Anderson–Burdick jurisprudence as a tool to remove burdensome requirements for absentee voting during COVID-19, such as witness or notary requirements. However, the newly solidly conservative Supreme Court bench believes otherwise. The high court has sided with conservative litigators in deferring to state interests – relying on the so-called Purcell doctrine – and viewing, as a result, the authority of the courts to intervene in matters of state law as limited.
The Court invokes the Purcell doctrine separately – but not totally independently – from Anderson-Burdick. This doctrine was announced in Purcell v. Gonzalez (2006) and reaffirmed this year in Republican National Committee v. Democratic National Committee (2020). The Purcell principle states that courts should refrain from changing election regulations close to an election. While doctrinally distinct from Anderson-Burdick, the Purcell doctrine itself also relies on the consideration of abstract state interests – primarily the objective of avoiding voter confusion. In practice, it has served as a judicial backstop to the liberalization of election laws, and has not necessarily succeeded in its objectives: appellate courts reversing lower court election law rulings even closer to the election serves to only sow more confusion (as demonstrated, for example, by the recent decision in South Carolina).
As predicted by their concern for voter burdens, lower courts have pushed back on the use of Purcell. For instance, in People First of Alabama v. Secretary of State of Alabama (2020) the Eleventh Circuit explicitly limits the scope of Purcell, stating that “Purcell is not a magic wand that defendants can wave to make any unconstitutional election restriction disappear so long as an impending election exists.” The Purcell doctrine will be less relevant – and Anderson-Burdick a truer balancing – when laws are changed farther in advance of an election. However, in this election, as states changed laws in response to unpredictable and unprecedented circumstances, Purcell has had a powerful influence.
While the Supreme Court has not yet substantively engaged with the lower courts’ application of the Anderson-Burdick balancing test, the dissent to a Fourth Circuit order to rehear en banc a refusal to remove absentee ballot witness requirements is more illuminating. Though the Circuit Judges in that case, Middleton v. Andino (2020), invoke the same arguments the Supreme Court does, they make an effort to make concrete the state interests and diminish the practical voter burdens. They point to the state interest of voter fraud, which they call “indisputably” a “compelling interest,” and offer examples of how that is a concrete interest, pointing to a recent election in neighboring North Carolina that was overturned due to absentee ballot fraud. Likewise, they spend considerable time downplaying the practical burdens of witness requirements on the voters even during COVID-19. This in-depth analysis shows that even those conservative jurists in appellate courts who tend to agree with the Supreme Court’s reasoning have responded to the trend in the lower courts by concretizing the state interests (in this case, fraud) and weighing them more heavily.
One of the few cases in which the Supreme Court has sided with the lower courts is Republican National Committee v. Common Cause Rhode Island (2020). In this case, the original parties, Common Cause Rhode Island and the Rhode Island Secretary of State Nellie Gorbea, stipulated to a consent decree in which Gorbea agreed to suspend witness requirements for absentee ballots. In an appeal brought by the Republican National Committee (RNC), as intervenors, challenging the decree, the First Circuit denied their requested stay, relying on the Anderson-Burdick framework to show that witness requirements are overly burdensome on voters during the pandemic. The Supreme Court agreed with the First Circuit in denying the RNC’s emergency application for stay because elected state officials did not support the RNC’s position to stay the district court ruling. It seems that the Court will at least require some showing from state officials that they themselves wish to keep the state election laws in place in order to side with the abstract state interest in Anderson-Burdick balancing.
Now that the 2020 General Election has concluded, it is a time for reflection on this election year that set records for both the highest number of lawsuits and highest number of voters. As legislators and litigators gear up to improve the electoral system in response to this year’s challenges, the courts will have more power to rule without the precondition for the Purcell doctrine – the closeness of the election – looming so near at hand.
Litigators in the voting rights space should capitalize on this willingness at the lower court level to prioritize accessibility and a growing effort by higher courts to identify concrete interests. The courts have shown an openness to accepting specific voter burdens, as evidenced by data, against abstract state interests, which frequently have no basis in evidence. In crafting their arguments, litigators must present data and show how in application, the election regulations result in voter disenfranchisement – and how can that truly serve a state interest?
There’s at least one positive from the jumble of election law cases decided before the 2020 election: evidence. Going forward, litigators will be able to use data from the 2020 elections themselves, and the vast records amassed during all the related litigation (pre- and post-voting), to help debunk some of the state interests, such as voter fraud, typically advanced in election litigation. They can show, for example, that when voting is more accessible and more ballots are cast, there is no uptick in fraud.
Ultimately, once the dust settles on the 2020 election and the accompanying litigation, the fight to protect the fundamental right to vote will continue accommodating the judicial positions encountered this year. As a consequence, litigators must also continue to preempt state defenses on the grounds of maintaining fair elections, voter integrity, and voting undiluted by unqualified voters by showing that those concerns are not rooted in actual consequences of expanded voter access. They must engage with the likely challenges that will come from the Supreme Court and invent clever ways to engage with the Purcell doctrine and other arguments that conservative litigators will use to persuade the Supreme Court and like-minded judges in the circuit and district courts. Only through this push and pull will the fundamental exercise of the franchise truly be free and open to all.
Irfan Mahmud is a 2L at Harvard Law School who is interested in political law and invested in protecting the fundamental right to vote in the U.S.