William & Mary Bill of Rights Journal


COVID-19 has wreaked havoc on so much of our lives, including how to run our elections. Yet the federal courts have refused to respond appropriately to the dilemma that many voters faced when trying to participate in the 2020 election. Instead, the courts—particularly the U.S. Supreme Court and the federal appellate courts—invoked a narrow test that unduly defers to state election administration and fails to protect adequately the fundamental right to vote.

In constitutional litigation, a law usually must satisfy a two-part test: (1) does the state have an appropriate reason for the law and (2) is the law properly tailored to achieve the state’s goals? A court will force a state to satisfy the first prong by demonstrating a “compelling” interest under strict scrutiny or still an important interest under lower intermediate-level scrutiny. The Court has adopted a similar test for election litigation, using the framework from two cases, Anderson v. Celebrezze and Burdick v. Takushi. If an election law imposes a severe burden on voting rights, then the Court applies strict scrutiny review. But under this Anderson-Burdick framework, when a law does not create a severe burden on voters but still impacts the right to vote, courts must apply intermediate-level scrutiny by identifying “the precise interests put forward by the State as justifications for the burden imposed by its rule” and determining “the extent to which those interests make it necessary to burden the plaintiff’s rights.” Six years ago, I wrote a law review article that explained how the Supreme Court has too readily deferred to states in how to run their elections, derogating the constitutional right to vote in the process. “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.” As I recounted, the Court had essentially failed to require states to offer “precise interests” to justify a restrictive voting rule or explain why “those interests make it necessary to burden” the right to vote.

The problem has only become worse as a renewed, undue deference doctrine has emerged. The Court has not explicitly overruled the Anderson-Burdick test, but its jurisprudence and the case law from the circuit courts of appeals in 2020 demonstrates that there is little federal judicial protection for the constitutional right to vote. This undue deference to state legislatures and election officials helps to explain why voting rights plaintiffs lost so many cases in the lead-up to the 2020 election.

Much commentary about these cases focused on the “Purcell Principle,” the doctrine that tells courts not to change election rules too close to an election for fear of creating chaos and confusion. As David Gans wrote, “[b]y privileging the status quo and preventing courts from issuing remedies close to Election Day, it downgrades the right to vote—long described as ‘preservative of all rights’—into a second-class right, which inevitably harms the marginalized and less powerful.”

But there is an additional, more concerning problem with these cases: they too readily deferred to state legislatures and election officials on how to administer elections, allowing infringements on the constitutional right to vote without sufficient justification. At times, the courts found minimal burdens on voters, while in a few instances courts lamented that voters will probably suffer a burden on their ability to vote but still upheld the states’ practices because of a perceived need to defer. Courts blindly said that election administration is the province of the state legislature or credited general assertions of the goal to ensure “election integrity,” without more. There was also a reinvigoration of the “independent state legislature” doctrine, which posits that state legislatures have plenary power to regulate federal elections without interference from state courts. Ultimately, the protection of the right to vote turned into an undue deference standard, one that places a thumb on the scale of states, especially as an election draws near. Thus, the problem is not only that courts applied the Purcell Principle and refused to invalidate state election rules too close to the election to preserve the status quo; they also too readily deferred to states and thereby devalued the constitutional right to vote.

That deference carried over into the post-election litigation in 2020, although it was much more justifiable in that setting. The Trump campaign and Republican supporters filed suits in at least Arizona, Georgia, Michigan, Nevada, and Pennsylvania, as well as directly to the U.S. Supreme Court, and all of those suits failed. One might say that the courts “deferred” to the states’ election apparatus in that judges refused to invalidate the results of a just-completed election. At times, the courts in the postelection litigation relied on a doctrine of laches (that plaintiffs brought the lawsuits too late) or lack of standing. But courts also rejected the claims on the merits, noting that undoing an election after the fact would disenfranchise millions of voters or that the specific allegations were not enough to change the result. Either way, the post-election cases say less about the future of election law doctrine—except that courts are extremely reluctant to entertain claims to overturn an election—than do the pre-election cases on the administration of an upcoming election. Those preelection cases exhibit an undue deference standard that refuses to question state processes even in the face of strong evidence of likely disenfranchisement.

This Article shows why the federal courts’ jurisprudence toward the right to vote in these recent cases is so concerning. Part I recounts the 2020 pre–Election Day litigation to demonstrate how the U.S. Supreme Court and the federal appeals courts too readily deferred to states and election officials without requiring states to identify the “precise interests” that their laws promote or why it was “necessary” to burden voters’ rights. It also explains how several Supreme Court justices and at least one circuit court breathed new life into the independent state legislature doctrine. Part II illustrates why this jurisprudence is wrong under Anderson-Burdick and explains how it devalues the right to vote, the most fundamental right in our democracy. Deference to state legislatures is particularly inappropriate in election cases given legislators’ inherent incentive to craft election rules to help keep themselves in power. Part III suggests that if the courts do not alter their jurisprudence, then the only solution may be robust federal legislation or a constitutional amendment that enshrines the right to vote in the U.S. Constitution and requires states to justify, with specificity, any infringements on that right.