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Election Law @ Moritz

Election Law @ Moritz

Free & Fair

Hurricanes and Voting Rights

In response to Howard's request, I hopefully will weigh in more deeply on the constitutional analysis when I get a chance.  Meanwhile bottom line: it's complicated.  There is deep conceptual uncertainty about the nature of the Anderson-Burdick balancing test, on which much of the Supreme Court's analysis of election regulations relies.  Anderson-Burdick grew out of Equal Protection law, but also First Amendment. I've been writing recently that, if Equal Protection is at issue, then there needs to be differential treatment among citizens by the government with respect to the opportunity to vote--not just disparate impact of laws that treat all voters equally.  If this is correct, then one would need to look for disparate treatment by Florida among voters with respect to the circumstances arising from the hurricane.  The plaintiffs make such a claim, but I haven't had a chance to look at it closely.  

But others see Anderson-Burdick as not requiring any differential treatment.  More like substantive due process claims, and specifically the "undue burden" analysis for abortion regulation, these scholars and judges think there is no comparative inquiry necessary; as long as some voters are burdened with respect to voting, then there is a triggering of the sliding-scale balancing under Anderson-Burdick.  I would say that many lower courts see it this way, but not necessarily the Supreme Court. 

In a new article, forthcoming in the University of Chicago Law Review, I set forth an alternative "due process" analysis to the traditional Anderson-Burdick approach under equal protection.  Although this article doesn't address the kind of emergency situation involved in the Hurricane Matthew case, the basic concept of the article could be applied.  The article argues that Due Process employs a principle of fair play that constrains partisan overreaching on the part of state governments.  Based on available evidence I've seen, one could easily argue--as the plaintiffs have (although not relying on Due Process)--that Governor Scott's refusal to extend the voter registration deadline was pure partisanship.  He practically admitted as much, saying "this is politics" when explaining the reason for his refusal. 

There's been a lot of important recent scholarship on what the Supreme Court should do to clarify the deep uncertainty associated with the Anderson-Burdick balancing test.  Sam Issacharoff, Pam Karlan, and my Moritz colleague Dan Tokaji --as well as some of the other guest bloggers this month -- all have written major new articles addressing the issue, all of which (I think) are available on SSRN or elsewhere on the web.  And there maybe be others (if so, I welcome hearing about them!). 

Finally, I note that there was also a Voting Rights Act claim in the case, and there is parallel uncertainty about how the Court should develop the "results" test under section 2 of the Voting Rights Act, especially as applied to regulation of the ability to cast a ballot (rather than redistricting cases) in the wake of the Court's nullification of section 5 in Shelby County.  Again, Pam and Dan (among others) have made important contributions to the scholarship in the area, but the Court has yet to settle the issue.

As I observed in a quick tweet after the TRO was announced today, hurricanes themselves are not unconstitutional--the weather itself is never state action--and thus the relevant question is the appropriateness of the government's laws and conduct to handle such emergencies.  As one thinks about this Florida case, one should also compare the federal court order issued at the end of the day during Ohio's primary election this year, when there was a major car accident on a bridge.  The court issued a TRO without there even being a plaintiff or a case.

Edward B. Foley is Director of the Election Law @ Moritz program. His primary area of current research concerns the resolution of disputed elections. Having published several law journal articles on this topic, he is currently writing a book on the history of disputed elections in the United States. He is also serving as Reporter for the American Law Institute's new Election Law project. Professor Foley's "Free & Fair" is a collection of his writings that he has penned for Election Law @ Moritz. View Complete Profile


Edward B. Foley

Gerrymandering as Viewpoint Discrimination: A "Functional Equivalence" Test

Edward B. Foley

A First Amendment test for identifying when a map is functionally equivalent to a facially discriminatory statute.

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In the News

Daniel P. Tokaji

This is why US election ballots routinely go missing

Professor Dan Tokaji was quoted in USA Today about the prevalence of missing election ballots.


"Most of the time, it just goes unreported because it doesn't affect the result," Tokaji said. 

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Info & Analysis

Supreme Court Finds Partisan Gerrymandering Claims to be Non-Justiciable Political Questions

In a 5-4 decision, the U.S. Supreme Court issued an opinion on Thursday determining that claims of partisan gerrymandering are political questions beyond the reach of the federal courts. The opinion resolved disputes originating in North Carolina and Maryland, in the cases of Rucho v. Common Cause and Lamone v. Benisek.

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